Answers to Many of your Frequently Asked Questions

Q. Can I refuse a preliminary breath test when I’m pulled over?

A. Yes, unless you are a commercial driver the penalties that apply for refusing the PBT are relatively minor. Michigan Law provides that refusing a preliminary breath test is a civil infraction that caries a fine but no points.

The same however is not true of the evidentiary breath test, that is, the one you are given at the police station. (The Datamaster test). A conviction for refusing this test is called an implied consent violation and will result in an automatic license suspension. You will also have six points added to your record. (See Michigan License Suspension Laws).

If you are a commercial driver, refusing a preliminary breath test is a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $100.00, and will result in a 24-hour out-of-service order.

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Q. If I’m convicted will my car be immobilized or forfeited?

A. With a first drunk driving conviction you face possible vehicle immobilization for up to 6 months. With a second conviction you face mandatory immobilization for 3 to 6 months, and possible vehicle forfeiture. With a third drunk driving conviction you face mandatory vehicle immobilization for 1 to 3 years; possible vehicle forfeiture and beginning June 2000, registration denial.

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Q. Will I be going to jail?

A. This will depend largely on the crime you are charged with, your prior record and on the policy and discretion of the Judge to whom the case is assigned. In Michigan sentencing on all alcohol related felonies will be controlled by the sentencing guidelines, and you should discuss this with your attorney. Jail time for all other alcohol related offenses (non-felonies) will be discretionary with the Judge, but must be based on statutory guidelines.

For example, in Michigan, first time OWI/OWVI offenders with no priors generally do not go to jail, although jail time is always possible (up to 93 days), and will depend largely on the facts of the case and the particular policy of the Judge who passes sentence. Judges can give jail time even for a first offense.

With a second alcohol related offense in Michigan within 7 years proceeding the offense there is a mandatory 5 days – 1 year in jail, with not less than 48 hours served consecutively (a term of imprisonment under this section may not be suspended). There is the alternative sentence of 30 – 90 days of community service.

On January 3, 2007 Governor Granholm signed into law legislation that removes the 10 year “look back” period for all drunk driving offenses. Under prior law, a third offense would be considered a felony only if it occurred within a prior 10-year time period. With this new amendment a driver arrested for drunk driving with two prior offenses, regardless of their age, will face felony charges.

With a third alcohol related offense in Michigan within the offender’s lifetime, the sentencing guidelines apply and you should discuss with your attorney how these guidelines will effect your likely sentence. The statute however provides for imprisonment for 1 – 5 years with not less than 48 hours served consecutively (a term of imprisonment under this section may not be suspended). There is the alternative sentence of 30 days – 1 year and community service for 60 – 180 days.

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Q. I was never read my rights, will my case be dismissed?

A. In the context of a drunk driving arrest, there are really two sets of rights that should be read to a suspect by the police; the Miranda rights and the chemical test rights. The Miranda rights are the rights that most of us are familiar with, and address your right to speak with an attorney before questioning. A reading of the Miranda rights will include an affirmative statement by the police that what you say can be used against you in Court. In legal terms, the Miranda rights only apply to post-custodial statements that the prosecutor wants to use against you. Thus, if you are placed in custody but not advised of your Miranda rights, then your attorney can make the argument that any statements you made after you were placed in custody (such as the amount of alcohol consumed) cannot be used against you. It would be a rare case for this failure to lead to a dismissal of your case, but with the right attorney arguing the right facts, a dismissal might still be possible.

Chemical test rights are quite different. They are statutory in nature, and arise out of Michigan’s implied consent law. In Michigan, when you drive an automobile, you impliedly consent to take a chemical test of your breath, blood or urine. Thus, after you are arrested, the police officer must read you your chemical test rights, including your right to have your own (independent) chemical test. These rights must be read to you before the officer asks you to take such a chemical test.

As of July 31, 2006 however, the law in Michigan regarding your implied consent rights changed significantly. Prior to this change, a violation of your implied consent rights could lead to a dismissal of your case. However, this remedy was “revisited” by the current Michigan Supreme Court, and in the case of People v. Anstey it was decided that dismissal was not now and never was the appropriate remedy.

In the Anstey opinion the Court ruled that even suppression would not be an appropriate remedy for an implied consent violation. The conclusion of the Court was that if the defense could prove, after an evidentiary hearing that the implied consent law was violated then the jury, not the court, should decide if this was or was not significant. It is now thus the role of the trial judge to instruct the jury that the defendant’s implied consent rights were violated and it is now up to the jury to determine what significance to attach to this fact in deciding the case. In making this determination the jury might consider the denial of the defendant’s right to a reasonable opportunity for an independent chemical test in deciding whether, in light of the non-chemical test evidence, such an independent chemical test might have produced results different from the police-administered chemical test.

