Michigan Criminal OWI (Drunk Driving) Defense Attorney

OWI (Drunk Driving)

"Drunk Driving Attorneys Available in Michigan"

If you or a family member has been charged with driving drunk, it is important to protect your rights. The experienced OWI defense attorneys of The Williams Law Firm will help you through the process. The police will work hard to get you to say and do everything they can to justify pulling you over and charging you with drunk driving. Over the past twenty-two years we have skillfully represented thousands of clients charged with DUI, DWI, OUIL, UBAL and the present phrase: OWI on Michigan roads. Let us help you too.

Definition of Drunk Driving in Michigan

Let me make a precatory remark: Why do people drink and drive? Because it's legal to! It is perfectly legal to drink and drive in Michigan, just not beyond a certain blood alcohol level.. a factor that is somewhat different for every person as it's based on body weight, mass index and other physiological factors. Prior to taking our drivers test to become licensed we don't have a clue where the line of danger is. We only learn of this, get educated, after the horse is already out of the barn. So, drinking and driving, however "legal," is sometimes as lethal as playing Russian roulette.

Michigan’s tolerance for drunk drivers went down to its lowest level as of Sept. 30, 2003, when .08 blood-alcohol content (BAC) becomes the drunk driving standard.  Prior to that date Michigan had a two-tiered standard, with .10 BAC or greater considered drunk driving and .08-.09 BAC being impaired driving. There was a time in the not too distant past when the Michigan legal limit was .15. Times have indeed changed, and without question for the good of society.

Click on the line below for an overview of what each of the fiftey States do regarding alcohol/driving limits:

State by State Blood Alcohol Limits <-click on it!

When I point out to new clients that roughly eighteen thousand (17,941 last year) people are killed in this country each year because of drunk drivers, without exception everyone thinks that this is a national disgrace. The 9/11/01 World Trade Center attack killed 2,752 people. This means that better than SIX TIMES the number of people killed in the twin towers are killed by drunk drivers EACH AND EVERY YEAR! And it doesn't stop, ever.
           
People always want to know when they are arrested why is is impaired driving better, or different, than pleading guilty to drunk driving, OWI. The major advantage of impaired driving in comparison to drunk driving is assessing four, instead of 6, points on the driver’s record, less strict license suspension measures. It will be recorded by the Secretary of State to keep track of repeating alcohol-related driving offenses.

Sometimes too I am asked that when a person blows relatively low on the breathalyzer, is the charge of reckless driving, a 6 point traffic misdemeanor, preferable to a 4 point impaired driving conviction, as reckless does not "scream" alcohol. Not uncommonly, especially in township or city cases, this might be an offer. My answer is pragmatically.. "practically never." The reason is based on the long term best interests of the client, which at the moment of the short term may be obscured. The criminal conviction of reckless driving has a longer suspended period with a hard time (no driving at all) suspension of thirty days, carries 6 points (as does OWI, negligent homicide, vehicular homicide, fleeing and alluding and other highest of the points traffic misdemeanors), is used to revoke one's license (not suspend) if two offenses of either OWI, impaired or reckless occur within a seven year period, and usually has a much more grievous effect on your insurance rate. There is one instance, however, that it is a better choice, to wit: a reckless conviction does not count in the three convictions over your lifetime "Heidi's Law" felony conviction scenario as will be later discussed, and therefore if you have had two alcohol driving conviction that are of record and your are now offered a reckless.. take it!

If this is your second alcohol-related driving offense with seven years, you face a revocation of your driver’s license for a period of one to five years, without the possibility of appeal to drive on a restricted basis. Your attorney, however must look out after your short -term, as well as your long-term interests, and therefore, will strategically prepare your for the future restoration of your driver’s license already during his dealings with initial charge by choosing remedial measures which will be beneficial for both the criminal matter at hand as well as for the civil matter a year from now.

Effects of Alcohol

Driving requires concentration, motor skills, common sense, and a concern for the safety of everyone on the road. Alcohol affects people differently. Mixing drugs or medications with alcohol can be especially dangerous and even deadly, especially behind the wheel.

