Michigan DUI Arrest Warrant - Turning yourself in to the court or waiving the arraignment with an attorney
When arrested for a drunk driving case, it's not uncommon to be released without actually being charged with a crime. The police must have the prosecutor review the case prior to charges being issued, and the officer must swear to an arrest warrant with the judge.
If your case involves a blood draw, that sample may take weeks or months to best tested by the MSP lab, which will delay charges.
This means that you're released and told the court will contact you when you're charged. I would strongly advise any potential client to NOT follow that course of action, because the court is not going to be on top of it, and it's likely that an arrest warrant is put into place without your knowledge. You are then subject to arrest while driving, at home or at work.
You will also give the false impression to the prosecutor and judge that you're on the loose and avoiding court when the truth is that you're not even aware about the charges. Your chances of having a favorable bond go down if you're no where to be found and have to be brought in with handcuffs on. I've seen this too many times to be comfortable relying on the court.
I would advise any client who has been arrested for a DUI and a released to contact an attorney about the case. That attorney can file their appearance with the court, prosecutor and police and request to waive any warrants and most arraignment dates. You are no longer relying on the clerks at the court tell you about your charges. Your attorney can handle that and simply arrange a court date.
The other major benefit of working with an attorney on day one is the ability to impact your case in a proactive manner. Other attorneys do not practice this method, but it's my opinion that it's the best way to approach a serious situation.
When charged with drunk driving in Michigan, you're going to feel like the world is against you, and you're being judged by everyone. You're not wrong. A DUI arrest carries a very negative first impression with the judge, prosecutor, police, probation and the community.
When your case starts, the only thing these key players know about you are the facts of your case; if an accident is involved or a BAC close to or more than double the legal limit, the impression is even worse. For 99 percent of cases in Michigan, this is a lasting impression that most defendants never escape. My clients are different.
On day one, my clients are proactive, and put a number of key steps into place at the very beginning of the case. Yes, the same first impressions form with my clients, but that first impression is soon changed into a "true impression" when I get the prosecutor and judge to not only see what's in front of them from this case, but who my client has been in the past, and what they are going in the present to show growth, and turn the case into a learning experience.
Most people view the prosecutor, and sometimes the judge as the enemy or at the very least "the other side" - this is the WRONG approach. As a former prosecutor both in New York City and here in Michigan, I view the prosecutor as a major asset in my client's case. Win over the prosecutor, and new doors open for a positive outcome for your case. The prosecutor is the one who controls what you're charged with, and controls what can be offered in terms of dismissals and reductions.
Most defense attorneys take a weapons up approach with the prosecutor, which both annoys and frustrates the prosecutor. There's a list of defense lawyers that prosecutors dislike for being overly aggressive no matter the situation. I've had prosecutors tell me various times, "that guy" or "that woman" referring to another defense attorney; the prosecutor is NOT going to go the extra mile for them and their client.
There is a time to be aggressive, but it's not day one. Even when contesting the charges, things should NEVER get personal between defense lawyer and prosecutor, but many defense lawyers do this, and it's stupid. They are not helping their client by "going to war" with the prosecution.
I've worked out 1000's of great deals with prosecutors because I started the conversation about their kids, their vacations, their interests in life, rather than punching them in the nose on day one. If you want a lawyer to burn the courtroom down, that's not me.
If you're arrested for a DUI in Michigan, it's likely there's some blame to go around or you would not have been arrested - yes we might get your case dismissed, win at trial or another great outcome, but there's always something to learn from this situation. We need to come into court humble and open to this being a learning experience. My clients change the perception of their case on day one, and at the end of the case, no matter the outcome, they are a better human being for having gone through the case.
I'd rather get a great result for my client, and have the judge and prosecutor praise my client's efforts than dirty looks to be thrown around, and everyone to be on edge about the case. The best results come when both sides work together. I make my clients exceptional, and they earn the same exceptional results.
BAC levels close to the legal limit in Michigan DUI Cases - What can be done to beat a drunk driving case
When a client contacts me with a drunk driving case, it's important to discuss any chemical tests. The two most common are the Datamaster or a blood draw; once we know the number, we put together a timetable of alcohol consumption to see if the BAC level at the time of the exam could be accurate, or if there is a major issue with it.
If the numbers make sense, we're still going to question the result, and make the prosecutor provide evidence beyond a reasonable doubt to its accuracy, but it may not be our #1 focus, we can make other parts of the case our true leverage point.