The bottom line is this, because of Anstey Michigan drivers no longer really have any implied consent rights and this includes no longer having a right to independent chemical testing.

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Q. Why can’t I just represent myself? What can a lawyer do for me?

A. While in theory you can represent yourself, many courts in Michigan will not allow a plea of guilty to a drunk driving case without the assistance of an attorney. Aside from this, the law pertaining to drunk driving is particularly complex. It is frequently re-written (the last major re-write in Michigan being in 2003, with significant changes in January 2007), and becomes more complicated with each revision. The penalties become more severe as well.

In all drunk driving cases there are a plethora of complicated procedural and evidentiary rules that apply, and well as statutory and sometimes even constitutional questions that need to be answered. There are also sentencing and administrative license issues.

Drunk driving cases are also complicated by the fact that there is usually some form of scientific evidence, requiring a lawyer that not only understands the law but also the science involved in your case. This combined knowledge of science and law will assist your attorney in mounting a zealous defense.

An appropriately qualified attorney will know what to look for, and will know what facts are and are not useful. He/she will do whatever is appropriate and necessary in order to suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine or blood testing equipment, have blood samples independently analyzed, negotiate whenever possible for a lesser charge or reduced sentence, obtain expert witnesses for trial, and contest the administrative license suspension.

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Q. Will it be advantageous for me to plea to the charge of attempted OWI/OWVI?

A. No, in Michigan, an attempt is treated like a completed offense as far as licensing and criminal prosecution purposes are concerned.

Q. What new crimes were created by the recent changes in the Michigan drunk driving law?

A. Some of the crimes newly established in Michigan are:

  • Driving While License Suspended Causing Injury, a 5 year felony;
  • Driving while License Suspended Causing Death, a 15 year felony;
  • Allowing Another Person to Drive While License Suspended Causing Injury, a 2 year felony;
  • Allowing Another Person to Drive While Suspended Causing Death, a 5 year felony;
  • Endangerment: driving while impaired, under the influence or Zero Tolerance, with passengers under age 16, a misdemeanor.
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Q. What’s the best way for me to find a good lawyer to handle my drunk driving case?

A.The following list of factors may prove helpful in making your decision:

Note: Some of the following information is taken from Mr. Barone’s The DUI Book and has been contributed to by co-author and Top DUI attorney William C. Head:

  1. Specialized Membership or Professional Affiliations – This is a good starting point to consider an attorney’s “involvement” and “commitment” to the field of DUI defense. What specialized professional membership standing does he or she maintain? Although these memberships are often only a matter of paying certain periodic fees and being admitted as an attorney in some state, affiliation may be indicative of the attorney’s dedication to the field of DUI defense. Also, within certain organizations, lower levels of membership are more a matter of paying the fee, while the top attorneys are often found in special “sustaining member” or similar “special status” categories.
  2. Advanced Training – After finding that your attorney fits one of these designations, search further within the Internet profiles of the attorneys you are considering to confirm that he or she is a specialist in “drunk driving defense”. The most highly trained D.U.I. lawyers have attended several of the following specialized courses:
    • NHTSA Standardized Field Sobriety Test (Student or “Practitioner” Course) – This is a 20 to 24 hour course that teaches the attorney how field tests are SUPPOSED to be done, so that errors can be discovered and used to impeach the officer’s testimony in court. Most DUI Task Force officers have taken this course, at a minimum.
    • NHTSA Standardized Field Sobriety Test (Instructor Course) – This is the NEXT level of training for serious D.W.I. defense attorneys. This training consists of 32 to 40 hours, and teaches the defense lawyer what the INSTRUCTOR teaches the police office students within his/her classes. This course has extensive written and video/DVD materials, and requires each person attending to practice instructing the course.
    • Breath Instrument Training Courses – There are several of these available, with only one “factory” (BAC Datamaster) permitting regular courses for attorneys to attend. All other factories fear allowing criminal defense lawyers to attend the courses and block direct purchases of breath instruments of their breath machines because they fear that the flaws and limitations of the machines will be uncovered and disclosed. The best training is a 32 to 40 hour course that covers the pharmacokinetics of alcohol, basic human physiology in the absorption and elimination of alcohol, the electronic components of the machine, the scientific principles upon which the machines function, shortcomings or limitations in the specificity of the devices, analysis of computer downloads and similar training. A good course requires extensive “hands on” laboratory work where the students are required to set up and connect all parts of the instrument (directly out of the packing box), connect and fill the simulator and run calibration tests, opening the cover of the machines to observe and identify the various parts (i.e., chopper motor, light source, solenoids, RFI detectors, etc.). This training meets of exceeds the training that most state “supervisors” receive. The National Safety Council set standards for breath instrument training in the late 1980s, and these standards are still our best standards today.
    • Seminar Speaker – The top attorneys in each state are asked to speak for DUI-DWI-OUI-OWI seminars in their state and others. Being a regular invited speaker for several consecutive years is generally a great indicator of “quality” of the attorney. Be sure to distinguish between “invited” speaking engagements versus self-promoting seminars. Ask about this “indicator” from any D.U.I / D.W.I. attorney that you are considering hiring.
    • Continuing Education at the Top Seminars – The best professionals always keep their knowledge on the cutting edge by attending many of the seminars that are offered during the year.
  3. Community and Courthouse Reputation – Checking the attorney’s COURTHOUSE reputation is the most direct and accurate litmus test of the GREAT drunk driving defense attorneys. Go to the courthouse in the county in which you were arrested, not necessarily the county in which you live. Very politely, talk with a person from the clerk of court’s office, a bailiff, a deputy who is assigned to that courthouse or to a court reporter who is in court. Ask WHICH one of the lawyers you are considering would he or she hire if they were facing a DUI prosecution and HAD TO TAKE THEIR BEST SHOT AT WINNING. Another good source for a referral is law enforcement officers who regularly face these lawyers in court, assuming they will tell you their honest opinion. Be sure to give them any names you might already have in mind, because they may be hesitant to “recommend” or suggest any one attorney or law firm. After you receive the name or names from court personnel, check the Internet or professional listings to further investigate any possible candidates.
  4. Disciplinary Actions – Has the attorney ever been disciplined by the Board of Professional Responsibility of the State bar of his/her practice location? This is an obvious sign of problems. Also, some people falsely claim to be licensed attorneys, so be careful. The state Bar is also the place to check that the attorney is licensed and in good standing. Call your state Bar to see if your lawyer is in “good standing”.
  5. Fees and Fee Structure – How does the attorney set his or her fees? Most drunken driving lawyers work on a flat fee basis, though in some matters, hourly billing or staged billing (triggered by the progress of the case through court) may be done. Criminal matters cannot be handled on a “contingency” basis, due to Bar rules prohibiting this practice. Highly experienced attorneys often charge much higher fees than younger, less experienced lawyers. Often, these high fees are derived from market-driven “supply and demand” pressures, but more likely are a natural function of the free enterprise system. Additionally, a lawyer who fights each case cannot take the volume of cases handled by a “pleader” because trials and contested cases typically require 20 times as much legal time (or more) as handling a guilty plea. Thus, a GOOD trial lawyer typically will limit his or her caseload in order to do an excellent job for each client thoroughly and meticulously. If an attorney prices himself or herself much higher than MOST other