OWI / DUI
Michigan DUI lawyer Paul J. Tafelski understands how terrifying it can be to be stopped on the suspicion of driving under the influence, or DUI, in Michigan. Even if you do not think you were driving under the influence of alcohol or drugs, the process can be intimidating. Understanding what your rights are when you are stopped will not only make you more comfortable and secure during the stop, but could also go a long way toward assisting your defense if you are ultimately charged with Drunk driving Defense.What is a DUI?
What is a DUI under Michigan law? Under MCL 257.625, operating a motor vehicle while intoxicated is defined as any of the following situations:
- Person is under the influence of alcohol, a controlled substance, another intoxicating substance, or a combination of those substances;
- Person has a blood alcohol content of 0.08 grams or more; or
- Person has a blood alcohol content of 0.17 grams or more.
Under the law, it is illegal for the owner of a motor vehicle, or the person in charge of a motor vehicle, to “authorize or knowingly permit the vehicle to be operated upon a highway or other place open to the public or generally accessible to motor vehicles” if the driver is under the influence of alcohol or another illegal substance. This includes a situation in which the person does not clearly have a blood alcohol concentration at or above the legal limit, but rather the “person’s ability to operate the motor vehicle is visibly impaired” due to alcohol consumption or the consumption of another substance.What is an OWI?
The question of penalties for an OWI conviction depends in part on the person’s blood alcohol content at the time of the arrest.
Michigan has what are known as "High BAC Offenses", which are OWI offenses that occur when the individual has a blood alcohol content of 0.17 grams or more. When the person’s blood alcohol content is below 0.17 grams (but still at 0.08 grams or higher), then that individual does not typically face charges for a High BAC Offense but still can be convicted of an OWI.
It is also important to remember that OWIs can involve driving under the influence of illegal drugs or other substances. As such, you can be convicted of an OWI without having a specific blood alcohol content.Your Right to Remain Silent
We have all heard about the right to remain silent. Although you do have a constitutional right to remain silent, you should use that right with discretion. If a law enforcement officer stops you, it is usually in your best interest to give the officer basic identifying information such as your name and address. You may also be asked to provide identification such as your driver’s license. Although providing basic information to the officer is typically the best course of action, there is no legal requirement that calls for you to respond to additional questions.
On the contrary, you have a constitutional right to decline to answer questions, particularly if the answers may incriminate you. Offering any information that leads to the conclusion that you have been drinking alcohol is not in your best interest. For example, if asked whether you have been drinking, you may politely decline to answer. The same goes for any other questions that you do not wish to answer, such as where you were coming from or where you were headed.Your Rights Regarding Roadside Testing
Typically, when a law enforcement officer stops you and suspects that you have been driving under the influence, you will be asked to submit to a preliminary breath test (PBT). You may also be asked to perform standard field sobriety tests that are designed to gauge whether you are intoxicated. You have the right to refuse either or both. If you refuse the PBT, you may be charged with a civil infraction and fined up to $150. If you are under the age of 21, you will likely be charged with the civil infraction and two points will be added to your driving record. Declining to submit to the field sobriety tests is fully within your rights and will not lead to additional charges, fines or points. While you have the right to refuse both the PBT and the field sobriety tests, you should do so in a calm and respectful manner.Miranda Warnings
Named after the case that made them mandatory, your Miranda warnings are what most people hear police officers on television reading to people they arrest. Your Miranda warnings include things such as your right to remain silent, a warning that anything you say can be used against you, your right to have a lawyer present, your right to request a lawyer at any point in the investigation and your right to stop questioning at any time. These warnings are required only once the law enforcement officer has decided to arrest you. This means that during the preliminary stage of the investigation the warnings are not required. In addition, if an officer fails to provide you with your Miranda rights, that will impact your case only if you were questioned while in custody and you made incriminating statements as a result of the questioning.Your Right to Know Your Charges
You have a right to be told what you are being charged with at the time the officer places you under arrest. The officer should tell you the charges at the time you are read your Miranda rights. You also have a right to a copy of the charges filed against you. The charging information may be provided when you arrive at the jail, upon your release, or at your first court date.Your Rights Relating to a Search
