Drunk Driving

Freedom is the most important right you have, but when you are facing a charge of driving under the influence (DUI), it may be in jeopardy. DUI offenses can also carry serious monetary fines or impact other rights, such as your right to operate a motor vehicle. Criminal charges are noted in your permanent record, potentially affecting your employment or ability to get a future job.

A Barrix Law Firm attorney, experienced in criminal defense and handling DUI cases, is your best option if you find yourself in this situation. If you're stopped on suspicion of DUI, generally speaking, there are a number of things that can happen once a police officer has pulled you over:

Field Sobriety Test ― The officer may ask that you participate in a field sobriety test. These tests are voluntary, although the officer may not indicate such when you are asked to perform the test.

Preliminary Breath Test ― The police officer may also ask you to take a roadside breathalyzer test. Refusing to participate in either the field sobriety test or roadside breathalyzer test cannot be used to prove your guilt; however, you may be charged with a civil infraction and fined a small amount.

Furthermore, an officer can still place you under arrest if he or she has reason to believe you are intoxicated or under the influence of drugs.

Chemical Test ―At the police station, you are required to undergo a chemical test to determine your blood alcohol content. Under Michigan law, you cannot refuse this test without automatic penalties, including a one-year suspension of your driver license and points added to your record. If this is your second offense, the automatic penalties are greater.

What many drivers do not know is that there are precise rules and procedures that law enforcement must follow when they suspect you of DUI. Our team is knowledgeable in these procedures and know how to enforce your rights under the law. If I’ve been charged with DUI, what is going to happen? Each case is unique, so it’s difficult to say what is going to happen, but there are a number of potential consequences and penalties:

Financial Penalties

There are annual fees that you must pay. These differ depending on the charge and the circumstances of your case.

Driver's License Suspension

A DUI, or operating while intoxicated charge can carry with it a driver license suspension, or, for repeat offenders, even a license revocation. While you can get your license back after a period of time, it may be restricted by certain conditions. There are penalties for driving with a suspended driver license, so it is important that you understand your rights and responsibilities during this time.

Criminal Record

There is a range of different charges facing people found to be driving under the influence of drugs or alcohol, depending on the severity of the situation. In many cases, you are facing a misdemeanor charge on your record, but there are some cases where you can be charged with a felony.

Because both a misdemeanor and felony charge can impact your future, it is important that you let our attorney advise you. Competent criminal defense enforcing your rights If you have been charged with a DUI or similar crime, act quickly and contact us about your case. We offer free consultations and can take your call on a weekend or holiday to best fit your schedule.

Summary of the Michigan Drinking and Driving Statutes

ABBREVIATIONS: OWI; OUIL; UBAL; OWVI; PER SE; OUID

OWI - Operating While Intoxicated, the “drunk driving law”. It can be proven in either of two ways: the driver was “operating under the influence of liquor” or the driver was operating with an unlawful body alcohol level. CJI2d 15.1. (All references to “CJI2d” are to the Criminal Jury Instructions, second edition.)

OWI – Operating While Intoxicated, – BAC of 0.17 or more – 1st Offense, the “Super Drunk Driving ” law or ALSO CALL OPERATING WITH A HIGH BAC. This is an enhanced violation of the the OWI, drunk driving, law. The additional element requires the elements of the OWI plus the additional element or fact of a breath or blood alcohol content of .17 or more.

OUIL - Operating Under the Influence of Liquor, this looks at the quality of the driving. Requires that an operator’s ability to operate a motor vehicle in a normal manner was “substantially lessened” as the result of drinking alcohol. CJI2d 15.3(2)

UBAL - Unlawful Body Alcohol Level, this looks at the amount of alcohol in a person’s breath, blood, or urine. The defendant was operating the vehicle with a body alcohol level of 0.08 grams of alcohol or more per 100 milliliters of blood/210 of breath/67 milliliters of urine. CJI2d 15.3(1)

OWVI - Operating With Visibly Impaired, the defendant w as operating the vehicle with less ability than would an ordinary careful driver due to drinking alcohol. CJI2d 15.4

PER SE - A different way of referring to UBAL.