DUI lawyers in the area, then do not hesitate to ask why. Don’t be accusatory—just ask what distinguishes this lawyer from the other candidates you are considering who charge less. Conversely, a low fee quote usually means that you will get exactly what you paid for. One friend from Louisiana, Glynn Delatte, ends each e-mail with this maxim: “Good lawyers aren’t cheap, and cheap lawyers aren’t good.” Seriously, the lawyer who quotes a “low ball” fee may not have any idea how much work is really involved in properly handling the case, or this attorney just may be desperate for money. More likely, he or she is planning to do very little work and later enter a guilty plea for your case unless the State’s case just falls apart and cannot be prosecuted. Trial for such “pleader” attorneys is out of the question. The lawyer who quotes a low fee may also be able to price the services this way because the work is being pushed down to the level of a legal assistant or very junior associate. The great DUI lawyers typically charge more, and always do the critical legal work (pre-trial motions and trials) themselves. Comparison shopping may serve a valuable purpose, but if you are looking for the attorney who can BEST handle your DUI successfully, the “pool” of super lawyers is often very small in every community. In smaller cities, you may need to go to a suburban or larger metro area attorney to find a quality fighter. However, for many persons facing the extreme penalties of a DUI-DWI conviction, price is secondary to results.
  6. Client references – A strong reference from a friend or colleague who has used the potential DUI defender is often the best indicator of whether a lawyer is worthy of hiring. Be sure, however, that the friend or colleague has seen the attorney’s skill in court versus merely winning by default or pleading guilty for the friend. Often, attorneys in your “market area’” who do NOT handle criminal cases will know the names of several top DUI attorneys. Interview several, to see where you are the most comfortable.
  7. Focus of practice – Most truly great DUI attorneys either restrict their cases to drunk driving (and drugged driving) or stay entirely within the field of criminal law. Some of these attorneys work within law firms that handle other matters, but the DUI specialist does nothing but drunk driving litigation. If the attorney that you are considering spends less than 80% of his or her legal time on criminal law, look further for an attorney. Consider limiting your search for an attorney to a criminal defense lawyer with a strong background or emphasis in DUI/DWI defense. Watch out for firms that sign you up with “any available” lawyers in the firm versus the top dog in the firm. If you pay premium dollars, this should be the lawyer handling your DUI trial and (generally) the DUI pre-trial motions. Other appearances can be handled by other attorneys who assist the DUI specialist, or possibly even “waived” (pre-filed and no appearance in court on the court date necessary).
  8. Drunk Driving Specialists – Nationally, only a few attorneys work 100% within the DUI field. However, some are primarily “pleaders” who are not TRIAL SPECIALISTS. The lawyer who call himself or herself “DUI attorney”, yet has not tried any cases (or only a couple) in the past 12 months are either pleading guilty a great deal or not handling very many cases. Ask questions about why no trials have been conducted. Even though I limit the cases I accept to contested DUI cases, about 65% to 70% of all the drinking and driving cases I take are resolved by a reduced plea including a non-DUI disposition such as reckless or careless driving. This may mean no loss of driving privileges, no DUI on the criminal record of my client, and a very “favorable” outcome for the person. Plus, the client does not have to risk trial and possible harsher punishment after trial.
  9. Years in Practice – There is no substitute for experience. This rule is true in both warfare and in criminal trial practice. The longer one is involved in an active trial practice, the better one’s litigation instincts generally become. But, the opposite can be true as well. Some lawyers who have been practicing for years may become lazy about staying up to date on the latest legal changes and trial strategies. Missing a key, late-breaking appellate decision can allow a high breath or blood test into evidence when it SHOULD be excluded based on some new legal attack. Some of the worst lawyers practicing DUI law in this country are the ones who have been around the longest and have quit following current case law or stopped learning the newest and most advanced techniques for winning. So, look at the candidates’ RECENT advanced DUI-DWI-OWI-DUII-OUI law training and seminar attendance record.
  10. Caseload – Is your lawyer taking on so much work that there is no way cases can properly be handled? Too many lawyers don’t know when to draw the line and either say no to taking on additional work or to make the decision to take on more attorneys and staff. A trial attorney may limit his or her caseload to between 40 and 100 cases per year, depending on several factors.
  11. Use of Technology – Technology has revolutionized the practice of DUI-DWI law probably as much as any other area in the legal profession. Does your attorney not only USE e-mail, but encourage its utilization by you? Does the attorney have the latest legal research and case management software? Does the attorney provide electronic newsletters and e-mail alerts to inform clients of breaking news about DUI and criminal law matters? Does the firm have an extranet (or a quick response e-mail plan) that allows you to log in to a private and secure web site to see what is happening on your case? Does the lawyer participate in state or national list servers or blogs? Lawyers who master technology deliver legal services with better quality and can often leverage technology to deliver legal services less expensively. Additionally, miscues such as missing a court date will typically be minimized by utilizing case management software.