The police have a right to search you and the immediate area under your control when you are actually arrested. If you were driving a vehicle when the arrest took place, the police can also conduct a basic search of the vehicle without first obtaining a warrant. Your vehicle may also be impounded if you are arrested, and the police may conduct what is called an “inventory search.” Items of value must be listed and returned to you when the car is released back to you. A more thorough search of your vehicle may be conducted only when the police believe they have reasonable grounds to believe contraband will be found in the vehicle. The police officer may ask you to sign a consent-to-search form for your vehicle. Do not sign this. You have a right to refuse to give consent to any search.Your Right to Have an Attorney Present
This may be your most important right of all. You have the right to consult with an attorney before answering any questions or cooperating with an investigation. If you do decide to answer questions or cooperate, you have the right to have your attorney present at all times during the questioning and at all phases of the investigation. If you initially decline to seek the advice of an attorney and agree to answer questions, but later change your mind, you have the right to stop answering questions and ask for an attorney. Once you ask for an attorney, regardless of when that happens, questioning must stop.Common Defenses for a Michigan DUI Charge
When you are facing DUI charges in Michigan, it is extremely important to build a strong defense for your case. We often think of drunk driving charges as they are known in other states—as the offense of driving under the influence (DUI) of drugs or alcohol. Michigan law makes clear that driving while intoxicated is unlawful in the state, the statute uses different language to describe this offense. Rather than calling it a DUI, Michigan law defines this offense as “operating while intoxicated” or an OWI (MCL 257.625). In general, DUI and OWI are interchangeable terms.
When you are facing OWI charges, what do you need to prove in order to beat them? There are different ways in which a person can face OWI-related charges in Michigan, but it is useful to understand some of the most common defenses to drunk driving charges. It is unlawful to operate a vehicle in Michigan with a blood alcohol concentration of 0.08% or higher.Higher Penalties for High BAC Offenses
When a driver has a BAC of 0.17 or higher, this is known in Michigan as a High BAC offense. High BAC offenses are more serious than DUI charges for a BAC of 0.08 or higher, but less than 0.17. A High BAC offense is a misdemeanor, and upon conviction it has the following penalties, even if it is a first offense:
- Up to 180 days in jail;
- Fine of between $200 and $700;
- Up to 360 hours community service;
- License suspension for one year.
Typically, the following are the penalties for a first-time OWI conviction when the driver has a BAC of 0.08 or higher but less than 0.17, or when the driver is under the influence of alcohol or another controlled substance:
- Up to 93 days in jail;
- Fine of up to $500;
- Up to 360 hours community service; and
- License suspension for one year.
Subsequent offenses carry higher penalties. In other words, if you are convicted of an OWI/DUI a second or third time, the penalties will be more severe.Defenses to OWI Charges in Michigan
- There was not probable cause to arrest you: After you are legally stopped the officer must investigate their suspicion of OWI and they need to demonstrate through the evidence obtained by field sobriety tests or preliminary breath tests that there is probable cause to arrest you.In cases where clients perform well on field sobriety tests and refuse the PBT we can challenge the probable cause to arrest.Without it, the case must be dismissed.
- Breathalyzer (or other test) was performed improperly: Sometimes police in Michigan are not trained properly to use breathalyzers, known as the Datamaster machine, to test a driver’s BAC. You may be able to argue that the Datamaster test result was unreliable for this reason.
- Blood test sample was mishandled: If you were required to submit to a blood test in order to assess your BAC, it is possible that the blood test results were not obtained properly. For example, the blood might not have been transported or stored properly before it was tested, or it might have been contaminated with another sample or substance.
- Law enforcement officer did not have a lawful reason to stop you: Sometimes law enforcement officials do not have a legal basis for stopping a driver. A Michigan criminal defense lawyer can examine the facts of your case to determine whether you can argue that you were stopped illegally. Law enforcement officers must have reasonable suspicion to make a stop and probable cause to make an arrest.If the stop was illegal then the entire case must be dismissed.
Are you facing DUI/OWI charges in Michigan? Whether you are a first-time offender or have previous convictions, an experienced Michigan OWI defense attorney can help to build a strong defense in your case.
Contact Michigan Defense Law to learn more about how we can assist with your defense.