DWI / UBAL / OUIL / OWI / OUIN
Frequently Asked Questions
Q. Can I refuse a preliminary
breath test when Iím pulled over?
A. Yes, unless you are
a commercial driver the penalties that apply for refusing the PBT are
relatively minor. Michigan Law provides that refusing a preliminary breath
test is a civil infraction that caries a fine but no points.
The same however is not true
of the evidentiary breath test, that is, the one you are given at the
police station. (The Datamaster test). A conviction for refusing this
test is called an implied consent violation and will result in an automatic
license suspension. You will also have six points added to your record.
(See Michigan License Suspension Laws).
If you are a commercial driver,
refusing a preliminary breath test is a misdemeanor punishable by imprisonment
for not more than 93 days or a fine of not more than $100.00, and will
result in a 24-hour out-of-service order.
Q. If Iím convicted will
my car be immobilized or forfeited?
A. With a first drunk
driving conviction you face possible vehicle immobilization for up to
6 months. With a second conviction you face mandatory immobilization for
3 to 6 months, and possible vehicle forfeiture. With a third drunk driving
conviction you face mandatory vehicle immobilization for 1 to 3 years;
possible vehicle forfeiture and beginning June 2000, registration denial.
Q. Will I be going to jail?
A. This will depend
largely on the crime you are charged with, your prior record and on the
policy and discretion of the Judge to whom the case is assigned. In Michigan
sentencing on all alcohol related felonies will be controlled by the sentencing
guidelines, and you should discuss this with your attorney. Jail time
for all other alcohol related offenses (non-felonies) will be discretionary
with the Judge, but must be based on statutory guidelines.
For example, in Michigan, first
time OUIL offenders with no priors generally do not go to jail, although
jail time is always possible (up to 93 days), and will depend largely
on the facts of the case and the particular policy of the Judge who passes
sentence. Judges can give jail time even for a first offense.
With a second alcohol related
offense in Michigan within 7 years proceeding the offense there is a mandatory
5 days - 1 year in jail, with not less than 48 hours served consecutively
(a term of imprisonment under this section may not be suspended). There
is the alternative sentence of 30 - 90 days of community service.
With a third alcohol related
offense in Michigan within the prior 10 years the sentencing guidelines
apply and you should discuss with your attorney how these guidelines will
effect your likely sentence. The statute however provides for imprisonment
for 1 - 5 years with not less than 48 hours served consecutively (a term
of imprisonment under this section may not be suspended). There is the
alternative sentence of 30 days - 1 year and community service for 60
- 180 days.
Q. I was never read my rights,
will my case be dismissed?
A. In the context of
a drunk driving arrest, there are really two sets of rights that should
be read to a suspect by the police; the Miranda rights and the chemical
test rights. The Miranda rights are the rights that most of us are familiar
with, and address your right to speak with an attorney before questioning.
A reading of the Miranda rights will include an affirmative statement
by the police that what you say can be used against you in Court. In legal
terms, the Miranda rights only apply to post-custodial statements that
the prosecutor wants to use against you. Thus, if you are placed in custody
but not advised of your Miranda rights, then your attorney can make the
argument that any statements you made after you were placed in custody
(such as the amount of alcohol consumed) cannot be used against you. It
would be a rare case for this failure to lead to a dismissal of your case,
but with the right attorney arguing the right facts, a dismissal might
still be possible.
Chemical test rights are quite
different. They are statutory in nature, and arise out of Michigan's implied
consent law. In Michigan, when you drive an automobile, you impliedly
consent to take a chemical test of your breath, blood or urine. Thus,
after you are arrested, the police officer must read you your chemical
test rights, including your right to have your own (independent) chemical
test. These rights must be read to you before the officer asks you to
take such a chemical test. If you are not properly advised of your chemical
rights, (and offered the reasonable opportunity to have your own test),
then you may be able to keep the police conducted test results out of
evidence. It should also be noted that some Michigan Courts have also
found that the chemical test rights are constitutional in magnitude inasmuch
as they address the accusedís right to gather potentially exculpatory
evidence in his or her own defense. Consequently, under the appropriate
circumstances, a failure to read the chemical test rights might lead to
a total dismissal of the drunk driving case.
