If charged with a DUI in Michigan, how can we apply the New Rules of Criminal Defense? 

Every drunk driving case in Michigan is different, and we need to consider the unique court, judge, the facts of the case and the charges.  There are many variables that go into the right approach, but it all starts with a core strategy; it means deliberately choosing a different set of activities to deliver a unique mix of value.  My clients adopt a logical and consistent set of choices that generate and sustain long term competitive advantage in a Michigan DUI case. My clients are competing for the limited attention span of a judge, prosecutor, and probation department; to be more than just a name and a charge.  

We must take a growth mindset for a DUI case; to take a fixed mindset would mean to focus only on what has already happened, which we cannot change.  This doesn't mean what happened is true or cannot be contested, but when a case happens, there is no venue to simply tell a prosecutor or judge, X, Y and Z didn't happen; that requires litigation such as filing a motion or a setting a case for a trial; those are options down the road, but to begin a case, those are the facts we have, so we ignore them.

We focus on what we can control and that is to get out of the box.  This means to view the situation from outside your own point of view, to value what drunk driving means in Michigan; the public perception and the laws in place.  To get out of the box is to put yourself in the shoes of the audience looking down at your case and to see if from their eyes.  Sure it really sucks to get a drunk driving in Michigan; you worry a lot of bad things are going to happen to you, but this case isn't about you, it's about your action and impact to the community; it's about how you would view a drunk driver if it happened to someone you didn't know or care about in the world.  Outside of your shareholder list, nobody is supporting you or rooting for a good outcome.

The stakeholders will not give you the benefit of the doubt, and the culture stinks in your case.  We need to change that culture and that begins with putting what happened behind us and creating core values for complex change.  We need a case for change, a vision, the skills, the right incentives, the resources and the action plan.  

To get ourselves organized and to focus on both the past, present and future, we create a DUI client balance sheet, which adopts the time value of money and the client value chain.  Doing things in the present for a drunk driving case have more value than doing things in the future when ordered by the court.  A DUI case of any case I handle has the most opportunity to act now rather than later; this could mean flexibility to travel, get your kids to school, get to and from work and to avoid time consuming tasks during bond; if you want your freedom during a DUI, adopt the time value of money.

The client value chain will supply our asset column.  The liabilities are the case before us; the worst version of it, and the equity will ask "what's in your pocket?"; if you're a 45 year old with no prior history, then you 45 years of credit; if you're a hard working nurse, a great parent and already active with a non-profit, those are points for you.  If you're struggling to find work, you have a criminal record, or you're very young, we have less equity and simply need to create more assets; every case is different with a unique approach.  The key is to make everything measurable and compatible so we can focus on the 3 R's.

We need to begin with the reset, move to the rebrand, and hopefully reap the rewards at the conclusion of your case, and thereafter once the case is over.  ​

 1. What is the definition of a repeat offender?
“Repeat Offender” as used in the new legislation applies to persons who are eligible for vehicle plate confiscation and immobilization. This applies to any arrest for a 2nd alcohol or drug violation while operating a motor vehicle (convictions for murder, manslaughter, and negligent homicide with a vehicle are included in this calculation), or an arrest or citation for a 3rd
violation while suspended or revoked.

Convictions and suspension/revocation violations appearing on the driving record prior to October 1, 1999 will be used to determine eligibility for repeat offender status.

2. What are “violations of suspension/revocation” on the driving record?
Mandatory additional suspension/revocation actions are imposed by the DOS for commission of any moving violation during a period of suspension/revocation. Look for language that looks like:

“Addl Admin Denied and Revoked (MCL 257.904)”
“Addl to Court Sup.”
“Addl Admin Revocation (MCL 257.904)”
“Addl Susp from (date)”
“Addl to Court Revocation (MCL 257.904)”

At the Stop

3. How does the police officer know a defendant is a “repeat offender”?
At the time the officer requests a driving status on a 35;. If the LEIN/SOS message returns a “001" or more, in the prior “alcohol conviction” field and you are arresting for drunk driving, take the plate, destroy it, and issue a paper plate. If the LEIN/SOS message returns a “002" or more, in the “prior additional suspension/revocation” and you are arresting for DWLS, take the plate, destroy it, and issue a paper plate. The officer or the court can also run a new record that will list every conviction and/or action used to compute and determine whether a defendant is a repeat offender. When used in conviction with the driving record it is easy to see which entries are being counted.