The effects of alcohol are the same whether you drink beer, wine, or whiskey. A 12-ounce can of beer, 5-ounce glass of wine, and a 1.5 ounce shot of whiskey all contain the same amount of alcohol. Drink a standard serving of any of these and the effects will be the same to your body. Your judgment and self-control will be affected. Drinking even one drink can impair your ability to drive, slow your reaction time, dull your concentration, and cause visual problems. Many people mistakenly believe that coffee, a cold shower, exercise, or fresh air can sober them up. The only thing that sobers you up is time.

Will my car be immobilized?

If this is your first offense, your car may be immobilized depending upon the judge’s discretion. Of the 100 District courts in Michigan, only one (and within that District only one of the two judges) routinely immobilizes on a first offense within seven years. Therefore, we advise you to contact an attorney who is familiar with the immobilization policies of the local judges.

As for the second and subsequent offenses occurring in less then seven years, immobilization is mandatory, unless the vehicle in not in your name, and the owner of this vehicle was not aware of your intention to drive while intoxicated. In some cases your vehicle may be seized and sold.

Types of Charges

Operating While Visibly Impaired (OWVI) means that because of alcohol or other drugs in your body, your ability to operate a motor vehicle was to some degree visibly impaired, to wit: reaction time, comprehension, mobility, etc.

Operating While Intoxicated means the alcohol or drugs in your body substantially affected your ability so you could not operate a motor vehicle safely. It can also mean that your bodily alcohol content was at or above 0.08. This can be shown by a chemical test but all of this is subject to factual and legal challenge.

Operating With Any Presence of a Schedule 1 Drug or Cocaine means having even a small trace of these drugs in your body even though you may not appear to be intoxicated or impaired.  This can be determined by a chemical test, and again is subject to factual and legal challenge.

Under Age 21 Operating With Any Bodily Alcohol Content means having a BAC of 0.02 to 0.07 or any presence of alcohol other than that consumed at a generally recognized religious ceremony.

Overview of the Crime of Drunk Driving

Each US state has its own set of drunk-driving laws, but there are certain concepts and features common to most states' drunk-driving jurisprudence. Basically, as we all know, it is illegal and a crime for a person to operate a motor vehicle after consuming alcohol and/or drugs to a degree that impairs his or her safe driving ability and judgment. Both criminal and civil penalties for drunk driving can be harsh and often include:

• Loss or suspension of license
• Large fines and court costs
• Substance-abuse treatment
• Jail or prison time
• Community service
• Restitution
• non-expungible criminal record
• Restrictive probationary license programs, including ignition interlock devices

In addition, the social stigma and effect on your career may have lifelong negative consequences.

The Law: Driver License Actions

First Offense:

OWI (Operating While Intoxicated) or Operating With Any Presence of a Schedule 1 Drug or Cocaine (OWPD)
$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 license suspension for 30 days, followed by restrictions for 150 days.
Possible vehicle immobilization.
Possible ignition interlock. 
Six points added to driver record.
$1,000 Driver Responsibility Fee for two consecutive years for OWI.
$500 Driver Responsibility Fee for two consecutive years for OWPD.

OWVI (Operating While Visibly Impaired)
Up to $300 fine and one or more of the following:
    Up to 93 days in jail.
    Up to 360 hours of community service.
Driver license restriction for 90 days (180 days if impaired by controlled substance).
Possible vehicle immobilization.
Four points on driver record.
$500 Driver Responsibility Fee for two consecutive years.

Any combination, second offense within seven years:

OWI (Operating While Intoxicated)
$200 to $1,000 fine and one or more of the following:
    Five days to one year in jail.
    30 to 90 days community service.
Driver license denial/revocation for a minimum of one year.
License plate confiscated.
Vehicle immobilization 90 to 180 days unless vehicle is forfeited.
Possible vehicle forfeiture.
Six points on driver record.
$1000 Driver Responsibility Fee for two consecutive years.

OWVI (Operating While Visibly Impaired)
$200 to $1,000 fine and one or more of the following:
    Five days to one year in jail.
    30 to 90 days community service.
Driver license denial/revocation for a minimum one year.
License plate confiscation.
Vehicle immobilization 90 to 180 days unless vehicle is forfeited.
Possible vehicle forfeiture.
Four points on driver record.
$500 Driver Responsibility Fee for two consecutive years.