OUID - Operating under the Influence of Drugs, the defendant was operating the vehicle with less ability than would an ordinary careful driver due to the driver being under the influence of a controlled substance or a combination of alcohol and a controlled substance.

DRIVING OFFENSE STATUTES

1. Operating While Under the Influence of Alcohol, a controlled substance or combination of alcoholic liquor and a controlled substance. MCL 257.625(a).

2. Operating with an alcohol content of 0.08 grams or more. MCL 257.625 (1)(b).

3. OPERATING wih a High BAC .17 GRAMS OR MORE. MCL 257.625((1)(c).

4. Operating while visibly impaired due to the consumption of alcoholic liquor, a controlled substance or a combination thereof. MCL 257.625(3).

5. Operating a vehicle with any amount of a controlled substance listed in Schedule 1, MCL 333.721(2) of the Public Health Code. MCL 257.625(8).

6. Operating a motor vehicle while intoxicated, impaired, or having any amount of a Section 1 controlled substance causing death. MCL 257.625(4)

7. Operating a motor vehicle while intoxicated, impaired, or having any amount of a Section 1 controlled substance causing serious impairment of a body function. MCL 257.625(5).

8. Operating a motor vehicle while under the age of 21 years with any body alcohol content (usually in excess of 0.02 grams) MCL 257.625(6).

9. Operating a motor vehicle while intoxicated, impaired, causing death while intoxicated, impaired, or with any controlled substance; or causing injury while intoxicated, impaired, or with any controlled substance and also while another person less than 16 years of age is occupying the vehicle. MCL 257.625(7).

10. Operating a snowmobile while under the influence, having an unlawful body alcohol level, or while impaired is prohibited by MCL 324.8127

11. Operating a vessel (boat) while under the influence, having an unlawful body alcohol level, or while impaired is prohibited by MCL 324.80176.

PENALTIES FOR DRIVING OFFENSES

DRINKING OFFENSES – DRIVER

Maximum-Jail- Fine- License- Car

A. No injuries

1. Zero Tolerance-257.625(6)

-1st offense N/A $250 30 day suspension N/A (restricted immediately) MCLA 257.319(8)

-2nd offense 93 days $500 90 day suspension

2. CDL-a. 257.625m (.04)

-1st offense 93 days $300 OPR – 90 day suspension. permissive immobilization immediate restriction (<180 days) – CDL – 1 year – HAZ – 3 years.

-2nd offense w/i 7 years 1 year $1000 OPR – 1 year revocation -immobilization – CDL – 1 year revocation (90 days to 180 days)HAZ .

3rd offense ever 1-5 years OPR – 5 yr. revocation or 30 days – CDL – life revocation 1 year & community HAZ – service 60 days -180 days

b. 257.625(1),(3),(4),(5),(6),(7) & .625m

-1st off CDL – 1 yr. rev.

-2nd off CDL – 10 yr. rev.

3. OWVI- 257.625(3)

-1st off. 93 days $300 90 day suspension immobilization permissible

immediate restricted. 257.904d

180 days if controlled substance. <180 days)

-2nd off. (See OUIL 2nd)

-3rd off. (See OUIL 3rd)

4. OUIL/UBAL – OWI 1st Offense

-1st off 93 days $100/500 180 day suspension – immobilization permissible (“hard” 30 days suspension) 257.904d <180 days

-2nd off w/1 in 7 years 5 days-1 yr $200/1000 revoked 1 year permissive forfeiture or mandatory immobilization (30 days-90 days) (24 days – 180 days)

-3rd off Ever 1 yr.-5 yrs. $500/5000 revoked 5 years permissive forfeiture or 30 days – mandatory 1 yr. and com. immobilization service (60 days (6 mos. to 3 years)- 180 days)

5. OWI High BAC Super Drunk Driving - Up to 180 days jail, immobilization permissible (“hard” 45 days suspension) followed by 1 year restriction with ignition interlock device(blow and go). 1 year counseling required.