  12. Communication – The number one complaint against lawyers in this country is not poor work quality. It is failing to communicate with their clients. You are paying a lot of money to hire a lawyer and it is your right to expect to be kept informed of developments and have your calls and e-mails returned in a timely manner. Please note that this does NOT mean that the client and attorney’s firm communicate daily. Busy trial attorneys cannot do that. There is such a thing as anxiety or excessive inquiries on the part of a few clients. Calling your lawyer every day to find out what is happening on your case is not “communication.” It is a sign of extreme anxiety that may dictate a mental health evaluation and treatment for the stress that these difficult cases may cause.
  13. Educational Background – While many fine lawyers have come out of mediocre or unaccredited law schools and many lousy lawyers come out of the Ivy League law schools, where a lawyer went to law school can still be an indicator of a person’s ability to regularly achieve trial success. Most of America’s top law firms acknowledge that the best law schools are “ABA-approved.” This means that a branch of the American Bar Association has investigated the law school thoroughly for quality on dozens of “measuring sticks”.
  14. Publications – Lawyers who write frequently about their area of law practice tend to keep themselves better informed about their area of specialty. The ability to get published in legal magazines or DUI trade journals is a good barometer of the lawyer’s expertise. Writing the “book” on DUI law in the state where you were arrested is generally a great indicator or an advanced level of knowledge and expertise.
  15. Promotional Materials – Pay attention to a law firm’s client information package, marketing, Internet and promotional materials. Are they professional and polished or do they give the appearance of being “fly-by-night”? How the firm and its staff presents itself to its clients and potential clients may be an indicator of how the firm will present itself – and, consequently, you – in court.
  16. Conflicts of Interest – Some DUI defense lawyers may also act as part-time prosecutors in one or more inferior (small courts of limited jurisdiction). Some may even act as a part-time judge in an inferior court. An attorney cannot act as a defense attorney in the same court, however. These lawyers typically will screen any potential “conflicts” and never see any potential clients with cases pending in their courts. Usually, such conflicts are not a problem. But be careful to pay attention to this fact if the lawyer does not immediately “step out” of discussing ANY ASPECT of a case pending in his or her “court.”
  17. Sub-specialization within the DUI Field – A number of “drunk driving defense lawyers” focus on particular types of matters within the DUI-DWI arena. For example, some lawyers only handle administrative license suspension or administrative license revocation matters. They never go to DUI criminal trials or pre-trial motions in criminal cases. Other criminal attorneys may only handle appeals of criminal law cases, including DUI-DWI appeals.
  18. Personality Compatibility – Your interaction with your DUI-DWI lawyer in evaluating compatibility with your goals should be more than just an analysis of the lawyer’s experience and competency. At the end of the day, a lawyer’s “bedside manner” can mean a lot to how the overall relationship goes. Some clients are especially “on edge” and need more nurturing, due to the stress that a DUI puts them under. Others merely want the attorney they hire to be a gladiator and go slay the dragon for them, and need no nurturing at all. Find a lawyer who really cares about winning, and be realistic about your level of need in being “nurtured” (or not being nurtured) by the attorney. Since 90% or more of your communications will be with the attorney’s staff, their supportiveness and attitude is also very important. Difficult or uncaring staff members are not being “team players” for your cause. However, you must not constantly call the staff to ask for an update, when the progress of the case may be slow and somewhat plodding.
  19. Promising too much – There are actually DUI lawyers out there who swear they have never lost a case even after a lengthy trial career. Be skeptical about lawyers who promise success. An old wag among experienced DUI trial lawyers is “Show me a DUI lawyer who has never lost a DUI case, and I’ll show you a lawyer who has never TRIED DUI cases.” A lawyer who honestly presents the real risks and perils of trial without trying to talk you into an ill-advised plea of guilty is what you seek. Likewise, be very wary of attorneys who claim to have special influence or “standing” with the judge or prosecutor in your case. An attorney who spends more time “name-dropping” impressive political or judicial names than explaining the favorable aspects of your case should be avoided like the plague! Also beware of lawyers who speak too negatively about his or her competitors. If the lawyer is worthy, he or she can stand on his or her own track record and reputation rather than tearing down the record of qualified competitors. When you have your quest narrowed down to 2 or 3 potential attorneys who all seem to have the right credentials, go back to Number 2 above, and go to the COURTHOUSE for “the final answer”.
  20. Engagement Letters – Read the fine print in your engagement letters or “fee agreements.” Some lawyers load agreements down with so much “legalese” and one-sided provisions that such agreements should give you pause. Consider using a lawyer who provides an agreement that is written in plain English that appears to be even-handed. Also make certain that you know what costs (beyond the fees) are your costs to pay and whether any appeals or potential re-trials (after a mistrial or “hung” jury) require additional fees.
  21. Ethics – Run as fast as you can from lawyers that tell you it is okay to lie or otherwise act dishonestly in your case. Aside from the obvious questions of ethics, professionalism and morality, you are risking jail time for any complicity in such shenanigans. The attorney is risking disbarment, jail time and potential civil litigation by suggesting this. RUN AWAY! It is not worth such aggravation and potential increased legal problems.
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Q. What are the possible defenses to the OWI/OWVI case?