Any combination, third offense within lifetime (felony):

OWI (Operating While Intoxicated)
$500 to $5,000 fine and either:
    One to five years imprisonment.
    Probation with 30 days to one year in jail.
60 to 180 days community service.
Driver license denial/revocation for a minimum five years.
License plate confiscation.
Vehicle immobilization one to three years unless vehicle is forfeited.
Possible vehicle forfeiture.
Registration denial.
Six points on driver record.
$1000 Driver Responsibility Fee for two consecutive years.

OWVI (Operating While Visibly Impaired)
$500 to $5,000 fine and either:
    One to five years in prison.
    Probation with 30 days to one year in jail.
60 to 180 days community service.
Driver license denial/revocation for a minimum of five years.
License plate confiscation.
Vehicle immobilization one to three years unless forfeited.
Possible vehicle forfeiture.
Registration denial.
Four points on driver record.
$500 Driver Responsibility Fee for two consecutive years.

First offense

OWI/OWVI/OWPD/DWLS causing death/serious injury (felony)
    Death-Up to 15 years imprisonment OR $2,500 to $10,000 fine, or both.
    Injury-Up to five years imprisonment OR $1,000 to $5,000 fine, or both.
    Emergency Responder Death-Up to 20 years imprisonment OR $2,500 to $10,000 fine, or both
Driver license denial/revocation for a minimum of one year.
License plate confiscation.
Vehicle immobilization up to 180 days unless forfeited.
Possible vehicle forfeiture.
$1,000 Driver Responsibility Fee for two consecutive years.

Second offense (any prior crime within seven years):

OWI/OWVI/OWPD/DWLS causing death/serious injury (felony)
    Death-Up to 15 years imprisonment OR $2,500 to $10,000 fine, or both.
    Injury-Up to five years imprisonment OR $1,000 to $5,000 fine, or both.
    Emergency Responder Death-Up to 20 years imprisonment OR $2,500 to $10,000 fine, or both.
Driver license denial/revocation for a minimum of five years.
License plate confiscation.
Vehicle immobilization 90 to 180 days unless vehicle is forfeited.
Possible vehicle forfeiture.
$1000 Driver Responsibility Fee for two consecutive years.

Open Intoxicants in a Motor Vehicle
Up to a $100 fine.
First offense-no action is taken against driver license.
Second offense-driver license is suspended for 30 days/restricted for 60 days.
Third offense-driver license is suspended for 60 days/restricted for 305 days.
Alcohol screening may be required.
Two points on driver record.

Actions for Drivers Under Age 21:
Zero Tolerance (under age 21)

First Offense
Up to $250 fine and/or
Up to 360 hours of community service.
Driver license is restricted for 30 days.
Four points on driver record.
$500 Driver Responsibility Fee for 2 consecutive years.

Second Offense within seven years:
Up to $500 fine and/or
Up to 60 days community service.
Up to 93 days in jail.
Driver license suspension 90 days.  Any prior drunk driving conviction results in a minimum one-year driver license revocation.
Four points on driver record.
$500 Driver Responsibility Fee for two consecutive years.

Person Under 21 purchase/consume/possess alcohol:

First offense-$100 fine, no action is taken against driver license.
Second offense-$200 fine, driver license is suspended for 30 days/restricted for 60 days.
Third offense-$500 fine, driver license is suspended for 60 days/restricted for 305 days.
Community service may be required.
Alcohol screening may be required.

Person Under 21 transport or possess in a motor vehicle:

Up to a $100 fine.
First offense-no action is taken against driver license.
Second offense-driver license is suspended for 30 days/restricted for 60 days.
Third offense-driver license is suspended for 60 days/restricted for 305 days.
Alcohol screening may be required.
Community service may be required.
Two points on driver record.
Vehicle can be impounded up to 30 days.

Use Fraudulent ID to Purchase Liquor

Up to a $100 fine, 93 days in jail, or both.
90-day driver license suspension.
Alcohol screening may be required.

DWLS (Driving While License Suspended)

Up to $500 fine, up to 93 days in jail, or both.
Mandatory additional suspension.
$500 Driver Responsibility Fee for two consecutive years.

DWLS (second offense)
Up to $1,000 fine, up to one year in jail, or both.
Mandatory additional suspension.
Vehicle may be immobilized for up to 180 days.
$500 Driver Responsibility Fee

DWLS (third offense-must have two priors within seven years-misdemeanor)
Mandatory additional suspension.
License plate confiscated.
Vehicle immobilized 90 to 180 days.
$500 Driver Responsibility Fee for two consecutive years.

