Michigan Drunk Driving
Frequently Asked Questions

Q. Can I refuse a preliminary breath test when Iím 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.

Q. If Iím 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.

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 OUIL 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.

With a third alcohol related offense in Michigan within the prior 10 years 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.

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. If you are not properly advised of your chemical rights, (and offered the reasonable opportunity to have your own test), then you may be able to keep the police conducted test results out of evidence. It should also be noted that some Michigan Courts have also found that the chemical test rights are constitutional in magnitude inasmuch as they address the accusedís right to gather potentially exculpatory evidence in his or her own defense. Consequently, under the appropriate circumstances, a failure to read the chemical test rights might lead to a total dismissal of the drunk driving case.

In any event, both sets of rights should be discussed with your attorney so that you can determine what impact, if any, they might have on your case, and whether or not a violation in your case is sufficient cause to seek a dismissal.

Q. Why canít 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 time in Michigan being October 1999), 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.

Q. Will it be advantageous for me to plea to the charge of attempted OUIL?

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.

Q. Whatís the best way for me to find a good lawyer to handle my drunk driving case?

A. The most reliable way to find a lawyer with a good reputation is to ask other lawyers who practice criminal law for a recommendation. Friends or family might also be a good referral source. Another option is to ask the people at the Court who they might recommend.

When you meet with the attorney, make sure of four things:

(a) He/she has extensive experience in OUIL/UBAL/OWI litigation;

(b) He/she has an excellent understanding of the theory and science behind breath and blood testing (indispensable in the cross-examination of prosecutionís witnesses);

(c) He/she has ample jury trial experience, and will take appropriate cases all the way to trial rather than just "copping out" his clients; and

(d) The financial terms of representation are clear.

Q. What are the possible defenses to the OUIL/UBAL 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 officerís 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 prosecutorís 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 officerís 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 personís 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.

    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 clientís case.

    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 $15,000 or more, depending on the specific facts of the case.

    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.
  • Does the fee include trial and/or evidentiary hearings, and does the fee include the lawyerís appearance at any administrative hearings, such as the Driver License Appeal Division for an implied consent hearing.
  • Does the appeal 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.

    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 OUIL 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.

    Q. My ticket says Iím charged with a first offense but I have another drunk driving conviction less than 7 years ago. I havenít gone to Court yet. How can I tell if Iím 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 OUIL, OWI, "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 "OUIL 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 OUIL 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 itís 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 youíd 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 doesnít matter what youíre charged with or plead guilty too, if you have two alcohol driving convictions within 7 years, if youíre convicted your license is gone for one year, with no driving whatever during the period of revocation.

    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.

    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, thereís really no way to even request a restricted driver license during the period of revocation. So, it doesnít 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.

    Q. Iím charged with a second offense OUIL, 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 itís 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 thereís 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 doesnít matter when you are arrested on the second or subsequent offense. If you can wait to plea guilty, or dely 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.

    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 thereís no hard and fast rule on this, itís best to check with your insurance company to learn what their specific policy is in for drunk driving offenses.

    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.


    Q. I pulled over to "sleep it off", but still got charged with drunk driving. I wasnít 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 officerís presence, and this sometimes makes a warrantless arrest illegal. But, itís 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.