A. It is not possible to point to one defense or group of defenses for every case. Depending on the facts of your case, the following defenses may or may not apply:

Improper Stop – If it can be shown that the police did not have a proper cause to stop your vehicle, then the evidence collected after the stop might be thrown out. The legal standard is that the stop must be justified by probable cause or an articulable suspicion that criminal activity was afoot. Of course, notice of a violation of the traffic code, such as speeding or weaving, will provide a sufficient basis for the stop as well.

Improper Arrest – it will be important for your attorney to determine if your arrest was statutorily and constitutionally proper. This is because an improper arrest can sometimes lead to the Court throwing out the evidence, and ultimately to the dismissal of charges.

Improper Police Procedures Relative to the Chemical Testing – The taking of breath and blood samples is governed by statues and administrative rules, as is the calibration and maintenance of the testing instruments. If it can be shown that the police did not follow these statutes and administrative rules then the test results can sometimes be thrown out. While this is unlikely to lead to a dismissal, it does make the case a better candidate for victory at trial.

Improper Police Procedures Relative to the Field Sobriety Tests – While there are no standardized rules applicable to the taking of field sobriety tests, there are police training manuals and the like that can be used in cross-examination to show that a police officer did not administer the field sobriety test(s) properly. There are also scientific studies that show how inaccurate the field sobriety tests really are. While these facts and circumstances will almost certainly not lead to a dismissal, they should help to persuade the jury to view things more favorably for the defendant, and hopefully result in a not-guilty verdict.

Defects in the Charging Documents – Any irregularities in the charging documents and police reports can sometimes be used to call the police officer’s credibility into question. The argument to the jury is if the police officer is mistaken as to the direction your car was traveling then perhaps he/she is mistaken as to other facts as well. This is critical since the prosecutor’s case usually turns on the testimony of the arresting officer(s).

Suppression of Incriminating Statements – While the courts seem less and less inclined to suppress incriminating statements based on a police officer’s failure to read a defendant his/her rights, “non-Mirandized” statements are still sometimes suppressed. If you made admissions regarding how much you had been drinking then ask your attorney to determine if Miranda applies and if these statements can be suppressed.

Increasing Blood Alcohol – In an unlawful blood alcohol case (UBAL) the prosecutor must show that your blood alcohol was over the legal limit at the time you were driving. Thus, if the chemical testing (breath/blood/urine) in your case was not performed until long after the actual arrest (and presumably the act of driving) then you can argue to the jury that these chemical test results should be given less weight. Expert testimony is usual helpful to drive this point home to the jury. Again, with the proper underlying facts this might help persuade the jury to view things more favorably for the defendant, and hopefully result in a not-guilty verdict.

Inaccurate Chemical Test Instruments – The machines used by the police to test a person’s breath, blood or urine are all subject to inherent inaccuracies. It is simply not possible for any testing instrument to be 100% accurate all the time. Blood testing is probably more accurate overall then is breath testing, which is again probably more accurate than urine testing. Still, simply because you tested over the limit this does not mean that you have no defense. Talk to your attorney about how the specific facts of your case may have cause an inaccurate test result. Keep in mind also that it is usually necessary to retain an expert to help educate the jury regarding these inaccuracies.

This list is not exhaustive, and there may be different or additional defense specific to your case. The point is that you should not simply walk into court and plead guilty without first having your case evaluated by competent counsel. This is because almost all cases can be defended in some manner. This is not to say that all defenses lead to a dismissal or even a substantial reduction in the charges, nor does it mean that it makes sense to vigorously fight every case. However, you should have every opportunity to make fully informed decisions about all of these things, and this decision making process will most likely require the advice of legal counsel.

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Q. What should I expect to pay to retain a good lawyer.

A. There is a wide variation in the fees charged for drunk driving cases, and these depend somewhat on the reputation and experience of the lawyer but also vary by geographic location. Most lawyers charge a flat fee for this service, and the overall fee charged is most often based on the amount of time a lawyer expects to spend defending your case. More complicated cases obviously require more time, and because of this as a general rule the better lawyers accept fewer clients. This allows him/her to spend more hours on each client’s case.

For a misdemeanor drunk driving (first and second offenses) a new attorney or a general practitioner in a small community might charge from between $300 and $500 while a specialist with a national reputation may charge up to $25,000 or more, depending on the specific facts of the case. If the case is a felony drunk driving (third offense in the person’s lifetime) then fees may range from about $2,500 to about $45,000.00 and for a drunk driving causing death or serious injury, the fees may be as high as $75,000 to $100,000 and perhaps even higher depending on the circumstances.