In any event, both sets of
rights should be discussed with your attorney so that you can determine
what impact, if any, they might have on your case, and whether or not
a violation in your case is sufficient cause to seek a dismissal.
Q. Why canít I just represent
myself? What can a lawyer do for me?
A. While in theory you
can represent yourself, many courts in Michigan will not allow a plea
of guilty to a drunk driving case without the assistance of an attorney.
Aside from this, the law pertaining to drunk driving is particularly complex.
It is frequently re-written (the last time in Michigan being October 1999),
and becomes more complicated with each revision. The penalties become
more severe as well.
In all drunk driving cases
there are a plethora of complicated procedural and evidentiary rules that
apply, and well as statutory and sometimes even constitutional questions
that need to be answered. There are also sentencing and administrative
Drunk driving cases are also
complicated by the fact that there is usually some form of scientific
evidence, requiring a lawyer that not only understands the law but also
the science involved in your case. This combined knowledge of science
and law will assist your attorney in mounting a zealous defense.
An appropriately qualified
attorney will know what to look for, and will know what facts are and
are not useful. He/she will do whatever is appropriate and necessary in
order to suppress evidence, compel discovery of such things as calibration
and maintenance records for the breath machine or blood testing equipment,
have blood samples independently analyzed, negotiate whenever possible
for a lesser charge or reduced sentence, obtain expert witnesses for trial,
and contest the administrative license suspension.
Q. Will it be advantageous
for me to plea to the charge of attempted OUIL?
A. No, in Michigan,
an attempt is treated like a completed offense as far as licensing and
criminal prosecution purposes are concerned.
Q. What new crimes were
created by the recent changes in the Michigan drunk driving law?
A. Some of the crimes
newly established in Michigan are:
- Driving While License Suspended
Causing Injury, a 5 year felony;
- Driving while License Suspended
Causing Death, a 15 year felony;
- Allowing Another Person
to Drive While License Suspended Causing Injury, a 2 year felony;
- Allowing Another Person
to Drive While Suspended Causing Death, a 5 year felony;
- Endangerment: driving while
impaired, under the influence or Zero Tolerance, with passengers under
age 16, a misdemeanor.
Q. Whatís the best way for
me to find a good lawyer to handle my drunk driving case?
A. The most reliable
way to find a lawyer with a good reputation is to ask other lawyers who
practice criminal law for a recommendation. Friends or family might also
be a good referral source. Another option is to ask the people at the
Court who they might recommend.
When you meet with the attorney,
make sure of four things:
(a) He/she has extensive experience
in OUIL/UBAL/OWI litigation;
(b) He/she has an excellent
understanding of the theory and science behind breath and blood testing
(indispensable in the cross-examination of prosecutionís witnesses);
(c) He/she has ample jury trial
experience, and will take appropriate cases all the way to trial rather
than just "copping out" his clients; and
(d) The financial terms of
representation are clear.
Q. What are the possible
defenses to the OUIL/UBAL case?
A. It is not possible
to point to one defense or group of defenses for every case. Depending
on the facts of your case, the following defenses may or may not apply:
Improper Stop - if
it can be shown that the police did not have a proper cause to stop
your vehicle, then the evidence collected after the stop might be thrown
out. The legal standard is that the stop must be justified by probable
cause or an articulable suspicion that criminal activity was afoot.
Of course, notice of a violation of the traffic code, such as speeding
or weaving, will provide a sufficient basis for the stop as well.
Improper Arrest -
it will be important for your attorney to determine if your arrest was
statutorily and constitutionally proper. This is because an improper
arrest can sometimes lead to the Court throwing out the evidence, and
ultimately to the dismissal of charges.
Improper Police Procedures
Relative to the Chemical Testing - the taking of breath and blood
samples is governed by statues and administrative rules, as is the calibration
and maintenance of the testing instruments. If it can be shown that
the police did not follow these statutes and administrative rules then
the test results can sometimes be thrown out. While this is unlikely
to lead to a dismissal, it does make the case a better candidate for
victory at trial.