Maximum-Jail- Fine- License- Car

6. Child Endangerment 257.625(7)

-1st off. 1 year $1000 90 days permissible forfeiture immediate res. and permissible immobilization <180 days (257.625n, .904d)

-2nd off. 1-5 years $500/5000 1 year rev. permissive forfeiture or 30 days – and/or mandatory

1 year jail and immobilization 60-180 days (24 days – 180 days) community service 257.904d

-3rd off. 1-5 years $500/5000 mandatory immobilization or 30 days – (6 mos. to 3 years) 1 year jail and 60-180 days community service

B. Injuries

-1st off Serious Impairment 257.625(5) -1st 5 years $1000/5000 License revoked forfeiture orimmobilization permissible

-2nd off. Habitual Habitual License revoked mandatory immobilization (24 – 180 days) .904d(1)(b)

mandatory imm. (6 mos – 3yrs)

-3rd off. Habitual Habitual License revoked mandatory immobilization (6 mos to 3years). 904d(1)(c)

2. Death 257.625(4)

-1st 15 years $2500/10000 License revoked permissible immobilization .904d(1)

-2nd off. Habitual Habitual License revoked mandatory immobilization (24 days to 180 days). 904d(1)(b)

-3rd off. Habitual Habitual License revoked mandatory immobilization (6 mos. to 3years) 904d(1)(c)

DRINKING OFFENSES – OWNER

Jail- Fine- License- Car

A. No injuries

Allowing

OUIL/UBAL/OWVI -1st off 93 days $100/500 .904d(1)

B. Injuries

1. Death 5 years $1500/10000 permissive forfeiture 257.625n(1)

2. Serious Imp. 2 years $100/6000 permissive forfeiture 257.625n(1)

DEFINITIONS

“Operating”- Operating means driving or having actual physical control of the vehicle. CJI2d 15.2. A person asleep behind the wheel of a motionless car is not operating the vehicle. People v Pomeroy, 419 Mich 441, 355 NW2d 98 (1984). However, a person who is unconscious behind the wheel with the car running and the transmission in drive, although foot is on the brake pedal “is operating”. People v Wood.450 Mich 399, 538 NW2d 351 (1995). Even though the defendant is behind the wheel of a stationary car, a conviction is justified where there is “sufficient or direct circumstantial evidence” that the defendant operated the car while under the influence of liquor prior to discovery by the police. People v Schinella, 106 Mich App 213, 407NW2d 621 (1987);People v Smith, 164 Mich App 767, 417 NW2d 261 (1987); and People v Solmonson, 261 Mich App 657, 683 NW2d 761 (2004).

Public Place - A public place is a “place open to the public or generally accessible to motor vehicles”. CJI2d 15.2 a shopping center parking lot and the pit area of a race track are both places that are “generally accessible to motor vehicles”. People v Hawkins (on remand), 181 Mich App 393, 448 NW2d 858 (1989); People v Nickerson, 227 Mich App 434, 575 NW2d 804 (1998). See generally People v Tracy,18 Mich App 529, 171 NW2d 562 (1969).

STATUTORY DRUNK DRIVING PRESUMPTIONS

None

IMPLIED CONSENT LAW

A driver is presumed to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in the driver’s breath, blood, or urine. MCL 257.625c

The person must be arrested for a State Law or a Local Ordinance substantially corresponding to the State Law. However, a person who has hemophilia, diabetes, or a condition requiring the use of an anticoagulant is not considered to have given consent to a blood draw.

CHEMICAL TEST RIGHTS

The arrested driver must be advised of the following:

1. if the driver takes the chemical test at the request of a peace officer, the driver has the right to demand that a person of his or her own choosing administer one of the chemical tests.

2. The results of the test are admissible in a judicial proceeding and will be considered with other admissible evidence in determining the driver’s innocence or guilt.

3. The driver is responsible for obtaining a chemical analysis of the test sample.

4. If the officer’s request is refused, a test shall not be given without a court order, but the officer may request one.

5. Refusing the request to take a test will result in the suspension of the driver’s operator’s license for a period of one year and the addition of 6 points to his or her driving record. MCL 257.625a(6).

