Michael Kelly:
On October 1, 2003, the Michigan Legislature enacted a new Drunk Driving Law. This legislation is best known for lowering the maximum blood alcohol level content allowed to .08, but also has many other ramifications as will be explained.
While no driver expects this law to affect him or her, you will be in violation if you consume alcoholic beverages and operate a motor vehicle with a blood alcohol content of .08 or more. For a 180-pound person, that is four (4) drinks. A police officer can stop and interrogate you if he or she has a reasonable suspicion you may be over the limit. The officer may ask you to perform dexterity tasks, such as walking a straight line, touching your nose with your eyes closed, or reciting the ABCs.
You may also be asked to submit to a Preliminary Breath Test (PBT), which is a portable Breathalyzer that officers carry in their cruisers. If the officer concludes that you are intoxicated or the PBT indicates that your blood alcohol content is .08 or more, you will be placed under arrest, handcuffed, and transported to the police station or county jail. There you will be asked to submit to another chemical test to determine the alcohol content of your blood.
Do I Have To Submit To A Chemical Test On The Roadside?
The PBT is an investigatory tool for police officers, and the results are generally not admissible in court. The penalty for refusal is $100 plus court costs. Persons under age 21 will also have two (2) points added to their driving record. Since the reading obtained on the PBT is often the officers sole reason for placing you under arrest, you should REFUSE this test.
Do I Have To Submit To A Chemical Test At The Police Station?
Michigan, like most other states, has enacted an Implied Consent Law. Under the Implied Consent Law, when you obtain your drivers license, you give permission to the State to test the alcohol content of your blood in the event you are arrested for drunk driving. The test will analyze one of the following: your breath, blood, urine or saliva. Normally you will be asked to submit to the Datamaster breath test.
Failure to comply with the request may result in the suspension of your drivers license for one (1) year. If you previously refused to submit to a chemical test within the prior seven (7) years, the suspension will be extended to two (2) years. Six (6) points will also be assessed on your driving record.
Officers cannot force you to take the Datamaster breath test, but may seek a search warrant to obtain a sample of your blood, urine or saliva. If a warrant must be obtained, you will be cited for refusal to submit to a chemical test and subject your drivers' license to suspension and six (6) points. Therefore, it is recommended that you SUBMIT to the Datamaster breath test. In addition, test results obtained by warrant are admissible and can be used against you at trial.
The Implied Consent Law requires you to submit one (1) sample of breath on the Datamaster. The officer will request two (2) samples. It is recommended that you REFUSE the second sample thereby depriving the officer of additional evidence with which to convict you.
You are entitled to have a person of your choice administer one of the chemical tests after you have taken the test requested by the police. If you make this request, the arresting officer will take you to a local hospital where your blood will be drawn for testing. Or, as an alternative, your urine or saliva will be collected. You should be aware however, that the results are discoverable by the prosecutor and are admissible, by you or the prosecutor, if you go to trial. The test may simply confirm the Datamaster and make your situation worse; but if the police refuse your request the court may rule the Datamaster test results inadmissible.
Before you submit to a Datamaster breath test, or any other chemical test, you should exercise your right to counsel, regardless of the time of day or night. A highly skilled attorney can make all the difference in these cases. Attorneys experienced in representing those charged with drunk driving who are willing to accept calls after regular office hours are listed in the telephone book. This office accepts such calls day or night and is listed in the telephone book.
What If I Refuse The Chemical Test At The Police Station?
If you are cited for refusal to submit to a chemical test, you are entitled to a hearing before the Drivers License Appeal Board (DLAD). The hearing is recorded and is limited to the following issues:
1. Whether the officer had reasonable grounds to believe you were operating a vehicle upon a public highway while intoxicated (OWI). This includes Operating Under the Influence of Intoxicating Liquor (OUIL); or a Controlled Substance (OUID); or both; with an Unlawful Body Alcohol Content of .08 percent or more (UBAC); or Operating While Visibly Impaired (OWVI).