Improper Police Procedures
Relative to the Field Sobriety Tests - While there are no standardized
rules applicable to the taking of field sobriety tests, there are police
training manuals and the like that can be used in cross-examination
to show that a police officer did not administer the field sobriety
test(s) properly. There are also scientific studies that show how inaccurate
the field sobriety tests really are. While these facts and circumstances
will almost certainly not lead to a dismissal, they should help to persuade
the jury to view things more favorably for the defendant, and hopefully
result in a not-guilty verdict.
Defects in the Charging
Documents - any irregularities in the charging documents and police
reports can sometimes be used to call the police officerís credibility
into question. The argument to the jury is if the police officer is
mistaken as to the direction your car was traveling then perhaps he/she
is mistaken as to other facts as well. This is critical since the prosecutorís
case usually turns on the testimony of the arresting officer(s).
Suppression of Incriminating
Statements - While the courts seem less and less inclined to suppress
incriminating statements based on a police officerís failure to read
a defendant his/her rights, "non-Mirandized" statements are
still sometimes suppressed. If you made admissions regarding how much
you had been drinking then ask your attorney to determine if Miranda
applies and if these statements can be suppressed.
Increasing Blood Alcohol
- In an unlawful blood alcohol case (UBAL) the prosecutor must show
that your blood alcohol was over the legal limit at the time you were
driving. Thus, if the chemical testing (breath/blood/urine) in your
case was not performed until long after the actual arrest (and presumably
the act of driving) then you can argue to the jury that these chemical
test results should be given less weight. Expert testimony is usual
helpful to drive this point home to the jury. Again, with the proper
underlying facts this might help persuade the jury to view things more
favorably for the defendant, and hopefully result in a not-guilty verdict.
Inaccurate Chemical Test
Instruments - the machines used by the police to test a personís
breath, blood or urine are all subject to inherent inaccuracies. It
is simply not possible for any testing instrument to be 100% accurate
all the time. Blood testing is probably more accurate overall then is
breath testing, which is again probably more accurate than urine testing.
Still, simply because you tested over the limit this does not mean that
you have no defense. Talk to your attorney about how the specific facts
of your case may have cause an inaccurate test result. Keep in mind
also that it is usually necessary to retain an expert to help educate
the jury regarding these inaccuracies.
This list is not exhaustive,
and there may be different or additional defense specific to your case.
The point is that you should not simply walk into court and plead guilty
without first having your case evaluated by competent counsel. This is
because almost all cases can be defended in some manner. This is not to
say that all defenses lead to a dismissal or even a substantial reduction
in the charges, nor does it mean that it makes sense to vigorously fight
every case. However, you should have every opportunity to make fully informed
decisions about all of these things, and this decision making process
will most likely require the advice of legal counsel.
Q. What should I expect
to pay to retain a good lawyer.
A. There is a wide variation
in the fees charged for drunk driving cases, and these depend somewhat
on the reputation and experience of the lawyer but also vary by geographic
location. Most lawyers charge a flat fee for this service, and the overall
fee charged is most often based on the amount of time a lawyer expects
to spend defending your case. More complicated cases obviously require
more time, and because of this as a general rule the better lawyers accept
fewer clients. This allows him/her to spend more hours on each clientís
A new attorney or a general
practitioner in a small community might charge from between $300 and $500
while a specialist with a national reputation may charge up to $15,000
or more, depending on the specific facts of the case.
Other important factors in
determining a proper fee are as follows:
The nature of the offense
itself. For example, is your case a first or second offense, or is it
one of the enumerated drunk driving felonies? This preliminary determination
will partially dictate how much time will be required to properly defend
Are there prior offenses
that are being used for enhancement purposes? Attacking prior offenses
requires the lawyer to spend more time on your case.
Does the fee include trial
and/or evidentiary hearings, and does the fee include the lawyerís appearance
at any administrative hearings, such as the Driver License Appeal Division
for an implied consent hearing.
Does the appeal cover any
appeals, such as an appeal to the Circuit Court for the restoration
of driving privileges after an unsuccessful implied consent hearing.
Regardless of the fee quoted
it is important to both the lawyer and the client for there to be a written
fee agreement, and for the client to understand exactly how he/she is
being charged, as well as what the total fee will be in all circumstances.