DWLS (fourth offense-must have three priors within seven years-misdemeanor)
Same as for third offense.

DWLS (fifth offense-must have four priors within seven years-misdemeanor)
Mandatory additional suspension.
License plate confiscated.
Vehicle immobilized one to three years.
$500 Driver Responsibility Fee for two consecutive years.

Drivers Responsibility Fees (complete list)

These are due not to the Secretary of State but to the Michigan Department of Treasury. If you do not pay these fees or have a payment plan from them, the will notify the Secretary of State and your drivers license will be suspended. They are as follows:

Assessed $1,000 per year for two years

• CDL Manufacture/Distribute a Control Substance (1140)
• Fail to Use Due Care Causing Death of Person Operating Implement of Husbandry (1804)
• Fail to Use Due Care Causing Injury of Person Operating Implement of Husbandry (1803)
• Failed to Stop After P. I. Accident (1610)
• Failed to Stop or Identify After P. D. Accident (1630)
• Failed to Stop or Identify After P. I. Accident Causing Serious Impairment of a Body Function (1600)
• Failure to Stop or Identify After P. I. Accident Causing Death (1605)
• Failure to Use Due Care and Caution Causing Death of a Construction Worker (1802)
• Failure to Use Due Care and Caution Causing Injury of a Construction Worker (1801)
• Failure to Yield For an Emergency Responder Causing Death (1808)
• Failure to Yield For an Emergency Responder Causing Injury (1807)
• Fatality Through Negligent or Criminal Operation of a CMV (1405)
• Felonious Driving (1450)
• Felony With Auto Used (1440)
• Felony/Auto Used (1430)
• Fleeing and Eluding officer 1st Degree - Causing Death (1706)
• Fleeing and Eluding Officer 2nd Degree -  Causing Serious Injury (1707)
• Fleeing and Eluding Officer 3rd Degree (1708)
• Fleeing and Eluding Officer 4th Degree (1709)
• Manslaughter (1400)
• Murder/Auto Used (1420)
• Negligent Homicide (1410)
• Operated Commercial Motor Vehicle with BAC .04 .07 (1230)
• Operated While Intoxicated or While Impaired By Controlled Substance Causing Death (1120)
• Operated While Intoxicated or While Impaired By Controlled Substance Causing Serious Injury (1130)
• Operated While Intoxicated or While Impaired By Liquor Causing Death of An Emergency Responder (1035)
• Operated While Intoxicated or While Impaired By Liquor Causing Serious Injury (1040)
• Operating While Intoxicated (1025)
• Operating While Intoxicated or While Impaired Causing Death (1030)
• ORV - Allowed Person Under Influence Alcohol/Controlled Substance To Operate (8030)
• ORV - Combined Operated Under Influence Liquor/Controlled Substance (8015)
• ORV - Combined Operated Under Influence Liquor/Unlawful Bodily Alcohol Content (8025)
• ORV - Operated Under Influence of Controlled Substance (8010)
• ORV - Operated Under the Influence of Liquor (8000)
• ORV - OUIL/OUID/OWI Causing Death (8040)
• ORV - OUIL/OUID/OWI Causing Serious Impairment of A Body Function (8050)
• ORV - Unlawful Bodily Alcohol Content (.10) (8020)
• Snowmobile - Felony/Snowmobile Used (7300)
• Snowmobile - Operating Under the Influence of Controlled Substance Causing Death (7120)
• Snowmobile - Operating Under the Influence of Controlled Substance Causing Serious Impairment of A Body Function (7130)
• Snowmobile - OUIL Causing Death (7030)
• Snowmobile - OUIL Causing Serious Impairment of A Body Function (7040)
• Unlawful Driving Away Auto (1500)

Assessed $500 per year for two years

• Child Endangerment (1150)
• Combined OWI and Controlled Substance (1220)
• Drove Commercial Motor Vehicle While Disqualified (3230)
• Drove While License Suspended/Revoked/Denied (DWLS) (3200)
• DWLS Causing Death (3235)
• DWLS Causing Serious Injury (3245)
• No Insurance Under The Insurance Code (3108)
• Operated While Impaired By Controlled Substance (1210)
• Operating While Impaired By Liquor (1200)
• Operating With Presence of Drugs (OWPD) (1105)
• Person Under 21 With BAC (1240)
• Reckless Driving (1800)