2. Whether you were placed under arrest for one or more of the above offenses.
3. Whether you reasonably refused to submit to the chemical test upon the request of the officer.
4. Whether you were advised of your chemical test rights pursuant to Section 625(a) of the Michigan Vehicle Code.
Your license will not be suspended if you are successful at the hearing, and no points will be added to your driving record (unless and until you are convicted of the underlying drinking-related offense). If you are unsuccessful, your license will be suspended for one (1) to two (2) years. If your license is suspended, and you feel the Hearing Officer committed an error of law, you have the right to appeal to Circuit Court.
Since most hearings center on questions of fact, not law, appeals of this nature are very seldom granted. Individuals facing their first implied consent refusal have the right to appeal to the Circuit Court based upon hardship. This will require the establishment of an economic or medical necessity for possessing a drivers license. This Circuit Court petition/appeal is the only way you can obtain restricted driving privileges.
How Do I Request A Hearing Before The DLAD?
A timely appeal or request for hearing must be made within 14 business days. According to DLAD Rule 257.302, the request for hearing must be in writing and include all of the following information: your full name, home and mailing address, telephone number, date of birth, and drivers license number. It must also be filed with the division in Lansing (see address below).
Driver License Appeal Division
Michigan Department of State
P. O. Box 30196
Lansing, MI 48909-7696
The written request may be sent by regular mail, but it is your responsibility to make sure it is properly postmarked. The best practice is to send it by registered mail, with a return receipt requested. The hearing request may also be filed by fax or hand delivered.
Since a hearing before the DLAD or an appeal to the Circuit Court require a thorough knowledge of the applicable law and procedures, an attorney should represent you. You may contact this office for assistance.
What If I Fail The Chemical Test?
You will be held for a minimum of eight (8) hours in jail before you are eligible for bond, or arraignment before the District Judge. At the arraignment, you can plead guilty, not guilty or stand mute. If you elect to stand mute, the Court will enter a plea of not guilty on your behalf. You will be advised that you are being charged with Operating While Intoxicated (OWI) and/or Operating a Motor Vehicle with a Blood Alcohol Content of .08 or more (UBAC), or Operating Under the Influence of a Controlled Substance (OUID). If convicted of any of these offenses, you could receive the following:
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Up to 93 days in jail.
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Fines up to $500, plus court costs.
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360 hours community service.
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Possible immobilization of your vehicle up to 180 days.
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180 days suspension of your license, with a restricted license issued after 30 days.
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Assessment of six (6) points against your driving record.
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A requirement to pay a Drivers Responsibility Fee of $1,000 a year for two (2) years, payable to the Secretary of State.
If a restricted license is approved, the Court may order a Guardian Interlock Device to be installed on your vehicle, at your expense, before your vehicle can be operated. The Guardian Interlock Device requires that you blow into it when you start the car, and every 15 minutes thereafter in order to keep the car running. If the device detects any alcohol on your breath, it will not start. It will also shut the engine down if the car is in motion.
If you exercise your right to a jury trial, you are entitled to an acquittal if the prosecutor does not prove you guilty beyond a reasonable doubt. The jury may also consider the lesser offense of Operating While Visibly Impaired (OWVI). If convicted of OWVI you may receive the following:
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Up to 93 days in jail.
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Fines up to $300, plus court costs.
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360 hours community service. Possible
immobilization of your vehicle up to 180 days. Assessment of four (4) points against your driving record.
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A requirement to pay a Drivers Responsibility
Fee of $500 a year for two (2) years, to the Secretary of State.
Given the serious nature of these charges and the penalties that can be assessed, you should plead not guilty or stand mute, and consult an attorney to see if you have a viable defense. Or, the attorney may be able to negotiate a reduction of the charges. You may contact this office for assistance.
What If I Have Been Arrested For Drunk Driving Before?
If you were convicted for OWI, OUIL, UBAC, OUID, OWVI or Zero Tolerance within the past seven (7) years, you will be charged with a second offense. Penalties for second offense convictions are substantial, and you could receive the following:
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Up to one (1) year in jail.
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Fines up to $1,000, plus court costs.
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90 days community service.
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Immobilization of your vehicle up to 180 days, unless forfeited.
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Confiscation of your license plates.
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Revocation of your license for a minimum of one (1) year, during which you will not be eligible for a restricted license.