Use the following code:

PRIOR;Z123456789123. (Substitute actual operator’s license number for example and follow
with a period.)

4. Does the police department confiscate a leased, rental or commercial vehicle plate? What
about out-of-state plates, tribal plates, or trailer plates. Yes, leased vehicle plates are confiscated. Neither rental, tribal, trailer, manufacturer, dealer, US government, nor out-of-state vehicle plates are confiscated. Commercial plates may be confiscated unless they are Apportioned- International Registration Plan plates.

5. If the metal plate is expired at the time of the stop, would a paper plate be issued?
MSP plans to train their Troopers to issue the paper plate showing the expired date. This is because there is no authority to confiscate an expired plate. If the operator continues to drive the car without renewing the registration they could be re-ticketed for the expired plate.

6. What if the plate is improper or there is no plate on the vehicle?
The improper plate should be removed and a paper plate is issued but not placed on the vehicle. For both an improper plate or no plate, officer should leave the plate number field on the paper plate blank. Law enforcement enters the VIN and other information into LEIN. The court gets their copy of the paper plate but does not enter anything in the plate number field. An NOA is issued on adjudication. Immobilization may be ordered.
​
7. What does the officer do if there is already a paper plate on the vehicle?
The officer should take the previous paper plate off the vehicle and destroy it, then issue a new paper plate. Each adjudication gets a Notice of Adjudication. The drivers/defendants may be different for each paper plate.

8. Where is the vehicle going to be kept after the officer takes the plate?
The vehicle may be driven away by a person not otherwise prohibited to operate a motor vehicle (i.e. not drunk, not suspended, etc.). If there is no person available to drive the vehicle, law enforcement may have the vehicle towed as they do now. In addition, vehicles may be towed if they were reported stolen or in accordance with local police practice.

9. When does a paper plate expire?
The paper plate expires when the underlying plate expires or when adjudicated, whichever is sooner. If the underlying plate expires, the paper plate must be renewed at the branch office and a new paper plate will be issued.

10. How does the court know who the owner of a vehicle is?
The court could request law enforcement to provide a registration status with ownership information along with the ticket or complaint and the paper plate. Or, the court could run this if they have LEIN or SOS access.

11. What if the plate is confiscated in error?
If the error is discovered the same date as the confiscatio, simply delete the entry from the LEIN. If the error is not discovered until a later date, you may remove the flash by sending a message in
through LEIN requesting a correction to the record that includes the year, make, VIN, plate number, and date of offense.

Filing the Complaint

12. Can DWLS and OUIL be issued on a ticket?
Citations may be issued for a 93-day misdemeanor for 1st offense written under the Michigan Vehicle Code or a substantially corresponding local ordinance. 2nd and subsequent offenses carrying penalties over 93 days should be filed on a complaint and warrant.

13. Can DWLS and OUIL be written under local ordinance?
Yes, although cities and townships should amend their ordinances to provide for 93 day and
immobilization penalties.

14. What if the prosecutor chooses to charge 1st offense when there are prior convictions on the
record? This is the prosecutors prerogative. This would lesson the criminal penalties, but the license sanctions imposed by the Department of State will be based upon the driving record regardless of whether the defendant was convicted of 1st, 2nd, or 3rd offense. The court will receive no notice from SOS of the license action it takes. The defendant will receive a notice of the suspension or restrictions imposed with an effective date.

15. What if prints do not accompany the complaint from the police or prosecutor to the court?
The court would be obligated to order fingerprints taken prior to sentencing. The prints would have to be updated with the appropriate CTN from the county prosecutor, in order to match to the judgment of sentence, dismissal/ acquittal, or nolle prosequi sent to MSP-Central Records.
CTNs are not issued on ordinance violations. Convictions under ordinance for offenses with penalties up to 93 days must also be reported by submitting the original fingerprint card with a copy of the judgment of sentence, dismissal/acquittal or nolle prosequi form. Locations using LIVE SCAN submission of fingerprints should coordinate electronic submission of conviction information using the appropriate CTN or other local tracking number.

