A recent 2016 Michigan Court of Appeals case ruled that a driver could not be prosecuted for drunk driving in Michigan for moving their own car from one part of the driveway to another part of the driveway. The case does mention that this driver moved the car "closer to the garage"
To be clear, the "second" - refusing the the test altogether would subject you to the Implied Consent law in Michigan.
If you decide to take the Datamaster and avoid the Implied consent issue kicking in, there is nothing in the law that says you need to blow a second time as a confirming sample. A second test only confirms the accuracy of the first test, and it could be easier to challenge the Datamaster accuracy with only one result vs two results.
When I review a police report of a client's DUI arrest, I look to see the stated reason for pulling my client over. While there are usually multiple cited reasons, a reason of weaving within the lane is NOT a legal reason to pull a client over. Second, the officer might list weaving or weaving outside of the lane in the report, but a review of the video shows just wearing within the lane
If all we have is weaving within the lane then this stop should be challenged. Under Michigan law, specifically MCLA 257-642 requires that "a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascerttained that the movement can be made with safety"
Further there has been cases where a court has struck down a traffic stop where the driver briefly left the lane, specifically "observation of the motor home briefly entering the emergency lane is insufficient to ive rise to probable cause of the traffic violation"
Genesee County - Charged with OWI in Grand Blanc - Car Accident - Can the Prosecutor Proof his Case?
Recent Michigan court decisions have impacted how chemical test results are handled in terms of admissibility, but the Wager and Campbell decisions have not really impacted the is single-car accidents. It would appear that the prosecution will have to establish a time of the operation of the motor vehicle to make any test relevant. These types of cases are potentially ripe for suppression of test results if the prosecutor can't show when the accident occurred/driving took place. Despite this common sense, courts in Michigan are still hesitant to jump on this bandwagon.
MCL 257.625a(6)(a) provides that the amount of alcohol or the presence of a controlled substance as shown by chemical analysis is “presumed to be the same as at the time the person operated the vehicle.” If the prosecutor can't show when you drove the car, it will be difficult to show the relevancy of test results.
The presumption as to the “relation back” of test results to the time of operation is also present in the Michigan jury instructions. The statutory presumption and accompanying jury instruction provide one of the most problematic aspects of the trial of a drunk driving case. The statute and the jury instructions pit the prosecutor’s burden of proof of beyond a reasonable doubt against a presumption that seems to improperly shift that burden.
If you have a single-car accident case where the time of operation is unclear or frankly unknown, you could potentially have your chemical test suppressed if handled in the proper fashion.
When charged with drunk driving in Michigan, the judge will set certain bond conditions, which will most likely involve alcohol and drug testing. Although innocent until proven guilty, there was probable cause to believe you were indeed drunk driving, and the judge will set testing to make sure you're not drinking or using drugs during your case. As a proactive DUI attorney, my clients are typically already doing this (in the most convenient manner) before we arrive in court, and we impress the judge will how seriously we're taking the charges. In my experience, my clients have typically received less testing than the average client in a similar position and court, which has saved my client both time and money.
For example, if I'm working with one of my many doctors or a traveling businessman, I'll get them started on a portable unit, which will allows some flexibility in testing, including leave the state or country, which is not an option if the client is required to set their alarm clock and run to the testing facility. I work with busy and successful clients who simply don't have the time to hangout in testing facilities with two-hour waits. My strategy allows my clients to have independence in their testing, and to successfully comply with the court's order. Testing requirements are always subject to change based upon how the client is doing, and if any tests are missed or positive results.
When charged with drunk driving in Michigan, you will eventually go before a judge who needs to determine your bond conditions. The judge could have you post money to make sure you return to court, can limit your ability to travel, and may test for drugs and alcohol during the case.
The judge will usually set random testing with no prior offenses, but may set more frequent testing with prior offenses, or certain facts like a high alcohol level result. The random testing would normally take place at a 3rd party testing facility where the person charged would pay for their testing, but some courts require/allow testing with a police department that could be cheaper or even free.
Many of my clients travel or may be from a different area in Michigan or even out of state, these clients can't test where most people test, and we need to make other arrangements. These arrangements might include a different testing facility more local to my client, or we may use a portable testing device where the results are transmitted to a testing company or downloaded every few weeks.
The cheapest option is using with a PBT (preliminary breath test) at a testing facility or a police station. It might be random or daily or twice daily. These tests are usually in the morning to try to catch alcohol from the night before. If the client has prior alcohol offenses, a judge might order an alcohol tether that has the ability to detect the use of alcohol around the clock. The units contain sensors that test the concentration of alcohol present in the insensible (evaporates before it is perceived) perspiration that is constantly given off by the skin and tests and stores data obtained every 30 minutes, 24 hours per day. This is the most expenses and most taxing on your daily life.
The portable breath test, sometimes called the in-home unit is the best of both worlds. It allows testing as much as ordered by the judge, avoids going to a facility when you're needed to test, is easy to blow into as it is always with you, and you're able to travel with it, because it comes with you. I usually recommended this option for many of my professional clients such as a doctor, lawyer, c-level executives or anyone who works early, and doesn't stop working until most people are already at home from their day.
Although being charged with a drunk driving offense should create changes and push people into prioritizing the case, it shouldn't cost you the ability to do your job, earn money for your family, and physically be present for the important matters in your own life. You're not going to learn from the case or improve yourself if you lose your job or can't take care of your kids because you're testing so much that it consumes your life. A court should always be flexible as long as the ultimate goal is achieved, which is sobriety and being able to prove this to the court.