If my client says they drank 8 beers in 3 hours, and the BAC level is 0.12 or so, that makes sense. Each beer is about 0.02, which would be roughly 0.16 of alcohol, but we have a few hours of consumption to burn some of the alcohol off, and lower the number. If the same client says they had 2 beers, and we have a BAC level of 0.20, either the client is not telling me the truth, or there is a major flaw in the test result.
If a client has a BAC number close to the legal limit, which I consider 0.08 to 0.12, the timing of consumption is very important. If a client has 4 beers in 2 hours, but 2 of those beers were consumed right before leaving the bar, and the client is pulled over soon after, those beers are unlikely to have "registered" in my client's body. Yes, those beers show up an hour later during a Datamaster or blood draw, but the legal standard is the BAC level while driving the car.
The Michigan jury instructions will instruct a judge or jury that they may consider the chemical test result to be the same as when the person was driving, but applying common sense, that is simply a lazy jury instruction put in place to make the jury's job easier to convict. Imagine if the prosecutor had to show the BAC number when actually driving?
You'd need to have 1000's of Datamaster machines in the back of vehicles and hustle the driver into taking a test, skipping key procedures like the 15 minute rule etc.
There's many other factors that go into the accuracy of the BAC reading, but I find the timing and amount of consumption to be the easiest for a jury or judge to understand at trial. Attacking the blood draw or testing or the Datamaster machine is certainly viable, but it's more difficult to get a jury to understand how a machine did not work vs simply applying common sense.
If you or someone you care about has a DUI case in Michigan with a BAC number near the legal limit, they have a viable built in defense, which can be a winner at trial if presented in the right way.
Michigan Datamaster Testing 101 - Blackman Township DUI
Recently, the DataMaster DMT was introduced for chemical breath tests in Michigan. The machine relies upon infrared spectroscopy and secret algorithms that the manufacturer closely guards. This new machine was put in place by the police and prosecutor to streamline many of the pitfalls of the old machine, which were frequently challenged.
Here's how the machine works, and how it can be defeated if approached the right way by an attorney.
The Datamaster operation requires that the testing officer observe the subject for a minimum of 15 minutes before administering the evidential breath test to ensure that the subject has not smoked, regurgitated, or placed anything in his or her mouth.
The DMT machine requires the officer to manually enter the observation time; if it's less than 15 minutes, it's certainly an avenue to attack, and it's also important to bring up that the DMT comes with the option of a button which would start the 15-minutes then lock out the machine for those 15-minutes so the time-frame MUST be adhered to, but the State of Michigan chose not to purchase this safeguard.
After entering the start observation time and the subject’s information, the officer enters his or her identifying information. It's important to FOIA the officer's training history from the Michigan Commission on Law Enforcement Standards (MCOLES) to ensure the officer is qualified to administer the DMT. The officer training is also ripe for cross-examination, especially for a jury who would be shocked to hear how little training, and how low the standards are to operate this machine.
Once the information is entered, the officer presses “OK” and the DMT takes over from there. The first thing the DMT does is zero itself by sucking in ambient air from the room, which theoretically purges the machine with clean room air. It then runs a blank test to ensure that the DMT deems the ambient air clean of ethyl alcohol, and then it runs an internal standard check by inserting a quartz plate with a known infrared absorption value. According to the DMT instruction manual,
Each DATAMASTER DMT is programmed to retain in memory the exact infrared absorption value of this quartz standard. The instrument measures the absorption of the quartz plate and compares this measured value with the value obtained at calibration. The two values must agree within prescribed limits or the operation will be aborted due to calibration error.
Unfortunately, Michigan’s DMTs do not reveal what these values are as the MSP has chosen to turn off the feature that would provide a numerical readout of the internal standard and of how much the machine varied from that standard. Michigan’s DMTs will simply state that the standard was “verified.” Also this is not required by the law, a jury would certainly find it odd, that the State of Michigan again had an opportunity to put a safeguard into place, but chose not to do so.
After the pretest checks, the DMT will then display “Please Blow.” The officer must place a new, previously unwrapped mouth piece into the heated breath tube and tell the subject, “‘Place your mouth on the mouthpiece and blow long and steady into the tube until I tell you to stop.’” If the officer does not use a new, unwrapped mouth piece, that's a viable path to attack the test; if two tests are given, the officer MUST replace the first tube with a second one, but they usually do not do so.
After the below, there is an audible beep, and the officer can watch the progress of the test on the “breath volume bar.” A subject is supposed to continue blowing until he or she is out of air, although the DMT should register a result after six continuous seconds of blowing. One hundred twenty seconds after the first test sequence is completed, the DMT will go through the purging–blank test–internal standard verification sequence and then a second sample will be requested in the same manner as the first test sequence.