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Assessment of six (6) points against your driving record.
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A requirement to pay a Driver's Responsibility Fee of $1,000 a year for two (2) years, to the Secretary of State.
If you were convicted twice for either OWI, OUIL, UBAC, OUID, OWVI or Zero Tolerance within the past ten (10) years, you will be charged with a third offense - a felony. You could receive the following:
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Up to five (5) years in prison.
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Fines up to $5,000, plus court costs.
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180 days community service.
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Revocation of your license for up to five (5) years.
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Immobilization of your vehicle for three (3) years, unless forfeited.
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Confiscation of your license plates.
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A requirement to pay a Drivers Responsibility Fee of $1,000 a year for two (2) years, to the Secretary of State.
What If I Cause A Death Or Seriously Injure Someone While Intoxicated?
If you are convicted of OWI, UBAC, OUID or OWVI, and it is determined that your intoxication affected your driving causing death or serious injury to an innocent person, you could receive:
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Up to 15 years in prison (even if it is your first offense) for causing a death and up to five (5) years in prison for causing a serious injury while legally intoxicated.
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Fines up to $10,000, plus court costs.
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Revocation of your drivers license.
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Immobilization of your vehicle for up to 180 days, unless forfeited.
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Confiscation of your license plates.
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A requirement to pay a Drivers Responsibility Fee of $1,000 a year for two (2) years, to the Secretary of State.
The prison term is increased to 20 years if you cause the death of an emergency responder (i.e., police officer, fireman, ambulance driver, etc.). In addition, subsequent convictions for causing death or serious injury can result in:
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Immobilization of your vehicle for up to three (3) years, unless forfeited.
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Confiscation of your license plates.
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A minimum five (5) year revocation of your driver's license during which time you will not be eligible for a restricted license.
What If I Am Under 21 When I Am Arrested?
If you are under 21, you can be charged with OWI or UBAC if your alcohol content is .08 or above. If your blood alcohol content is .02 or above, but is less than .08, you will be charged with violation of the Zero Tolerance Law. If convicted under the Zero Tolerance Law, you could receive the following:
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Up to 90 days in jail.
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Fines up to $250, plus court costs.
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360 hours community service.
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Restriction of your drivers license for 30 days.
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Assessment of four (4) points against your driving record.
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A requirement to pay a Drivers Responsibility Fee of $500 a year for two (2) years, to the Secretary of State.
A subsequent conviction could result in the following penalties:
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Up to 93 days in jail.
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Fines up to $500, plus court costs.
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60 days community service.
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Suspension of your drivers license for 90 days, and possible revocation of your drivers license for one (1) year depending upon the number of prior convictions during which time you will not be eligible for a restricted license.
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Assessment of four (4) points against your driving record.
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A requirement to pay a Drivers Responsibility Fee of $500 a year for two (2) years, to the Secretary of State.
What If I Am Arrested For Driving With The Presence of Drugs In My System?
The Drunk Driving Statute makes it a misdemeanor to drive with any Schedule 1 controlled substance such as heroin, cocaine, or marijuana in your body. The law does not require that the drugs affect your driving. The mere presence of drugs in your body is grounds for conviction. Upon conviction you could receive the following:
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Up to 93 days in jail.
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Fines up to $500, plus court costs.
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360 hours community service.
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Immobilization of your vehicle up to 180 days, unless forfeited.
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Assessment of six (6) points against your driving record.
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A requirement to pay a Drivers Responsibility Fee of $500 a year for two (2) years, to the Secretary of State.
Subsequent convictions will result in increased jail terms (or even prison), fines and costs and immobilization or forfeiture of your vehicle. Your license will not be suspended or revoked for violation of this law.
What If I Have A Child Under 16 Years Of Age In My Vehicle When I Am Arrested?
If you have a child under age 16 in your vehicle and are arrested for OWI, UBAC, OUID or OWVI, you will be charged with Child Endangerment. If convicted, you could receive the following:
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Up to 90 days in jail.
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Fines up to $1,000, plus court costs.
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Immobilization of your vehicle for up to 180
days.
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Suspension of your drivers license for 180 days with a restricted license issued after 90 days.