Other testing options are an ignition interlock device, which is installed in a vehicle, these devices require the driver to perform a breath test before the vehicle can be started. Interlock devices now come equipped with a camera to identify the person performing the test. This device has to be on any vehicle you drive, and if you're not with your vehicle then you have no way of testing. I only recommend this as a testing option for my client if it has been ordered for other reasons by the Secretary of State, and you want to avoid paying for two devices.
The final common option is the Ethyl Glucuronide test or ETG alcohol test. These tests measure the amount of EtG of alcohol in urine. Depending on the amount of alcohol consumed, the test may be able to detect the presence of alcohol consumed for up to 72 hours before the test is performed. This test is more expensive than the PBT, but it covers more time, which means a judge can order less tests. This is a common method to test if someone travels and returns - the judge can attempt to cover the period of time when the client traveled - if anything it scares the people into not drinking, because they know a number of days can be covered by the test unlike the PBT, which will read zero a few hours after drinking.
Arrested for a DUI, but not court date or charges yet? What happens next for me? Here's what happens from the view of a former Michigan prosecutor
I have a lot of potential clients that call me or email me and tell me about a recent arrest, but there have not been issued a court date, and maybe not even charged yet. Some are hopeful that this means that the police are not pursuing charges, and maybe the case is over?
That is unfortunately wishful thinking. As a former prosecutor, here is how it works.
- The officer comes in contact with you, might run some field sobriety tests, a preliminary breath test, and asks you a number of questions.
- If you blow over the limit on the PBT, or don't blow, but show other signs of intoxication, the officer will likely arrest you.
- From there, either a Datamaster test or a blood test will happen.
If it's a Datamaster result, and that result is over the legal limit, you're likely to be further processed and you might receive a ticket or paperwork with charges. You may even need to post money to be released. If you blow under the legal limit, you might be released or could still be charged based on impairment (click to read more)
If it's a blood draw, the result will not be known on the spot, and may take weeks or months for a result, and you will be released pending the result. Sometimes you're charged even without the test result, because there is enough "other" evidence to substantiate a charge against you. In a situation like this, I would push for a dismissal based on lack of a BAC - push the prosecutor to go to trial without these results. Most times, the prosecutor will have to dismiss the case at this point.
So if it's a blood draw, you're unlikely to be charged right away, but you need to be productive during this downtime, and show that you're already making key changes in your life, and you're on the right path. Once charged, you will be ahead of the game to receive an outstanding result, and work toward avoiding jail, loss of license, and work toward a reduction and or dismissal of charges.
If you have a ticket with a charge on it, but don't know the court date, the court has not received the charge yet, and has not set a date. To avoid a warrant, you should call an attorney to track your case, file and stop any warrant for your arrest from being issued.
All these cases have to be reviewed by a prosecutor who can keep the same charge the officer arrested you for, or up the charge to something else. An example of this would be if you have a prior conviction, but the police officer just arrested you for a first offense. The prosecutor will formally charge you with a 2nd or 3rd (felony) if they are able to do so.
So don't sit back on your heels if you're arrested, but don't think you're charged or have a court date yet - this is lazy and will put you on the wrong path for your case. You have once chance to handle this case, and make a true impression on the court, prosecutor and police.
If you're arrested for drunk driving in Michigan, and you blow over the legal limit of 0.08, the police will take away your physical license. You will be issued a temporary paper license, but that license is a full license without restrictions. Your ability to drive is not impacted at this point.
Your license will only be impacted if your case is resolved where you plead guilty or no contest to a drunk driving charge or something like reckless driving. Even with this plea, nothing happens to your license when you leave the courthouse; the license action is only put in place once the Michigan Secretary of State receives notice of your case outcome, and takes action. You will be sent a letter from the SOS, which informs you of any suspension or restrictions. There is usually a grace period as well to make sure the letter is received and you're on notice of the action.
Many clients ask me about getting drunk driving charges reduced down to a non-drunk driving offense. I tell all of my clients that this is a rare outcome; I've been able to achieve this goal for many clients, but the facts, the prosecutor and the circumstances all might align in an almost perfect manner.
A prosecutor controls the charge, and will only make a reduction down to one of these charges if there is an issue with their case. This may mean an issue with a witness, or a grey area element such as a low BAC or an issue proofing operation. Prosecutor's don't like to dismiss DUI charges, because that's a "big story" if became public, and they don't want to create a slippery slope for other defense attorneys to seek that outcome in future cases.
While a prosecutor will usually not reduce an offense below OWVI, a reduced offense plea to reckless or careless driving may be possible where a case is extremely weak.
A reckless driving conviction under MCL 257.626 will cause the Secretary of State to issue a 90-day suspension once an abstract of conviction from the district court has been received. MCL 257.319(3)(b). This is considered a hard suspension, and circuit courts have no jurisdiction to grant a restricted license during the 90-day suspension. MCL 257.323(3). Nevertheless, a reckless driving conviction with an unappealable 90-day suspension would still seem preferable to having a drinking offense on one’s record.
Careless driving is a three-point civil infraction with no license suspension. See People v Greenlee, 133 Mich App 734, 350 NW2d 313 (1984).
A reduced plea to an attempted offense of whatever kind no longer has any benefit. The Secretary of State is required to treat the attempted conviction as if it were a conviction for the completed offense. MCL 257.204b