Assessed $200 per year for two years (as of May 1, 2004)*

• No Proof of Insurance (3100)
• No Insurance (3106)

Assessed $150 per year for two years

• Drove w/o Proper License/Endorsement/Vehicle Group Designator (3020)
• Drove While License Expired (3220)
• Drove While Unlicensed or License Not Valid (3010)

*NOTE: Under Public Act 52 of 2004, effective May 1, 2004, "No Proof of Insurance" offenses will not be sent to the Michigan Department of State if the driver can provide proof of insurance prior to the court appearance date on the ticket. Drivers who do not show their proof of insurance will still be charged a fee of $200 for two years. It is the driver's responsibility to present proof of insurance to the court before the appearance date.
 

The Role of Probation in Drunk-Driving Sentencing

Probation is by far the most common sentence for people convicted of drunk driving, especially for first-time offenders. Probation is a criminal sentence served in the community, rather than in jail or prison. Most states limit terms of probation to a maximum of five years. If you are facing a drunk-driving charge, an experienced lawyer can assist you with your defense and, if necessary, advocate for a fair sentence.

The Prosecutor's Role in a Drunk-Driving Case

Prosecution refers to the government's role in the criminal-justice system. When criminal activity is suspected, it is up to the government to investigate, arrest, charge and bring the alleged offender to trial. A prosecutor is a lawyer who works for the government and who is responsible for developing and presenting the government's case against a criminal defendant. Prosecutors may be called county attorneys, city attorneys, district attorneys or states' attorneys. The prosecutor is the opponent or "adversary" of the criminal defendant and his or her attorney; the two sides go head-to-head against each other in court.
 

Reliability of Breath-Test Results in a Drunk-Driving Case

In every state in the US, a driver with a blood-alcohol concentration (BAC) of .08 or higher is presumed to be legally intoxicated for drunk-driving purposes. Each state has also enacted an implied-consent law. Implied-consent laws provide that every licensed driver within the state is considered to have given his or her consent to chemical testing to determine his or her BAC whenever a law enforcement officer has reasonable suspicion of intoxication. In Michigan, refusal to submit to such a test results in license suspension or revocation.

Michigan's Implied Consent Law

If arrested, you will be required to take a chemical test to determine your bodily alcohol content (BAC). Under Michigan's Implied Consent Law, all drivers are considered to have given their consent to this test. If you refuse a test, six points will be added to your driver record and your license will be suspended for one year. Please be aware that suspension of a license is automatic for any refusal to submit to the test. This is a separate consequence from any subsequent convictions resulting from the traffic stop. If you are arrested a second time in seven years and again unreasonably refuse the test, six points will be added to your driver record and your license will be suspended for two years. If you refuse to take the test under the Implied Consent Law or if the test shows your BAC is 0.08 or more, the officer will destroy your driver license, and you will be issued a 625g paper permit on which to drive until your case is resolved in court. There are no hardship appeals for a restricted license the second time you refuse.

The Impact of a Drunk-Driving Conviction on Your Auto Insurance

An alcohol-related car accident and subsequent drunk-driving conviction can bring many negative consequences into your life, possibly including jail or prison time, a criminal record, car repair or replacement, restitution, guilt and grief over harm to others, higher insurance premiums, a civil lawsuit, fines, court and administrative fees, community service, alcohol education, substance-abuse treatment, social stigma, restrictions on or revocation of your drivers license, attorneys fees, restrictive probation and others. If you are arrested for or charged with drunk driving, a criminal-defense lawyer can advise you about your legal rights and help you fight the charges.

Here are just a few of the ways you can defend yourself:

There is case law, to wit: People v. Rutledge, 250 Mich. App. 1 (2002), 645 N.W. 2d 333, which, in part, negates aspects of the MIP arrest. This case dealt with the MIP law.

In a ruling dealing with the legality of the PBT use, in the U.S. District Court for the Eastern District of Michigan, Northern Division, the PBT was found to be an invasive search requiring a warrant. Judge David M. Lawson ruled that the Bay City ordinance was virtually the same as the State Statute [MCL 436.1703 (6) ] and ruled the State Statute unconstitutional in an opinion dated Nov. 18, 2003.

Yet still, State universities, colleges, and some county prosecutors still authorize warrants and judges will accept guilty pleas under the 1998 law!

