Drinking and driving is not illegal in Michigan, but impaired or intoxicated driving will get you arrested
If you asked the average person this question: "is drinking and driving legal or illegal in Michigan" - close to 100 percent would say illegal. That answer is actually incorrect.
As long as you are 21 years old, you are allowed to drink then drive a vehicle in Michigan - you can't drink while driving as that would be an open intoxicant in a vehicle, but prior drinking is not illegal. This act becomes illegal if that alcohol brings your blood alcohol content to 0.08 or above, or that alcohol causes your ability to drive to be impaired, which in Michigan the prosecution must prove beyond a reasonable doubt that the defendant's ability to operate was so weakened or reduced by the consumption of alcohol, controlled substances, or a combination of these that the operation was with less care than that used by an ordinary, careful and prudent driver".
Police officers love to testify about alcohol odors, admissions of drinking, statements about coming from bars or nightclubs etc; if the jury is not properly educated on what a prosecutor must prove, these facts could be harmful to your case, but a properly educated jury who understands the true prosecutor's burden, will view these as simply no indication of breaking the law - you must draw a certain inference for them to be relevant to answer the question or guilt.
Michigan Driver's License Suspended, Revoked, Restricted - Impaired, OWI, Super Drunk and Felony - What will the impact be on my ability to drive?
When charged with a DUI in Michigan, there are a number of consequences; one of those consequences is impact on your driver’s license. The court has no say over what happens to your license, because the Michigan Secretary of State is the lone authority on what happens to your ability to drive if convicted of DUI offense.
The Michigan Secretary of State can only sanction a Michigan driver’s license, which means if you have an out of state license, Michigan cannot do anything other than control your ability to drive within the State, but not outside of the State.
The Secretary of State can either restrict, suspend or revoke a driver’s license. A restriction allows some driving, typically to school, work, medical appointments, community service, counseling, court and a few other exceptions. A suspension can take away the driver’s ability to drive for a limited period of time, and once the time passes, the driving privileges resume. Revocation is a lifetime loss of driving privileges, but they can be restored by the Secretary of State at a future, but uncertain date.
License impact depends upon the type of conviction. Here is a brief breakdown of the most common offenses.
* Impaired Driving - 90 days restricted driving
* Zero Tolerance - 30 days restricted driving
* Intoxicated Driving/Drugged Driving - 30 day suspension, 150 days restricted
* Super Drunk - 45 days restricted driving, 320 restricted with ignition interlock installed
* Second Offense - 1 year suspension
* Third Offense - license revoked, eligible to reapply after 1 year
In Michigan, the criminal penal code says it’s a second offense if you have two convictions within seven years; the date of offense is used on the subsequent offense to make this determination. So if you were convicted on September 2nd 2001, you would fall into the second offense category if you are subsequently arrested on or before September 2nd 2008. For a third or more offense, there is no time limit; it’s simply within a lifetime. So you can have a conviction from 1950, 1999 and 2016.
There isn’t much strategy in timing when it comes to the criminal code; the best approaches are defeating the case, or resolution with a reduction, sobriety court or sentencing agreement. While timing for the criminal code can’t be impacted, it is the exact opposite when it comes to the Secretary of State.
The Secretary of State has the same seven year mark for second offenses, but they use the conviction date for measuring this period. This means that if you were convicted of a DUI on September 2nd of 2001, and subsequently arrested in the summer of 2008, there is a lot of strategy involved. If my client has decided to resolve the case or even go to trial, we make sure the “end” of the case takes place after September 2nd of that year, which would put us outside of the seven year window. The client if convicted would be treated as a first offender outside of the seven year window.
This strategy could mean the difference between losing his/her ability to drive for a full year vs being restricted for 90 days. This same strategy is even more crucial when it comes to third offenses.
Unlike the criminal penal code, the Secretary of State does use a ten year window. Many of my clients have two very old DUI’s from 10 to 20 years ago. While they will still be charged as a third offender, they can escape the license sanctions for a third offender with the right timing. There’s a chance a third offender could be treated as a second offender, or even a first offender with the right timing strategy.
Michigan Drunk Driving Cutting a Great Deal with the Prosecutor in Your Case - Being Proactive Case Dismissal and Reductions
When charged with a DUI offense in Michigan, a client has two options. The client can sit back, let their attorney do their job, and hope that things work out in the end. The other approach has the client equally engaged on a daily basis; this is the proactive approach, which all of my clients must do from day one.
I am very selective in who I agree to take on as a client; I am looking for motivated clients who are looking to change the perception of their case on a daily basis. When a client is arrested and charged with a DUI, the perception of the police, prosecutor, judge and the community is my client is a dangerous person, and can’t be trusted to make good choices with alcohol or driving. When a client’s freedom and ability to drive can be taken away, it’s time to get serious about changing this perception.
If I agree to take on a client, I provide the tools and resources for that client to be proactive on day one. Each case is different, and each program is customized, but generally the program involves an alcohol screening and assessment, alcohol education and/or treatment, attendance at AA meetings, proactive volunteer work, alcohol and drug testing among other components.