Q. What are the sentencing
guidelines, and do they apply in my case?
A. The sentencing guidelines
are just that, guidelines that the judge must follow in determining the
appropriate sentence. The goal of the guidelines is to produce relatively
consistent sentences for all offenders based on his/her prior record and
the specific facts of his/her offense. If you are charged with one of
the drunk driving felony offenses, such as OUIL 3rd, Driving
while License Suspended Causing Death, a 15 year felony, etc., then the
guidelines will apply in your case. Ask your attorney about this when
you first meet with him/her.
Q. My ticket says Iím charged
with a first offense but I have another drunk driving conviction less
than 7 years ago. I havenít gone to Court yet. How can I tell if Iím going
to be charged as a second offender, and under these circumstances, will
I be able to keep my license? Will I be going to jail?
A. The way the law works
now (since 10/99) is that the prosecutor will simply count prior alcohol
related convictions, so keep in mind that doesn't matter if the prior
is an OUIL, OWI, "zero tolerance" or any other alcohol related
driving charge. If you have a prior within 7 years, then your current
charge is potentially a second offense. Unless you were given a ticket
that says "OUIL 2nd", it will be up to the prosecutor to determine
whether or not to enhance the charge to a second offense.
Second offenses are most often started with a complaint and warrant, so
if a ticket was issued that usually (but not always) means it's being
charged as a first offense, and of course, if your ticket says simply
OUIL or otherwise does not denote "second offense", this also
would suggest that you are being charged as a first offender. However,
also keep in mind that the prosecutor can literally seek to amend or change
(enhance) the charge to a second offense at any time before you are sentenced,
and many judges will allow late amendments, so it's probably too early
to tell what will happen with the charge. Once you get to court, and your
lawyer looks at the document called a "complaint", then you
will have a better understanding of the exact charge you are facing.
The above discussion applies primarily to the punitive sanctions, i.e.,
the first/second offense difference in what the Court can and cannot consider
in sentencing you. It gets kind of complicated, but suffice to say that
for a second offense there is a minimum jail sentence of 5 days and/or
30-90 days community service, and up to a maximum of 1 year in jail. (Now
most Courts pretty much give some amount of jail time for second offenses).
Because the Judge will know you have a prior at the time you are sentenced,
even if you are charged or plead guilty to a first offense, the Judge
will often times still give you a sentence consistent with a second offense,
which he/she can do because the first offense carries a possible sentence
of up to 93 days in jail. Thus, even though there is a mandatory sentence
for a second, it's still permissive for a first offense. Bottom line is
it won't make all that much difference what you're charged with, although
itís still probably better that you be charged with a first offense, because
it at least gives your attorney a better argument to avoid jail time,
which is something youíd need to discuss specifically with the attorney
Moving to the driver license sanctions, this is pretty straight forward.
The Secretary of State simply counts prior alcohol convictions within
the appropriate period, then applies the applicable sanctions. Consequently,
it doesnít matter what youíre charged with or plead guilty too, if you
have two alcohol driving convictions within 7 years, if youíre convicted
your license is gone for one year, with no driving whatever during the
period of revocation.
Q. With a repeat offense
(second or third alcohol driving conviction), is there any way for me
to get a restricted driver license? I have court ordered visitation with
my kids, will I be able to drive to see them?
A. Now that the Secretary
of State has the sole jurisdiction over driver license sanctions on drunk
driving cases, with a second offense within 7 years your license will
be revoked for 1 year, and if you have two or more within 10 years, you
will have your license revoked for 5 years.
Sorry for the bad news, but
during this period of revocation, there is literally no way to "get
in front of" the Secretary of State to request restricted driving
privileges. The legal term is "due process", and in the context
of a drunk driving charge you have no due process rights relative to your
driver license. Consequently, thereís really no way to even request a
restricted driver license during the period of revocation. So, it doesnít
matter what your standing in the community is, what special needs you
may have, or anything else, the Secretary of State simply counts priors
and imposes the appropriate license revocations.
Q. Iím charged with a second
offense OUIL, but I think my prior offense is more than 7 years old. What
should my lawyer do to verify this enhanced charge?