There are literally dozens of other challenges which likewise may apply to your case, such as what constitutes "driving," was there a legally constituted "accident" which allowed the officer to charge when no one saw the vehicle now stuck on the side of the road, etc. Besides these case law challenges, was there probable cause for the stop or was the officer just curious, was there probable cause for an arrest if you passed all of your sobriety/dexterity tests on the road side, etc., all of these being valid challenges. It would serve you well to consult with an experience attorney before you decide just to go in and plead guilty.

The Drink Wheel
On-Line BrAC Calculator
About Disclaimer

About the Drink Wheel

The Intoximeters Inc. "Drink Wheel"¹ is a form that you can fill out. Upon completion we will instantly compute your estimated blood/breath alcohol concentration ("BAC") based on the information that you have provided and return that estimate to you. It is presented as a public service to Intoximeters web site visitors. Its primary purpose is to provide useful information about the responsible use of alcohol.

Why is it called a "Drink Wheel"?

We call it the "Drink Wheel" because it is based on various paper and cardboard BAC calculators that are given out in alcohol awareness programs, some of which are in the form of a wheel that you can spin around to calculate your estimated BAC based on what and how much you have had to drink.

Disclaimer

It would be extremely foolish for us to pretend that our "Drink Wheel" can tell you what your BAC actually is, first because it would open us up to an incredible amount of potential liability and second if it really did work accurately there would be no need for anyone to buy the instruments that we make and sell.

A person's actual BAC is dependent on many complex factors, including their physical condition (body composition, health etc...) and what they have recently ingested (including food, water, medications and other drugs). This site includes a more detailed discussion of the Pharmacology and Disposition of alcohol in humans.

The results that are generated are rough estimates of an average healthy person's BAC assuming typical beverage sizes, recipes and alcohol content. The BAC estimates generated by the Drink Wheel should not be used to infer anyone's fitness to work, drive or perform any other task or duty.

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"What do I do If I'm Ever Pulled Over After a Few Drinks?"

This could be one of the most frightening questions one could ask, but it happens literally hundreds of times each day.

The points mentioned below are designed for two reasons only:

1) to inform you of what might be expected regarding an unpleasant and often life changing experience, and  

2) to have the police report read as un-damagingly as possible when your attorney reviews it with the prosecutor at your pre-trial conference.

These thoughts may assist you should you ever be stopped when you are in vulnerable position. You may wish to read them over just once beforehand so that they might be better recalled if the need should ever arise.  If you are pulled over in such a situation you will be at a sever disadvantage. This is what happens.

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Point one - after being pulled over

1.1. If you see a police vehicle behind you with its over-head lights on, maintain the demeanor of your car by not radically making any sudden or abrupt changes in speed or movement from side to side. Come to a stop as quickly as possible on the side of the road unless otherwise instructed. If you have had anything to drink at all, roll down your window at the earliest possible time. turn off your engine, compose yourself to be as relaxed as possible, and await the officer to approach your window. Do not go searching for your papers, such as license, registration, and proof of insurance until the officer asks for them. To search for the papers ahead of the time will unnerve you needlessly. Once you are stopped you have plenty of time.
1.2. Always be polite and courteous. Your physical demeanor, behavior, and attitude will be placed in keen focus by the prosecutor when he or she reads the officer’s report of the incident.
1.3. After the officer requests your driver license, registration and proof of insurance, try to find them as quickly as possible. Do as little talking as possible.
1.4. The officer may then ask you if you had been drinking. you are not obligated to answer affirmatively if your interpretation of his or her question, given the circumstances, means not just prior to being stopped or if it was beyond a reasonable time period prior to being stopped. If you do answer affirmatively, be sure to mention that you had a drink considerably earlier in the day or evening if that was the case. Again, do not offer too much information as everything you say will likely appear in the police report and could potentially be used against you.

Point two - Stepping out of the car

2.1. The officer may then ask you to step out of the car to do “field dexterity tests” or “sobriety test.” This is normal procedure, so try not to be too nervous. Absolutely cooperated and be courteous.
The tests are relatively easy, but listen carefully to the instructions that must be given before each test.             
 