If my client follows my lead, it helps open options for our case. All DUI cases in Michigan are either resolved with litigation (motions, hearings or trial) or resolution (plea bargain with prosecutor).
As a former prosecutor in Michigan and New York City, I have worked out 1000’s of deals on both ends of the table. All cities, township and county prosecutors have a different litmus tests for plea bargaining, and each case is different. Most DUI cases have some ugly elements to it; prior criminal history, prior DUI history, high BAC reading, accident, client is under 21, rude behavior by my client to the police, along with a handful of other potential issues.
When it comes to resolving these cases, I need to overcome many negative facts in my client’s case, and my words alone can only go so far. All clients have jobs they can’t lose, all clients need to drive to work and to take care of their family, nobody can afford to go to jail, and nobody wants a DUI on their record.
These factors DO NOT make you unique when charged with a DUI. The more successful you are, the more professional licenses you hold, and the better career you have, the higher the standard is set by the prosecutor and judge. Just because you’ve been a doctor for 30 years, doesn’t mean a thing to a prosecutor; if anything it will be held against you for knowing better than getting yourself in this situation.
While I present my client’s past, present and where they are going in the future, this is not enough to distinguish my client. Because my client has spent weeks if not months being proactive, I can drop these accomplishments on the prosecutor and distinguish my client from the other names in the prosecutor’s stack of files.
These proactive accomplishments can be the difference between having or not having a drunk driving conviction on your record, losing or keeping your license, going to jail, having an interlock on your car for a year, having your car immobilized more points on your license, higher fines, costs and driver responsibility fees and other major differences.
By following my proactive program, you are helping your case every single day, and putting yourself in the best position to reach the best resolution within the context of your case.
As the client makes progress on the program, I proudly share this information with the prosecutor in order to educate them on how you are different than their typical case. I have set a high bar with past clients, so prosecutors are almost expecting my clients to be rock stars.
I lay out the client accomplishments in a memorandum to the prosecutor along with proposed motion that I would file if the case cannot be resolved. As a former prosecutor I provide this information in a very respectful way to the other side, and keep the door open for resolution, but I am firm in the possibility of litigating the case. This approach gives my client the best of both worlds.
Operating While Visibly Impaired
Operating While Visibly Impaired (OWVI) is usually a lesser offense of drunk driving in Michigan, and is usually used for plea bargaining purposes, or a jury may convict on this charge rather than a higher charge. Visibly impaired is similar to "under the influence" but has a lower standard to prove. In order to show an "operator was visibly impaired, the prosecution must prove beyond a reasonable doubt that the defendant's ability to operate was so weakened or reduced by the consumption of alcohol, controlled substances, or a combination of these that the operation was with less care than that used by an ordinary, careful and prudent driver". This weakening or reduction of the ability to operate must be visible to an ordinary, observant person.
A key point to the OWVI charge is a jury cannot presume the driver's ability to operate was lessened because of an alcohol test result. Like "under the influence" each drunk driving case is fact specific with strengths and weaknesses; your attorney will highlight factors that tend to show that you were not visibly impaired while driving. 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.
Here is the possible punishment for Operating While Visibly Impaired:
- Up to a $300 fine, and one or more of the following:
- Up to 93 days in jail.
- Up to 360 hours of community service.
- Driver's license restrictions for 90 days (180 days if impaired by a controlled substance).
- Possible vehicle immobilization.
- 4 points added to the offender's Michigan driving record.
- Driver Responsibility Fee of $500 for 2 consecutive years.
A Operating While Visibly Impaired in Michigan is similar to a straight Operating While Intoxicated, except the license sanctions are a lot more favorable. For an impaired offense there is no hard suspension, and the restrictions are only 90 days; the points and fines are also lower than the more serious offense.
If you've been charged with Operating While Visibly Impaired in Michigan, I want you to call me and tell me the facts of your case. I will want to know the answer to these questions:
- Why were you stopped by the police?
- Did you admit to drinking alcohol?
- How much did you actually have to drink?
- Did you perform field sobriety tests?
- Did you do a PBT? If so, were you informed of your rights?
- What sort of chemical test did you take? Blood? DataMaster?
- Did the police officer read you your rights, and did the officer wait 15 minutes before giving you the test?
Once I have those answers, I will give you a preliminary game plan for your case, but we're not done. We need to order the police reports, DataMaster logs, videos and audio from your incident. My first approach will be to DEFEAT your case with a dismissal or a not guilty verdict. I will also explore other options such as reductions to non-drunk driving offenses like Careless Driving.
You will know where you stands on the strengths and weaknesses of all possible defenses, and the best possible plea deal from the prosecutor. From there I will tell you as a former prosecutor what my advice would be for going forward with a trial, or whether or not you should consider the best plea offer. Ultimately you will make that decision with my guidance. I look forward to helping you. Call me now at 248-924-9458, and let me know your goals, and how I can help achieve those. Because my services are in such high demand, I only take on a limited number of cases each month. If I don't have room to take your case, I would be happy to suggest another good attorney.
DUI Attorney & Former Prosecutor Jonathan Paul