If the prosecution is able to prove that you were Operating a Motor Vehicle on a Highway Open to the Public, the final element that requires proof beyond a reasonable doubt is whether you breaking the law under three different theories - either "under the influence", operating with a blood alcohol content above 0.08 or a blood alcohol content above 0.17.
The first theory Operating While Intoxicated "under the influence" is defined by the Criminal Jury Instructions as
"Because of drinking alcohol, the defendant's ability to operate a motor vehicle in a normal manner was substantially lessened" -
"To be under the influence a person does not have to be what is called dead drunk, that is falling down or hardly able to stand up. On the other hand, just because a person has drank alcohol or smells of alcohol does not prove, by itself, that the person is under the influence of alcohol. The test is whether, because of drinking alcohol, the defendant's mental or physical condition was significantly affected and the defendant was no longer able to operate a vehicle in a normal manner"
The key to "under the influence" is you must be under the influence while driving your car. If the police make observations, administer field sobriety and chemical tests at a time after you were driving, then this evidence is less relevant the further away you get from driving the car. If there is evidence you were driving at 10 pm, but the police aren't involved until 11:30 then 90 minutes have gone by since the operation, and anything from 11:30 may not be relevant to your condition 90 minutes earlier. The reason this evidence may not be relevant, is because alcohol does not immediately peak after consuming; alcohol can take up to 60-90 minutes to peak in your system.
If you consume a large quantity of alcohol then immediately jump into a car, your blood alcohol level is going to be a lot lower than it would be 60-90 minutes later. There is also the possibility that the driver drove then consumed the alcohol after driving; any observations or test results would then not be relevant to the condition, which the defendant drove the car, because the drinking occurred after the driving.
If observations and tests are performed immediately after operation then there are still various ways to challenge "under the influence". Each Michigan drunk driving case is fact specific with strengths and weaknesses; your attorney will highlight factors that tend to show that you were not under the influence while driving, and your mental or physical condition was not significantly affected in operating a vehicle in a normal manner. Some factors may include the lack of bad driving, cooperation with the police, performing well on field sobriety tests. Remember, it is always the prosecutions burden to prove this element, but they will only highlight the negative factors to gain a conviction; your attorney must even out the playing field and tell the complete story.
The second theory Operating While Intoxicated - Unlawful Bodily Alcohol Level - .08 at the time of operation
This theory is based entirely on the chemical test results, which can be breath test, blood or urine sample, and is independent of the first theory of "under the influence". The prosecution will seek to admit the chemical test results to prove this element; it may be possible to challenge their admissibility and their accuracy if and when they are admitted.
There are two ways to defeat the "per se" charge:
The first way is to not challenge the actual test result, but challenge it's relevance to when the defendant was actually driving. If the defendant is driving at 10 pm, but the test is administered at 11 pm, then the result isn't actually what the driver would have registered at 10 pm. The test cannot prove what the defendant's blood alcohol was at 10 pm, but only at 11 pm. This could be very helpful if the blood result is in the 0.09 -0.11 range an hour later, because the blood alcohol could be rising, and was below 0.08 an hour earlier.
The second way is to challenge the accuracy of the breath, urine or blood test. This tests can be challenged on the basis that procedures, safeguards, chain of custody and may other factors were not followed, and results are not accurate. An expert could testify, and re-create the defendant's consumption, and based upon all factors including the amount of alcohol, weight of the defendant and time considerations, what the defendant's blood alcohol was at the time of operation. If this result is different than the state's evidence, it might create reasonable doubt for an acquittal.
Although both theories can be challenged, the jury only needs to find that either you were "under the influence" or had a blood alcohol level above .08.
Here are the possible Michigan OWI Penalties for a first offender:
- a $100 to $500 fine and one or more of the following:
- Up to 93 days in jail.
- Up to 360 hours of community service.
- Driver's license suspension for 30 days, followed by license restrictions for 150 days.
- Possible vehicle immobilization
- Possible ignition interlock
- Six points added to driving record
- Driver Responsibility Fee ($1,000 for 2 consecutive years)
Here are the possible Michigan OWI 2nd Offense Penalties
- $200 to $1000 fine, and one or more of the following:
- 5 days to 1 year in jail.
- 30 to 90 days of community service
- Driver's license revocation and denial for a minimum of 1 year (minimum of 5 years if there was a prior revocation within 7 years).
- License plate confiscation.
- Vehicle immobilization for 90 to 180 days, unless the vehicle is forfeited.
- Possible vehicle forfeiture.
- 6 points added to the offender's driving record.
- Driver Responsibility Fee of $1,000 for 2 consecutive years.
DUI Attorney & Former Prosecutor Jonathan Paul