The Administrative Code Rules require the officer to offer a second DMT test to verify the results of the first test sequence. However, after an individual submits to the first test sequence, it is not considered an implied consent act violation to refuse the second test sequence. If I had a chance to sit on my client's shoulder at this point, I would tell them to refuse the second test, but I've never had a client know to do this, because they don't need to know this option by law.
However, if the first two test results are not within the preset tolerances of each other, the DMT will automatically request a third sample, and the sequence will be the same as the first two sequences, including the provision of a new mouthpiece. The DMT has a built in variance, which is fruitful at trial, and could make the difference on a close call on the 0.08 or 0.17 thresholds.
The variance can range from 0.01 higher or lower on a BAC up to 0.14, and potentially up to 0.04 on a number of 0.35, which at that point, a variation may not matter, but it is an acknowledgement that the machine is not perfect, and it has a margin of error, up to 26.67 percent, which is kind of shocking.
It's important to request all testing material on the DMT machine as the machine is tested on a regular basis, and those logs are made available in cases; a machine is deemed acceptable as long as it falls between .076–.084 percent, a range of +/− 5 percent. A fruitful area of questioning is when you have a BAC result at a different level; essentially, was the machine tested to accurately test a sample of 0.17? Well no would be the answer, and that makes a difference in the eyes of a jury member.
If a Datamaster was used in your case, the police and prosecutor are no doubt convinced that it’s 100 percent accurate. After all, their machine told them so, and machines never make errors.
This machine not only NEVER makes errors in their mind, it also is completely reliable no matter who the test subject is; this stance is wrong and should be challenged. If the results are successfully challenged, a prosecutor is likely to dismiss their case, and you walk.
Each person who puts their mouth on the breath sample tube comes to it with different circumstances; a major one is pre existing medical conditions. There’s a number of these medical conditions, which can make the test result completely unreliable.
If my client suffers from diabetes, and they are in a state of ketoacidosis, the elevated levels acetone in their blood could be wrongly identified as ethanol; the Datamaster machine does not know the difference. The same can be said for someone suffering from hypoglycemia.
If my client suffered a mouth or head injury as part of the case (car accident of some sort), it’s very possible that they have blood in their mouth; even a small, which would not be detected by the police, could produce a “mouth alcohol” result, which is a higher concentration level, and the machine would be fooled into thinking a 0.02 is actually a 0.20.
The same can be said about recent or persistent regurgitation (throwing up/spitting up etc). This occurrence would cause alcohol from the stomach to be in your mouth, which if blown into the Datamaster would provide a much higher reading. It’s a falsity to believe that the 15 minute observation rule or the machine itself would be able to make this distinction.
Another common issue that could impact the reliability of the results is Gastro Esophageal Reflux Disorder (GERD), which is a condition where alcohol is expelled from the stomach and enters the mouth, which would cause a false result.
Finally, if a client has dentures or any other dental issue, alcohol can get trapped in the mouth, which would create a higher concentration due to mouth alcohol.
Recently worked with a young man who was on the wrong path in life. He had a great education, and had a good job, but he had a number of vices in his life that were holding back his potential.
He had never been in trouble with the law due to some of these poor choices, but he was on the path to losing it all because he wasn't properly focused on his future.
His pattern of behavior eventually lead to a drunk driving offense, which could have cost him his life or the life of someone else on the road.
The client contacted me for help; at first he was angry at the consequences and the burden that these charges could put on his future. Over time, we reshaped that thought process and together, we agreed that this case was actually an opportunity for change. Without this case happening, he was likely to end up in a much worse situation, either dead or in prison for killing someone with his vehicle.
Over the course of the case, the client made tremendous strides in his life, and he is a new person today. He is grateful for this intervention in his life, even if it meant going to court, being charged with a crime, and the financial cost involved. You can always earn more money, but you can't change serious injury, death or permanent damage to a reputation.
My client is in a great place now after working together, and I am extremely proud of him. Even the judge and probation officer told him the same; the client pretty much received a standing ovation from the judge, because of all the hard work he put in; I just felt bad for the next case after mine, because nobody can compare themselves to the success story of my client; he kicked ass, and he has a bright future ahead of him.
Good and bad things happen for a reason, and sometimes that means getting arrested for drunk driving. The majority of my clients have never been in trouble before, and will likely never get in trouble again, but something lead to this happening, and if not this event, something else would have happened, and potentially the client would not have been as lucky the next time around. Life will throw you curve balls, and you will swing and miss, and likely end up on your ass, but it's what happens next that matters. Dust yourself off, regroup and have a plan.