16. What if the prosecutor declines to authorize a complaint? How does the defendant get a new
metal plate?

The prosecutor has the obligation to notify law enforcement that charges will not be issued. The
prosecutor and law enforcement will have to work out an agreement as to which agency has the
responsibility to notify the defendant s/he may apply for a new metal plate. Either entity, may correct the LEIN entry which will clear the plate hold.

17. Will a fee be required to get a new plate if charges are not filed?
The Department of State will charge a $5.00 replacement fee for a new plate regardless of whether the defendant was ever charged or was convicted, or the case was dismissed.

18. How does the owner get a new metal plate after the case is adjudicated?
The court must provide the owner with an NOA (Notice of Adjudication) form. This is a combination form with the CORDL (Court Ordered Restricted Driver License). CORDLs will be used on pre October 1, 1999 alcohol cases and on all drug cases because the court will continue to impose license sanctions on these cases. On all new cases license sanctions will be imposed by the Secretary of State. The CORDL form will be used as an NOA on cases occurring after October 1st when a paper plate was issued. The owner may take this form to an SOS branch office to get a new metal plate.

Sentencing - Immobilization

19. If the defendant is sentenced to jail, can the car be immobilized during that time?
No. Immobilization must follow incarceration. See MCL 257.904d(6).

20. How does the court initiate immobilization, and how does the court determine that it occurred?

SCAO new form MC-267, Order for Vehicle Immobilization is designed for the purpose of ordering
immobilization. It contains a certification section by which the defendant can provide proof of
compliance with the order. 

21. Where are vehicles immobilized and who pays for it?

There are various methods by which this can be accomplished. Any technology that locks the ignition, wheels, or steering of the vehicle, or otherwise prevents any person from operating the vehicle, or that prevents the defendant from operating the vehicle may be used. The court may order the vehicle stored at a location and in a manner it considers appropriate. Costs for immobilization may be ordered paid by the defendant.

The court might wish to provide defendants with a specific place to have a vehicle immobilized, such as an impound lot, or it might wish to provide a list of choices and require the order to be returned completed as verification. Local circumstances and availability of locked storage lots or other means of immobilization will impact these decisions.

22. How much time does the defendant have to prove the vehicle is immobilized? What if the
defendant fails to provide proof of immobilization?

Each court must determine how much time to provide for immobilization, and how it will proceed if no proof is provided. The court could set a specific date by which immobilization must occur, or if facilities are available, make it immediate (other than when incarcerated). There could be an Order to Show Cause, with a subsequent Order for Vehicle Impoundment(MC-254) and/or a Bench Warrant for failure to comply with a court order or a condition of probation.

23. How can an innocent owner address the court regarding possible immobilization?
One way could be that the innocent owner files a motion to prove they did not knowingly allow the
offender to operate. Each court should determine at what stage it wants to decide this issue; before
sentencing or at sentencing and how the judge will make that determination.

24. Will the LEIN/SOS response on a vehicle status inquiry indicate a vehicle has been
immobilized?

Yes. It will show the dates of immobilization along with the DLN of the offender.

25. If defendant uses immobilization tether technology that prevents only him/herself from driving the vehicle, how will law enforcement know that a non-defendant is legally operating the
vehicle?

The driver license number of the defendant will appear on the registration record for the vehicle
ordered immobilized. If a vehicle is driven by someone other than the defendant, law enforcement is being trained to inquire as to why the vehicle isn’t immobilized. The driver then should have
documentation to show the officer identifying the tether technology has been installed or a copy of the Order of Immobilization.

26. Who monitors the defendant during immobilization to make sure s/he does not purchase or
lease another vehicle?

During immobilization the offender may not purchase or lease another vehicle. Only the offending
vehicle is affected by the immobilization order. SOS will monitor for no transfer to a family member. It is a crime to purchase or lease a new vehicle and the defendant will be subject to prosecution.

