I stand before 100's of judges each year on DUI cases. If we're able to successfully resolve a case to the clients satisfaction, we will appear before the judge for sentencing. The charge may have been reduced to a lower DUI charge or even a non-DUI charge, but the judge will always examine the "original case", not what was worked out with the prosecutor.
For example, if my client creates enough leverage proactively and we find enough leverage within the facts of the case, we may be able to create a non-DUI outcome such as disorderly conduct. Even if we're able to do this, the judge is still going to treat the sentence as a drunk driving sentence; that's not necessarily a bad thing, but many clients think they are out of hot water if the prosecutor cuts a great deal.
There's two things a judge takes a "close look" at: was there an accident, and is the BAC number "high" - in my experience, a judge look at anything above 0.15 as a high, and anything with a 0.20 and up to be "concerning". When you're approaching being 3x the legal limit, terrible things are bound to happen, but for some luck that the client didn't kill someone with their vehicle.
A client may be able to function at 3x the legal limit, but it's very unlikely the judge believes that, nor cares if you're able to drive at that level. Even if a judge is not known for sending first offenders to jail, if you have a BAC at a "concerning" level, the changes go up on spending a weekend or more in jail in Michigan.
So what do we do to prepare for this scenario? We put safeguards in place such as daily alcohol testing, Impact Weekend, proactive community service, Intensive Outpatient (IOP) treatment among other steps from day one. We can't change a BAC number if we're going to be pleading on a case, but we can take the sting off the result.
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.
Starting in 2003, a person convicted of drunk driving in Michigan, may be required as a condition of probation to have an approved ignition interlock device installed on any vehicle the defendant drives. The ignition interlock is mandatory on a Michigan Super Drunk offense if the driver wishes to operate on a restricted license after 45 days. This interlock would need to be on the vehicle for all 320 days of restricted driving.
The Secretary of State is also required to revoke the driver license of a Habitual Offender and deny his or her application for another license. This would apply as a second of third offender of drunk driving. After the minimum period of revocation/denial, a Habitual Offender may be eligible for a driver license appeal hearing. If a restricted license is ordered, the hearing officer must require that the Habitual Offender install an ignition interlock device on any vehicle he or she owns or intends to operate. The person cannot drive until the the interlock is properly installed and proof of installation is presented to a local Secretary of State branch office. A judge would also have discretion to order an interlock as part of a bond condition or a sentence.
The ignition interlock is a breath alcohol analyzer, with computer logic and an internal memory. It connects with a motor vehicle's ignition and other control systems. The ignition interlock measures the driver's bodily alcohol content , and keeps the vehicle from starting if the BAC is .025 or higher. The device will also ask for random retests while the person is driving, which are called rolling retests.
If the interlock device records 3 start-up test failures in a monitoring period, or 1 rolling retest failure, or if it detects tampering, the vehicle must be taken to a service center immediately. If that service is not done, the interlock will go into a "lock-out" mode, and the vehicle cannot be operated. Test failures, tampering, or other BAIID-related violations will result in an extension of the time before the driver can ask for another driver license appeal hearing, or may require that the original license revocation/denial be reinstated.
This is an expensive device to have installed and maintained. Judges will not discriminate between positive results of a family member vs. yourself; if your brother uses your car, and he blows a positive result into the machine before operating, the court will most likely find you in violation of your probation. If you don't own a vehicle or your vehicle is immobilized for a period of time, you must make sure your attorney advises the court that you should not have to pay for the ignition interlock during this period of time.
Removing the Ignition Interlock
As a High BAC offender, you will be eligible to ask for permission to remove the interlock 1 year after the beginning of your original license suspension if you have not violated the terms of your driver license restrictions. You must include a report(s) from your interlock vendor(s) to the Administrative Hearings Section with your request for authorization to remove the interlock device.
Your request may be approved if there are NONE of the following:
- Instances of interlock test samples with a BAC of .025 or higher.
- Convictions for operating a vehicle without a properly installed interlock device.
- Evidence of tampering with, or circumventing, the interlock device.
- If your request is approved, you must take your Order Authorizing the interlock device removal to your provider before the device can be removed.
If no other license sanctions are in effect, you may take the Order Authorizing the removal to a Secretary of State branch office, pay the reinstatement fee, and return to full driving.
If you have your provider remove the interlock device without Secretary of State authorization, the provider is required to report the removal to the Secretary of State. This may be treated as an unauthorized removal, and may result in driver license sanctions.
DUI Attorney & Former Prosecutor Jonathan Paul