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Drunk Driving OWI Update and Defenses, Link to Michigan State Police Drunk Driving Audit

Posted by attorney Cy Abdo

Michigan has strict drunk driving (OWI) laws. The number of arrests and convictions in Michigan for OWI is extremely high. According to 2014 statistics maintained by the Michigan State Police, 2368 individuals in Macomb County and 4843 in Oakland County were tested for breath/blood in connection with drinking/driving related cases. Unfortunately, the conviction rate is high when it comes to these cases. However, an aggressive defense can mean reduction in the charges, avoiding jail, lessening other sentence penalties (random testing, counseling, AA, community service, vehicle immobilization) and circumventing a felony record. An example of the offenses that we have been able to successfully defend include the more serious charges known as Super Drunk Driving and Felony Drunk Driving.

SUPER DRUNK CASES, .17% OR MORE BLOOD-ALCOHOL CONTENT

The legal limit blood alcohol limit (BAC) for operating while intoxicated (OWI) is .08%. Under Michigan's Super Drunk law, person who operates a vehicle with a "high BAC" of .17% or greater will face harsher penalties:

  • Hard suspension of license for first 45 days (no driving) and restricted with the requirement of ignition interlock for the remaining 320 days. Individuals who violate their restrictions will obtain another license penalty equal to the above; another 45 days hard suspension and another 320 days on ignition interlock.
  • Fine of not less than $200.00 or more than $700.00
  • Up to 180 days in Jail
  • Mandatory 1 year of alcohol/substance abuse rehabilitation
  • Driver Responsibility Fee: $1,000.00 per year for 2 years

It is not logical that someone who has a BAC of .17% should face penalties to this extent when someone who has a BAC of .16% is prosecuted under a much less strict law. It is our opinion that the "Super Drunk" law cannot accurately conclude that a person who has a BAC of .16% is a lesser risk than the person who registers a BAC .17%, and visa versa. You will want to be proactive if you are pulled over and well prepared if you are charged as a super drunk or drunk driving in Michigan. However illogical (the .17 cutoff - see link to BAC chart below), the law intends to sort out those with severe drinking problems and punish them accordingly.

FELONY DRUNK DRIVING: ANY THREE LIFETIME OFFENSES

A person with 2 prior lifetime drinking and driving offenses faces FELONY drunk driving upon being convicted a 3rd time. This means that an old impaired driving (20 years ago) may be counted towards enhancing the charge to a felony (3rd) offense. The maximum penalty for felony drunk driving is up to 5 years in prison. A felony record also means that you can never possess a firearm or possibly even live with someone else that owns a firearm. Avoidance of a felony is not always possible but in several cases we have been able to avoid prison and have the charge reduced to a misdemeanor.

SO YOU WERE STOPPED BY THE POLICE; DO NOT MAKE MATTERS WORSE

If you are ever stopped by the police, you will do yourself a world of good by cooperating to the extent necessary. The police will usually place notes in their report regarding your cooperation. Cooperation does not mean volunteering information. Stick to the questions which are asked by the officer and do not make matters worse by arguing or challenging the officer. In addition, we are able to obtain the police video, if available. The video can be used to challenge a police officer’s assertion that someone was not cooperative. The video may also show our client was able to follow complicated instructions which is consistent with sobriety, not intoxication or foolishness. The video may also verify our client’s ability to perform the field sobriety tests.

FLEEING & ELUDING, RESISTING & OBSTRUCTING ARREST

When I talk about being cooperative, I do not mean that you should help the police or hurt your case. Most of the time, by cooperation, I mean just stand there and do not say anything at all; especially statements that can hurt your case. Do not consider fleeing, leaving the scene, resisting arrest or taking any combative action towards the police. Under Michigan laws, a person that resists or obstructs an arrest or attempts to flee and elude the police faces felony charges.

ASK FOR A SECOND TEST, BLOOD TEST

If you fail to take a breath test or other chemical test, the police may obtain a search warrant for your blood. You should understand that you also face suspension of your license if you refuse the chemical test offered by the police pursuant to Michigan’s Implied Consent Law. In addition, you forfeit your right to obtain a second test of your own choice when you refuse the test which is offered by the police. I would implore anyone who has a very low result (.09% to .12%) or anyway whose tests in the Super Drunk range (.17% to .19%) to request a second test such as a blood test. Your second test may be lower which may justify a lesser charge or no charge if the result is below .08%. A test result which is below .08% may still be charged with Impaired Driving but will be better off than having to defend an OWI. The odds are better for plea bargaining an Impaired Driving down to a non-drinking offense than an OWI.

TALK TO YOUR LAWYER ABOUT POSSIBLE WITNESSES

We hope that our clients can produce witnesses who can testify that our clients were not intoxicated prior to operating a motor vehicle. I have used witnesses with personal knowledge at trial to contest intoxication or to request a reduction in the charges. At our initial consultation, we may ask for our client to provide written statements from persons that were companions of our client on the to the incident. A witness may include friends that were at the bar or party with our client. We are looking for people that can testify that our client was acting sober and coherent. A witness may also include the passenger(s) of our client’s motor vehicle. Again, we are looking for witnesses that can attest to our client’s safe driving.

SOME OTHER USEFUL DUI DEFENSE STRATEGIES

Here’s a few ways our lawyers may be able to win your case. Even if your case involves operating a vehcile under the influence of drugs, prescribed medications or alcohol, the following may be used as a defense to the criminal charge of DUI/OWI:

  1. The traffic stop is illegal or without probable cause
  2. 911 call by a witness that is not identified or produced to testify
  3. Field sobriety tests do not take into consideration disabilities of person.
  4. Field sobriety tests do not take into considerationphysical conditions such as lighting, road, weather
  5. Breathalyzer exceeds allowable variance
  6. Breathalyzer is not properly calibrated
  7. In car and in custody videos may indicate sobriety or appropriate operation of vehicle
  8. Delay in prosecution may be grounds for dismissal pursuant to Due Process argument
  9. Failure to provide Miranda rights after a person is in custody may be grounds to exclude statements.
  10. Preliminary breath test (PBT) has only limited admissibility in Michigan.
  11. Impeachment of witnesses or police based upon inconsistencies or criminal history
  12. Failure to preserve evidence, tapes, photographs

SUBSTANCE ABUSE COUNSELING

Many of our clients are asked to begin counseling if they have a drinking problem, are charged as a repeat offender or are charged with high BAC Drinking and Driving cases which have come to known as the Super Drunk cases.

Additional resources provided by the author

Link to Michigan State Police Drunk Driving Audit which goes back to 1999: http://www.michigan.gov/msp/0,4643,7-123-1586_3501_4626-27728--,00.html

Link to BAC Chart, Approximate Blood Alcohol Content
http://www.cyabdolaw.com/estimated-blood-alcohol-content-bac.html

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