In Michigan, most people are very familiar with drunk driving with a car, but during the summer time, many people are arrested while operating a boat under the influence. Some of the penalties and consequences are similar, but many are unique to the charge.
The prosecutor must show operation of the boat and one of the following three elements:
- Operating a motorboat while a person’s ability to safely do so is visibly impaired due to alcohol or controlled substance consumption
- Operating a motorboat while having a blood alcohol content (BAC) of .08 or more
- Operating a motorboat while having any amount of a Schedule 1 controlled substance in their system
If convicted, you can face up to 93 days in jail, a fine, probation, community service and counseling or therapy. The unique aspect of boating vs operating a car is the boating offense does not impact your driver's license, but it could impact your ability to operate a boat in the future.
Yes, if charged with drunk driving at the 16th District Court in Michigan, one of the two judges will likely make drug testing part of your pretrial bond. If you've used drugs in the recent past, it is important to discuss those consequences with your attorney to figure out how to best address it with the court - honesty is usually the best policy in these situations. Here are some potential methods to test you.
The Michigan Motor Vehicle Code, MCL 257.35a, provides the following: “‘Operate’ or ‘operating’ means being in actual physical control of a vehicle regardless of whether or not the person is licensed under this act as an operator or chauffeur.” The issue of operating usually comes up when a person is found asleep behind the wheel of a parked or otherwise nonmoving vehicle. The sleeping driver is one of the most contentious remaining legal issues in drunk driving prosecutions. It is often argued that the essential element of operating is missing when a defendant is arrested after being found asleep.
In People v Pomeroy (On Reh’g), 419 Mich 441, 355 NW2d 98 (1984), the Michigan Supreme Court held that a person sleeping in a motionless motor vehicle was not “operating” that vehicle within the meaning of Michigan’s drunk driving laws. Based on Pomeroy, the Michigan Court of Appeals ruled that the drunk driving arrest of intoxicated sleeping persons in motionless motor vehicles was illegal because the offense was not committed in the officer’s presence. Thus, all evidence obtained from that illegal arrest was tainted and subject to suppression. See People v Spencley, 197 Mich App 505, 495 NW2d 824 (1992) (results of breath test were suppressed because warrantless stop and arrest was illegal).
However, in People v Wood, 450 Mich 399, 538 NW2d 351 (1995), the Michigan Supreme Court revisited this area and overruled Pomeroy to the extent that it held that a person sleeping in a motionless motor vehicle could not be held to be currently operating a motor vehicle. Instead, the Wood court reasoned that once a person put a motor vehicle “in motion, or in a position posing a significant risk of causing a collision,” he or she “continues to operate it [even if asleep] until the vehicle is returned to a position posing no such risk.” Id. at 405. Note that in Wood, defendant was discovered passed out, slumped over the steering wheel, with his foot on the brake and an open bottle of beer between his legs. Obviously, defendant had not returned the vehicle to a position that posed no risk of injury or damage to other persons or property.
In People v Longeway, 296 Mich App 1, 818 NW2d 419 (2012), defendant was arrested for OWI on a tip from a martini bar doorman who told the police that a vehicle had struck a concrete barrier earlier in the evening and that the occupants left the bar later and appeared to be drunk. The officer observed the car in the parking lot with the backup lights on while waiting for another car to leave and then saw those lights go off and the car settled as if the transmission had shifted to park. The court held that defendant had operated a motor vehicle within the meaning of MCL 257.625(1) because she had “actual physical control” of the vehicle as set forth in MCL 257.35a. A person clearly has actual physical control of a vehicle when starting the engine, applying the brakes, shifting the vehicle from park to reverse, and then shifting back to park.
In People v Lechleitner, 291 Mich App 56, 61, 804 NW2d 345 (2010), the court rejected defendant’s contention that the decision in Wood was outmoded and that the definition of operating should be “to cause to function.” Instead, the court of appeals followed Wood with its focus on the danger of a collision with a vehicle operated by a person under the influence of intoxicating liquor. In Lechleitner, defendant drove on a slippery freeway while his BAC was above the statutory limit and lost control, striking the right and left guardrails and coming to a stop in the middle of the freeway, blocking both lanes. While defendant turned on his hazard lights and attempted to push his truck with his leg, another driver swerved and then stopped on the shoulder. A third car swerved to miss defendant’s vehicle and struck the car on the shoulder, killing that motorist. MCL 257.625(4) provides that a defendant may be convicted where he “operates a motor vehicle” while intoxicated and “by the operation of that motor vehicle causes the death of another person.” This provision does not require that the defendant’s vehicle be in motion at the time of the accident but rather that the victim’s death be caused by the defendant’s operation of the vehicle while intoxicated. In this case, defendant was intoxicated, operated his vehicle, and crashed it, with the result that it sat in the middle of the freeway at night creating a risk of injury or death to others.