27. Is there any mandatory jail time?

For a 2nd offense OUIL/OWI within 7 years there is either a minimum of 5 days in jail or a minimum 30 days community service. For a 3rd offense OUIL/OWI within 10 years there is either a mandatory 1 year jail, or with probation, a mandatory 30 days jail.

28. How are suspensions and restrictions applied to the driving record, and how is the driver
notified?

Upon receipt of the conviction abstract the Department of State will impose the minimum license
sanctions. Restrictions will be the broadest possible under the statute, and the defendant will be
required to carry documentation proving their reason for driving (such as letter from employer, school schedule, doctor’s appointment card, etc.). The driver is notified by letter by DOS.

29. How is vehicle forfeiture handled?

This procedure is outlined in MCL 257.625n, and is initiated by the prosecutor. There are several
SCAO forms; MC-66, MC-68, and MC-69. If the court orders forfeiture the unit of government that seized the vehicle sells it and disposes of the proceeds according to statute.

30. If a defendant has been denied the ability to register a vehicle who will check to see if s/he tries
to purchase or lease another vehicle during the denial period?

It will be a crime for a person to purchase or lease another vehicle. Any person suspended or revoked for a 3rd drunk driving or 4th DWLS will be denied the ability to transfer a vehicle to a family member without a court order.

31. Will specific restrictions (work hours, etc. appear on the driving record for license
restrictions?

No. These will only appear for old law cases. Any offense occurring on or after 10/1/99 will receive
“generic” restrictions and the operator must carry proof of destination and hours with them.

32. When the LEIN/SOS driver status response indicates the operator may only drive a vehicle
with an ignition interlock device, what does this mean?

When repeat alcohol offenders are returned to the road with a restricted license, hearing officers must place them on an ignition interlock device for a minimum of one year. This device requires a person take and pass a breath test before operating a vehicle.

https://www.michigan.gov/documents/Repeat_Offender_8731_7.pdf

If you've been charged with drunk driving in Michigan, and have a scheduled zoom arraignment, it's important to understand your obligations.  While you do not need to physically go to the courthouse, the hearing and consequences do not change.  

You are subject to the same rules and expectations meaning your professionalism, dress and your background for attending court.  Court rules will tell you to stay on mute until case called and put your full name as your user name, but the court does not tell you the important elements that go into a good zoom hearing.  

The first step is realizing that the judge and prosecutor will only see a face on a screen and will judge you based on the police report and charges.  You have no way to change your story with your face and your voice, it comes down to out of court actions.  This means being proactive between the incident and your first court date.  If you or someone you love has a Zoom hearing for drunk driving in Michigan, let's discuss a plan.  Call me at 248-924-9458 or email me jonathan@michiganlawgrad.com

Welcome to the 15th District Court bench as a new judge.  Here is some information about Judge Perry prior to becoming a judge in Ann Arbor.

​Miriam A. Perry currently serves as a clinical teaching fellow in the University of Michigan Law School’s Veterans Legal Clinic. Prior to the fellowship, Perry worked as an assistant public defender for Washtenaw County, representing clients in a wide range of criminal proceedings. She has also served as a judicial attorney for the 3rd Circuit Court of Wayne County and a law clerk for the United States District Court for the Eastern District of Michigan.

Perry is a member of the Black Women Lawyers Association, National Bar Association, Washtenaw County Bar Association, Women Lawyers Association, NAACP, and Ann Arbor Alumnae Chapter of Delta Sigma Theta Sorority, Inc. She holds a Bachelor of Arts in Economics from Spelman College and earned her Juris Doctor degree from the University of Michigan Law School. Miriam is a life-long resident of Ann Arbor.
​
“I am humbled, honored, and grateful for the appointment to the 15th District Court,” Perry said. “My life’s work has revolved around serving people in this community. I am looking forward to helping ensure that a culture of fairness and impartiality exists for all people, in all cases.”

We look forward to working with Judge Brian Hartwell on upcoming drunk driving cases in the 43rd District Court.  

