Drunk Driving Arrest, Free Case Evaluation

Michigan DUI Arrest Legal Information

Michigan DUI Site Map













THE STATE OF MICHIGAN


Michigan Drunk DrivingDWI / UBAL / OUIL / OWI / OUINFrequently 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.
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.
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 accused’s 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 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 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.