Following the Wood decision, and to remedy the perceived drunk driving loophole created by Spencley, the Michigan legislature amended the drunk driving arrest statute to authorize a warrantless arrest for offenses not committed in the officer’s presence of persons “found in the driver’s seat of a vehicle parked or stopped on a highway or street … if any part of the vehicle intrudes into the roadway” if reasonable cause exists to believe that the person had been operating the vehicle in violation of the drunk driving laws. MCL 257.625a(1)(b).
Circumstantial evidence can permit an inference that a defendant was previously operating a vehicle with bodily alcohol content. People v Solmonson, 261 Mich App 657, 638 NW2d 761 (2004). Solmonson was found unconscious in the driver’s seat of a vehicle that was parked on the edge of a roadway. The vehicle was not running, but the engine was warm and the keys were in the ignition. There was an open can of beer between Solmonson’s legs, five more cans of beer in the passenger seat, and another empty can in the back. The court of appeals ruled that while defendant was not “operating” the parked vehicle at the time he was discovered by the police, there was sufficient evidence allowing the inference that the defendant drove the vehicle to the location where he parked and that he was intoxicated at that time.
A police officer had reasonable cause to arrest defendant for drunk driving after finding defendant asleep in the front seat of his parked vehicle, which was lodged atop a parking log. People v Stephen, 262 Mich App 213, 685 NW2d 309 (2004). While the officer did not see Stephen operating the truck, Stephen admitted that he had driven to the parking lot to sleep off the effects of having had too much to drink. Stephen also admitted that he subsequently got the truck stuck on the log, at which point he turned off the engine and went to sleep. MCL 764.15(1)(d) permitted the valid arrest because the officer had reasonable cause to believe defendant had committed a 93-day misdemeanor. An officer does not have to observe a defendant operating a vehicle to make a drunk driving arrest under MCL 764.15(1)(d).
The places where operating must occur to constitute a violation include not only highways and places open to the general public but also those areas generally accessible to motor vehicles, including an area designated for vehicle parking. MCL 257.625(1). Drunk driving prohibitions apply to the operation of a vehicle on private as well as public property when an accident causes the death or serious impairment of a body function of another person. MCL 257.625(4), (5).
The charge of operating while intoxicated causing death (MCL 257.625(4)) does not require a showing that the defendant was operating in an intoxicated manner, only that he or she was operating while intoxicated. People v Schaefer, 473 Mich 418, 703 NW2d 774 (2005), overruling in part People v Lardie, 452 Mich 231, 551 NW2d 656 (1996). According to the Schaefer court, the statute plainly requires that the victim’s death be caused by the defendant’s operation of the vehicle, not the defendant’s intoxicated operation. The Lardie court had erred by placing an extra burden on prosecutors to show that the defendant’s intoxicated driving was a substantial cause of the victim’s death.
A person sitting in the passenger seat who grabs the steering wheel takes “actual physical control of a vehicle” under the statutory definition of operate in MCL 257.35a. People v Yamat, 475 Mich 49, 714 NW2d 335 (2006) (ruling that prosecutor established sufficient probable cause that defendant violated felonious driving -statute).
Traffic stop for drunk driving in Michigan - Probable Cause is necessary or a stop is illegal and evidence should be suppressed for a DUI
MCL 257.742(1) authorizes a police officer to stop a vehicle, detain the driver, and issue a citation for any witnessed violation of the Michigan Vehicle Code or civil infraction. The Michigan Supreme Court has stated that “[t]he constitution requires an ‘individualized, articulable suspicion’ for a stop in the absence of traffic or equipment violations.” People v Burrell, 417 Mich 439, 450, 339 NW2d 403 (1983).
“In order to effectuate a valid traffic stop, a police officer must have an articulable and reasonable suspicion that a vehicle or one of its occupants is subject to seizure for a violation of law.” People v Williams, 236 Mich App 610, 612, 601 NW2d 138 (1999).
Often the officer will not ticket the individual for the offense for which he or she was stopped. This does not invalidate the arrest as long as the officer had a valid reason for the initial stop.
DUI Attorney & Former Prosecutor Jonathan Paul