To learn more about DUI's in this court, here is a helpful link - 

​https://www.michiganduiplaybook.com/drunk-driving-hazel-park-district-court-oakland-county.html

We look forward to seeing how her office handles DUI's in Oakland County.  

"Please call me by my first name, and don’t be afraid to share your ideas."
Oakland County Prosecutor-Election Karen McDonald will be stepping in to her new role Jan. 1, but wants to build a solid foundation first and foremost with office staff to ensure a smooth transition and term as part of transition process. 

McDonald, a former county circuit court judge, defeated her Republican opponent Lin Goetz on Election Day and Jessica Cooper, who has served as the county prosecutor since 2009, during the August primary election. She received the highest number of votes of any countywide candidate, Democrat or Republican, in both the primary and general elections. 

If charged with a misdemeanor DUI in Romulus, New Boston, Huron Township, Belleville, Van Buren Township, Detroit Metro Airport or Sumpter Township the case will be heard by Judge Lisa Martin, Green or Oakley who handle the drunk driving cases at the 34th District Court.  The prosecutor will either be one of the local prosecutors for Romulus, Belleville, Van Buren Township, the special airport prosecutor or an assistant prosecutor from Wayne County, which is lead by Kim Worthy.  ​

​If you or someone you love has been convicted of drunk driving in Michigan, there are now options available to have the conviction removed from your record.  Prior to the law changing, someone convicted of drunk driving had to live the rest of their life with a criminal record.  Under current Michigan law, we can now expunge a first offense drunk driving.  

If someone has more than one drunk driving, there are other methods to be considered, and I would encourage you to reach out to discuss, but for now, we are going to focus on first offense DUI's for expungement consideration.  

Here is how the process works: 

When someone files an expungement in Michigan, there are a lot of different agencies involved, and everyone needs to agree to expunge the DUI conviction.

1. Michigan State Police - they are the custodian of the Michigan DUI conviction and must verify your record.

2. Michigan Attorney General is asked to submit a response to the expungement request, and they can fight and advocate for your DUI not to be expunged.

3. The original prosecutor on the case.  Either the county, city, township, or village; whoever was the original prosecutor on your Michigan DUI will have an opportunity to object to your request and will appear in court to share their response with the judge.

4. The original judge makes the ultimate decision based upon the input of the other people involved in your case.  

We will submit a comprehensive expungement application and supporting documents; above and beyond a few sheets of paper, which will likely be rejected by prosecutor and judge.  This is a big request; removing a DUI from a criminal record has NEVER been done in Michigan under the expungement process.  We need to take our very best shot.  You've lived all these years with a drunk driving on your record, let's do this right! 

When the new law was passed, the Prosecuting Attorneys Association of Michigan, the Michigan Sheriffs' Association and the Michigan Association of Chiefs of Police opposed the bill.  Here is what they said when the new law was passed

“Prosecutors are concerned about the underlying dynamics of drunk driving and therefore couldn’t philosophically support the policy," Matt Wiese, president of the prosecutors association, said in a statement.

I anticipate that it will be an uphill battle to have DUI's expunged in Michigan, which is why I have created a dynamic approach to helping my clients give themselves the very best chance to erase the DUI from their record.  Like my clients who come to me for new DUI's, my expungement DUI clients will be very proactive, organized and comprehensive in their approach.  

I look forward to discussing your DUI expungement with you.  When you reach out, please have the following information available.  Do not worry about formal records, we can help you track those down, but do your best to know the following:

1. The original court and judge
2. The year (exact date best) of when you were sentenced and were off probation.  Again, I can help you with exact dates, but any information there will be helpful

I will likely have you walk me through what you've been doing since discharged from probation, such as career, education, family and community.  We will help you get organized and put your best foot forward but be prepared to be an active participate in the process. 

You can either call me at 248-924-9458, email me at jonathan@michiganlawgrad.com or fill out the information form on this page, and I will get back to you in a timely manner. ​

Congrats to Judge Erane Washington for winning her judicial race at the 14B District Court.  We look forward to sharing our proactive defense with her as we represent clients moving forward in her court.