A. When counting prior
convictions, the Secretary of State counts from date of prior conviction
to date of current conviction. To understand this, you need to know the
legal definition of "conviction". A conviction occurs when you
either plead guilty or are found guilty by a judge or jury, and this is
the conviction date. This date may or may not actually be reflected on
your driving record, and if itís a close call, the thing to do is to have
your attorney order a copy of the judgment of conviction from the court
where you were previously convicted. This is the document that would be
prepared by the court and will reflect the actual conviction date. If
thereís still some confusion, it is sometimes necessary to order a copy
of the transcript of the plea (or trial), as this would be the most accurate
and persuasive piece of evidence relative to the date of conviction. Again,
keep in mind that in Michigan the conviction date is not the date of sentencing,
but the usually earlier date of the verdict or plea.
Also, since the Secretary of
State counts from conviction to conviction, it doesnít matter when you
are arrested on the second or subsequent offense. If you can wait to plea
guilty, or dely trial long enough that you can get past your 7 year anniversary
date, then you can avoid the imposition of the more harsh license sanction
by the Secretary of State, and in some circumstances, may even avoid losing
your license all together. In this situation you will need a knowledgeable
lawyer willing to do the work required to protect your interests.
Q. How long will
a drunk driving conviction remain on my record?
A. All alcohol
related traffic offenses are crimes, and are classified as either misdemeanors
or felonies. Thus a drunk driving conviction will remain on your record
for life. An important distinction however is regarding the treatment
of this type of conviction by your automobile insurance company. Most
insurance companies will stop considering drunk driving convictions
in accessing auto insurance rates after a period of years. Because thereís
no hard and fast rule on this, itís best to check with your insurance
company to learn what their specific policy is in for drunk driving
Q. Can I have my
drunk driving conviction expunged (set aside)?
A. No. The statute
governing expungement in Michigan specifically precludes a person from
even seeking to have a conviction for a "traffic offense"
(including drunk driving) set-aside. The statute also precludes a Judge
>from setting aside such a conviction.
Q. I pulled over to "sleep
it off", but still got charged with drunk driving. I wasnít driving
when the officer arrived. Can I actually be convicted?
A. Possibly yes. There
are really two separate questions here; were you operating, and was
the arrest valid (lawful)?
To "operate" a
motor vehicle, a person must be in "actual physical control"
over the vehicle. This means that if you are behind the wheel and the
car is running, you are probably operating the vehicle. However, this
determination will depend on the specific facts of your case because
the Michigan Courts have indicated that "once a person using a
motor vehicle has put the vehicle in motion, or in a position posing
a significant risk of harm, this person continues operating the vehicle
until it is returned to a position posing no such risk". Consequently,
if your car is running, but does not pose a risk, then your attorney
might be able to argue that you were not "operating".
Keep in mind though that
the facts of your case must be carefully scrutinized by your attorney
because circumstantial evidence can also be used to prove this element
of the crime. What this means is that if the police find you in a motionless
car, but there is sufficient circumstantial evidence to show that the
car must have been driven by you to that location at some point earlier
in time (such as the mere location of the car, tire tracks, warm hood,
etc.), then the charge can sometimes be sustained using this evidence
of prior operation.
Cases like this must also
be scrutinized by your attorney to determine the legality of the arrest.
This is because the offense (if a misdemeanor) was committed outside
the police officerís presence, and this sometimes makes a warrantless
arrest illegal. But, itís not really that simple. This is because on
the one hand there is a statute that indicates that a warrantless arrest
is valid if the police officer has "reasonable cause" to believe
that a driver was operating while impaired or intoxicated and was involved
in an accident or where any part of a parked vehicle intrudes into a
On the other hand there is
a more general statute that says that a police officer may make a warrantless
arrest if he/she has "reasonable cause" to believe that a
misdemeanor punishable by imprisonment for more than 92 days or a felony
has been committed (all drunk driving cases qualify) and reasonable
cause to believe that the person committed it. Either way, the facts
must be scrutinized to determine if the office had such "reasonable
cause" to make the arrest.
Sometimes a case with an
issue of "operation" must be taken to trial so that the jury
can make the final determination of these fact questions. The jury might
not want to convict where the driver did the "right thing"
and tried to sleep it off.