REFUSAL OF CHEMICAL TESTING

1. PROCEDURE:

The peace officer shall immediately forward a written report to the Secretary of State; the driver must request, within 14 days, a hearing before the Secretary of State or the penalties will be imposed by default. MCL 257.625d(2), 257.625f(1).

2. WHAT STATE MUST SHOW:

when a driver requests a hearing in front of the Secretary of State, the peace officer must establish that:

A. There was reasonable grounds to believe that the driver had committed one of the enumerated offenses,

B. The driver was placed under arrest for one of the enumerated offenses,

C. The driver was advised of his chemical test rights set forth in MCL 257.625a(6) and

D. The driver’s refusal to submit to the test was unreasonable. MCL 257.625(f)(4)

Either party may be represented by an attorney.

3. PENALTIES;

A. The Secretary of State shall suspend the driver’s license for a period of one year if this is a first implied consent suspension or if any prior implied consent suspension was more than 7 years prior. MCL 257.625f(7)(a)

B. A driver who has had a second implied consent suspension within 7 years will have the driver’s license suspended for 2 years.

4. CIRCUIT COURT REVIEW:

A. A driver may have the suspension completely set aside if there has been a violation of the Constitution of the United States, the Constitution of the State of Michigan, or a Statute; if it is in excess of the Secretary of State’s statutory authority or jurisdiction; if it is made upon unlawful procedure resulting in material prejudice; if it is not supported by competent material, and substantial evidence on the whole record; if it arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion; or if it affected by other substantial and material error of law. MCL 257.323(4).

B. A driver may be granted a restricted license by the Circuit Court if it is the driver’s first implied consent suspension. MCL 257.323(3); 257.323c(1)

5. COURT USE OF REFUSAL:

The court may give the following jury instruction, especially if requested: “evidence has been admitted in this case that the defendant refused to take a chemical test. If you find that the defendant did refuse, that evidence was admitted solely for the purpose of showing that a test was offered to the defendant. That evidence is not evidence of guilt.” CJI2d 15.9.

BLOOD DRAW STATUTE

Only a license physician, or an individual operating under the delegation of a licensed physician who is acting in a medical environment may withdraw blood at a peace officer’s request. MCL 257.625a(6)(c).

PLEA BARGAINING STATUTE

A person charged with operating while intoxicated, operating while impaired, operating with any amount of controlled substance, operating in violation of the above causing death, operating in violation of one of the above causing serious injury, or while a passenger under the age of 16 is not permitted to plead to being a person under the age of 21 and having alcohol content. MCL 257.625(16).

 REFUSAL OF CHEMICAL TESTING

 PROCEDURE:

The peace officer shall immediately forward a written report to the Secretary of State; the driver must request, within 14 days, a hearing before the Secretary of State or the penalties will be imposed by default.MCL 257.625d(2), 257.625f(1).

WHAT STATE MUST SHOW:

when a driver requests a hearing in front of the Secretary of State, the peace officer must establish that:

There was reasonable grounds to believe that the driver had committed one of the enumerated offenses,

The driver was placed under arrest for one of the enumerated offenses,

The driver was advised of his chemical test rights set forth in MCL 257.625a(6) and

The driver’s refusal to submit to the test was unreasonable.MCL 257.625(f)(4)

Either party may be represented by an attorney.

PENALTIES:

The Secretary of State shall suspend the driver’s license for a period of one year if this is a first implied consent suspension or if any prior implied consent suspension was more than 7 years prior.MCL 257.625f(7)(a)

A driver who has had a second implied consent suspension within 7 years will have the driver’s license suspended for 2 years.

CIRCUIT COURT REVIEW:

A driver may have the suspension completely set aside if there has been a violation of the Constitution of the United States, the Constitution of the State of Michigan, or a Statute; if it is in excess of the Secretary of State’s statutory authority or jurisdiction; if it is made upon unlawful procedure resulting in material prejudice; if it is not supported by competent material, and substantial evidence on the whole record; if it arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion; or if it affected