Other important factors in determining a proper fee are as follows:

  • The nature of the offense itself. For example, is your case a first or second offense, or is it one of the enumerated drunk driving felonies? This preliminary determination will partially dictate how much time will be required to properly defend it.
  • Are there prior offenses that are being used for enhancement purposes? Attacking prior offenses requires the lawyer to spend more time on your case. This is especially true because the “look-back” period for felonies is now the lifetime of the offender.
  • Does the fee include trial and/or evidentiary hearings, and does the fee include the lawyer’s appearance at any administrative hearings, such as the Driver License Appeal Division for an implied consent hearing? This should be clearly indicated in the fee agreement.
  • Does the fee cover any appeals, such as an appeal to the Circuit Court for the restoration of driving privileges after an unsuccessful implied consent hearing?

Regardless of the fee quoted it is important to both the lawyer and the client for there to be a written fee agreement, and for the client to understand exactly how he/she is being charged, as well as what the total fee will be in all circumstances.

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Q. What are the sentencing guidelines, and do they apply in my case?

A. The sentencing guidelines are just that, guidelines that the judge must follow in determining the appropriate sentence. The goal of the guidelines is to produce relatively consistent sentences for all offenders based on his/her prior record and the specific facts of his/her offense. If you are charged with one of the drunk driving felony offenses, such as OWI/OWVI 3rd, Driving while License Suspended Causing Death, a 15 year felony, etc., then the guidelines will apply in your case. Ask your attorney about this when you first meet with him/her.

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Q. My ticket says I’m charged with a first offense but I have another drunk driving conviction less than 7 years ago. I haven’t gone to Court yet. How can I tell if I’m going to be charged as a second offender, and under these circumstances, will I be able to keep my license? Will I be going to jail?

A. The way the law works now (since 10/99) is that the prosecutor will simply count prior alcohol related convictions, so keep in mind that doesn’t matter if the prior is an OWI, OWVI, “zero tolerance” or any other alcohol related driving charge. If you have a prior within 7 years, then your current charge is potentially a second offense. Unless you were given a ticket that says “OWI 2nd”, it will be up to the prosecutor to determine whether or not to enhance the charge to a second offense.

Second offenses are most often started with a complaint and warrant, so if a ticket was issued that usually (but not always) means it’s being charged as a first offense, and of course, if your ticket says simply OWI/OWVI or otherwise does not denote “second offense”, this also would suggest that you are being charged as a first offender. However, also keep in mind that the prosecutor can literally seek to amend or change (enhance) the charge to a second offense at any time before you are sentenced, and many judges will allow late amendments, so it’s probably too early to tell what will happen with the charge. Once you get to court, and your lawyer looks at the document called a “complaint”, then you will have a better understanding of the exact charge you are facing.

The above discussion applies primarily to the punitive sanctions, i.e., the first/second offense difference in what the Court can and cannot consider in sentencing you. It gets kind of complicated, but suffice to say that for a second offense there is a minimum jail sentence of 5 days and/or 30-90 days community service, and up to a maximum of 1 year in jail. (Now most Courts pretty much give some amount of jail time for second offenses). Because the Judge will know you have a prior at the time you are sentenced, even if you are charged or plead guilty to a first offense, the Judge will often times still give you a sentence consistent with a second offense, which he/she can do because the first offense carries a possible sentence of up to 93 days in jail. Thus, even though there is a mandatory sentence for a second, it’s still permissive for a first offense. Bottom line is it won’t make all that much difference what you’re charged with, although it’s still probably better that you be charged with a first offense, because it at least gives your attorney a better argument to avoid jail time, which is something you’d need to discuss specifically with the attorney you retain.

Moving to the driver license sanctions, this is pretty straight forward. The Secretary of State simply counts prior alcohol convictions within the appropriate period, then applies the applicable sanctions. Consequently, it doesn’t matter what you’re charged with or plead guilty too, if you have two alcohol driving convictions within 7 years, if you’re convicted your license is gone for one year, with no driving whatever during the period of revocation.

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Q. With a repeat offense (second or third alcohol driving conviction), is there any way for me to get a restricted driver license? I have court ordered visitation with my kids, will I be able to drive to see them?

A. Now that the Secretary of State has the sole jurisdiction over driver license sanctions on drunk driving cases, with a second offense within 7 years your license will be revoked for 1 year, and if you have two or more within 10 years, you will have your license revoked for 5 years.

Bear in mind that this look-back period is different than the look-back for criminal enhancement. On January 3, 2007 Governor Granholm signed into law legislation that removes the 10 year “look back” period for all drunk driving offenses. Under prior law, a third offense would be considered a felony only if it occurred within a prior 10-year time period. With this new amendment a driver arrested for drunk driving with two prior offenses, regardless of their age, will face felony charges.