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Assessment of six (6) points against your driving record.
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A requirement to pay a Drivers Responsibility Fee of $500 a year for two (2) years, payable to the Secretary of State.
A second conviction within seven (7) years is a felony and may result in the following:
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Up to five (5) years in prison.
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Immobilization of your vehicle for up to 180 days, unless forfeited.
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Revocation of your drivers license.
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A requirement to pay a Drivers Responsibility Fee of $500 a year for two (2) years, payable to the Secretary of State.
How Do I Get My Drivers License Back If It Is Suspended Or Revoked?
The Secretary of State will automatically return your drivers license at the end of the suspension period. However, you must pay a reinstatement fee of $125, and a Drivers Responsibility Fee of $1,000 or $500 per year for two (2) years, depending on the severity of your conviction.
Revocation requires that you petition the DLAD for a restricted license at the end of the revocation. Approval for a license depends upon the proofs you submit regarding your sobriety during the period of revocation. Although you may represent yourself at the hearing, you are advised to retain counsel to represent you. Those who represent themselves are usually denied because they are unprepared for the questions asked by the Hearing Officer. You may contact this office for assistance.
The Secretary of State will not allow you to drive on a restricted license unless your vehicle is equipped with a Guardian Interlock Device for a period of one (1) year. You must also pay the restoration fee, and the Driver's Responsibility Fee.
When Does The Secretary Of State Revoke A Driver's License?
The Secretary of State will revoke a license when a driver has two (2) or more convictions for OWI, UBAC, OUID, OWVI or any combination thereof. The Secretary of State will also revoke for a Zero Tolerance conviction in combination with an OUIL, UBAC, OUID or OWVI. The revocation will last for one (1) year if it is your first revocation and five (5) years if it is your second revocation. Your drivers license will also be revoked for two (2) or more Child Endangerment convictions, or for a felony conviction.
Recommendations
1. If stopped by a police officer, be courteous and cooperative with the officer, even if the officer does not reciprocate. Everything you say and do at the time of arrest will be recorded by the officer and used against you should you go to trial. Arguing with the officer or resisting arrest will only make your situation worse.
2. If interrogated on whether or not you have been drinking, admit that you have been, since the odor of intoxicants can easily be identified on your breath. If you are asked how many drinks youve had, do not say two beers, unless, of course, it is true. You should say, Yes, I have had a few drinks, without being specific.
3. If asked to perform dexterity tests such as walking a straight line, touching your nose with your eyes closed, or reciting the ABCs, politely refuse to do so. If you perform the tasks and fail one or more of them, the officer will use your failure as evidence at trial to substantiate his or her opinion that you were intoxicated at the time of arrest. Given the intimidating circumstances under which the tasks are given, even individuals who have not been drinking often cannot perform the tasks satisfactorily. In addition, there are no objective standards used to qualify your performance, only the officers subjective opinion. Realistically, no arresting officer will jeopardize his or her case by giving the person about to be arrested passing grades on these tasks.
4. If asked to submit to a PBT, you have two (2) choices. If you think you have consumed enough alcohol to put you at or over the legal limit of .08 say NO. Otherwise, you will give the officer additional probable cause for placing you under arrest.
If you think you are not over the legal limit, it would be to your advantage to end the investigation by taking the test. In most cases, the general rule to follow is to REFUSE to take the PBT test.
5. If you are placed under arrest, exercise your right to consult an attorney before doing anything further. This should be done regardless of the time of day or night. It is important to discuss with your attorney whether or not you should take the chemical test requested by the arresting officer. If asked to submit to the Datamaster breath test, take the test only once to comply with the Implied Consent Law. DO NOT AGREE TO TAKE THE TEST A SECOND TIME.
6. If the officer asks you questions from a printed form, either before or after taking the chemical test, do not answer. Simply say, I do not wish to answer any questions. Invoke your right to remain silent.
7. Do not engage in idle conversation with the arresting officer or any of the officers at the police station or county jail, as you may make damaging admissions that could be used against you at trial.
8. Plead not guilty or stand mute at your arraignment. If you have not already done so, contact a lawyer experienced in handling Drunk Driving cases to determine whether or not you have a defensible case.