The standard tests include:

1. The alphabet-  Compose yourself, listen to the instructions, and say them clearly and loudly so that the officer cannot say you “slurred” or missed letters when you did not.  Be aware that experience has been to see that police officers will ask you to start with “M” for example, and end at “S”.  Listen to the instructions carefully.
2. Counting numbers:  Again watch out for (example) “start at 56 and end at 43"
3. Walk a straight line:  Nearly every road is curved or “pitched” to allow rain to run off; in other words, roads are not flat.  If you are wearing boots or high heels that might make this test unfair to you, mention to the officer that the road is not flat, there is a wind, and/or if you can take your high heels off if any of these factors apply. During this test the officer watches for swaying and balance.  Be relaxed.  If he or she says that you failed this test, re-compose yourself, and do not argue or get upset.
4. Finger to nose test:  This test deals with equilibrium and, as such, is largely mind over matter. As you tip your head back, after listening to the officer’s detailed instructions, shut your eyes and mentally direct your finger to your nose. Looking at the sky with your head back with the bright police car strobe lights flashing will make you dizzy and may well affect your balance.

2.2.  If you fail any portion of the field sobriety tests the officer may ask you to take a “PBT” test (Portable Breath Test).  Take it. If you refuse, it is a civil infraction. The results of this test can assist me to show that you were going up and twenty minutes earlier, when you were driving, base upon the increased BAC numbers on the station house tests some forty minutes later that you were not legally over the limit when actually driving (only after you were stopped).

 2.3.  Officers routinely comment on “smelling alcohol on your person” If you cleaned up spilt beer and it was on your hands, or if someone bumped into you and alcohol got on your clothes.. including your trousers, mention this to the officer so that they may have the opportunity to see and smell for him or herself.  They rarely will. Never admit how much you had to drink unless you are absolutely sure of the exact amount.  Better to say, a few, or a moderate amount if you are unsure rather than guess at how much of the pitcher you actually drank. If you have had any alcohol in the last three to four hours, try to stand at least three to four feet from the officer.

2.4. If you had been working all day, are tired, or if you have had or have a cold or illness, mention this to the officer, politely, it will be a response to a question, if asked, as to why your eyes are blood shot.  If you are on medication and just stepped out to get milk for the morning, mention this to the officer as well. Do not use the word, "Nyquil" ..ever!

Point three - Next Stop.. the Station House

3.1. The officer may then instruct you to get into his or her police car to go down to the station house. This is not the time to get upset.  Do so without question or comment.

3.2. At the station-house you will be booked and then asked if you want to take a station-house breath test. If this is any time but your fourth or greater offense for a drunk driving, do so.  Now is the time to ask to call your attorney.  You have, by usual policy, 59 minutes from the time you are brought into the station-house to take the first two tests.  Use this time by calling your attorney, if you wish, going into a closed room, if possible, and do aerobics, pace or some exercise to more quickly oxidize any alcohol still in your system.  One thing to remember is not to “hyperventilate” or breathe abnormally fast.  When you finally take the test listen carefully to the breathalyzer operator’s instructions. If you cough or get any saliva into the machine, the test is “contaminated” and it must be done over.  If you choose to take the breath test, always take two tests.  When it is over politely request your scores.  If your results are higher than .07%, you may spend the night in jail and an interim bond may, depending on the day of the week and/or department, be set and posted. 

READ THE FOLLOWING VERY CAREFULLY:

3.3  The officer, under the implied consent law, has to make a choice.. he or she only gets to choose one:  That you take a breath test, a blood test or a urine test.  99% of the time, unless marijuana is smelled or the certified breath test operator is not there, a breath test will be the choice. 

Once you comply with the officer’s choice of test, you then request your own test.  Make it a blood test.  Blood is considered more reliable than breath.. it’s done by a doctor at a hospital. The police at the station house can not say that you do not have insurance, that the hospital is too far away, or that they don’t have staff to take you.  If they do not comply with your request, after you have complied with their request, their test is suppressed.  Thereafter, when you get to the hospital, you usually will have to wait.  There are gun shot victims, auto trauma emergencies, etc., which will need to go ahead of you and your body does not stop oxidizing ethyl alcohol.  Sometimes the wait is two hours or more, which now is perhaps some three hours from the time that you were driving and usually even longer from the time you drank the alcohol.

Are you or someone you love facing charges related to Michigan's Open Intoxicant Law? Protect your rights and your future. To discuss your legal options with an experienced Michigan criminal defense attorney.

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