Sorry for the bad news, but during this period of revocation, there is literally no way to “get in front of” the Secretary of State to request restricted driving privileges. The legal term is “due process”, and in the context of a drunk driving charge you have no due process rights relative to your driver license. Consequently, there’s really no way to even request a restricted driver license during the period of revocation. So, it doesn’t matter what your standing in the community is, what special needs you may have, or anything else, the Secretary of State simply counts priors and imposes the appropriate license revocations.

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Q. I’m charged with a second offense OWI/OWVI, but I think my prior offense is more than 7 years old. What should my lawyer do to verify this enhanced charge?

A. When counting prior convictions, the Secretary of State counts from date of prior conviction to date of current conviction. To understand this, you need to know the legal definition of “conviction”. A conviction occurs when you either plead guilty or are found guilty by a judge or jury, and this is the conviction date. This date may or may not actually be reflected on your driving record, and if it’s a close call, the thing to do is to have your attorney order a copy of the judgment of conviction from the court where you were previously convicted. This is the document that would be prepared by the court and will reflect the actual conviction date. If there’s still some confusion, it is sometimes necessary to order a copy of the transcript of the plea (or trial), as this would be the most accurate and persuasive piece of evidence relative to the date of conviction. Again, keep in mind that in Michigan the conviction date is not the date of sentencing, but the usually earlier date of the verdict or plea.

Also, since the Secretary of State counts from conviction to conviction, it doesn’t matter when you are arrested on the second or subsequent offense. If you can wait to plea guilty, or delay trial long enough that you can get past your 7 year anniversary date, then you can avoid the imposition of the more harsh license sanction by the Secretary of State, and in some circumstances, may even avoid losing your license all together. In this situation you will need a knowledgeable lawyer willing to do the work required to protect your interests.

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Q. How long will a drunk driving conviction remain on my record?

A. All alcohol related traffic offenses are crimes, and are classified as either misdemeanors or felonies. Thus a drunk driving conviction will remain on your record for life. An important distinction however is regarding the treatment of this type of conviction by your automobile insurance company. Most insurance companies will stop considering drunk driving convictions in accessing auto insurance rates after a period of years. Because there’s no hard and fast rule on this, it’s best to check with your insurance company to learn what their specific policy is in for drunk driving offenses.

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Q. Can I have my drunk driving conviction expunged (set aside)?

A. No. The statute governing expungement in Michigan specifically precludes a person from even seeking to have a conviction for a “traffic offense” (including drunk driving) set-aside. The statute also precludes a Judge from setting aside such a conviction.

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Q. I pulled over to ‘sleep it off’, but still got charged with drunk driving. I wasn’t driving when the officer arrived. Can I actually be convicted?

A. Possibly yes. There are really two separate questions here; were you operating, and was the arrest valid (lawful)?

To “operate” a motor vehicle, a person must be in “actual physical control” over the vehicle. This means that if you are behind the wheel and the car is running, you are probably operating the vehicle. However, this determination will depend on the specific facts of your case because the Michigan Courts have indicated that “once a person using a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of harm, this person continues operating the vehicle until it is returned to a position posing no such risk”. Consequently, if your car is running, but does not pose a risk, then your attorney might be able to argue that you were not “operating”.

Keep in mind though that the facts of your case must be carefully scrutinized by your attorney because circumstantial evidence can also be used to prove this element of the crime. What this means is that if the police find you in a motionless car, but there is sufficient circumstantial evidence to show that the car must have been driven by you to that location at some point earlier in time (such as the mere location of the car, tire tracks, warm hood, etc.), then the charge can sometimes be sustained using this evidence of prior operation.

Cases like this must also be scrutinized by your attorney to determine the legality of the arrest. This is because the offense (if a misdemeanor) was committed outside the police officer’s presence, and this sometimes makes a warrantless arrest illegal. But, it’s not really that simple. This is because on the one hand there is a statute that indicates that a warrantless arrest is valid if the police officer has “reasonable cause” to believe that a driver was operating while impaired or intoxicated and was involved in an accident or where any part of a parked vehicle intrudes into a roadway.

On the other hand there is a more general statute that says that a police officer may make a warrantless arrest if he/she has “reasonable cause” to believe that a misdemeanor punishable by imprisonment for more than 92 days or a felony has been committed (all drunk driving cases qualify) and reasonable cause to believe that the person committed it. Either way, the facts must be scrutinized to determine if the office had such “reasonable cause” to make the arrest.

Sometimes a case with an issue of “operation” must be taken to trial so that the jury can make the final determination of these fact questions. The jury might not want to convict where the driver did the “right thing” and tried to sleep it off.

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