Articles Posted in Alcohol and Drug Crimes

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Photo+of+woman+arrested+in+need+of+a+DUI+attorney+in+Seattle$2C+WA.[1].jpgThis blog will focus on first offense drunk driving (DUI) cases which our firm handles extensively in all of the district courts in Macomb County, Michigan including the 38th District (Eastpointe), the 39th District (Roseville, Fraser), the 40th District (St. Clair Shores), the 41-A District (Sterling Heights, Shelby Township, Macomb Township, Utica), the 41-B District (Clinton Township, Mt. Clemens, Harrison Township), the 42-1 District (Romeo, Washington Township) and the 42-2 District (New Baltimore and Chesterfield Township).

A life can spin out of control the moment a police officer says, “you are under arrest for drunk driving.” For most of our clients that are charged with drunk driving (OWI or DUI), it will be the first time that they have seen the inside of a jail cell. This experience alone will be traumatic and stressful. Upon being released from jail, the person will be given certain documents which include: ticket, temporary license, bond receipt and data-master printout with breath test result (usually a pink form). A person may need to get his or her vehicle out of impound unless there is a hold on the vehicle because of an accident or subject to forfeiture. A person charged with drunk driving should contact an attorney after taking care of immediate needs such as going home, getting some rest and having something to eat.

Our attorneys are involved with drunk driving cases in Macomb County just about every day. This means that we are either attending a court hearing in one or more district courts, talking to someone on the phone or meeting with a new client at our office. We are often able to make predictions about the outcome of drunk driving cases in Macomb County as well as other jurisdictions where we actively practice including Oakland County, Wayne County and the Grosse Pointe Courts.

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41B%20District%20Court[1].jpgMost drunk driving (DUI or OWI) cases in Macomb County are resolved without trial. The vast majority of first offense drunk driving (DUI or OWI) cases can be negotiated to the lower offense, such as operating while impaired, unless there are policy reasons which prohibit the prosecuting attorney from plea bargaining.

Our attorneys will be able to review the police reports and discuss various options with our clients such as trial and deviation requests for charge reductions. When a client is charged with a high blood alcohol drunk driving for obtaining a chemical test result of .17% or more (High BAC or Super Drunk), is involved in an accident or has a prior record involving substance abuse, there are legal maneauvers which we will explore to get the case under control.

Court Process and Possible Sentence Conditions for First Offense Drunk Driving (DUI or OWI)

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pubs_of_EL.jpgWith fall quickly approaching many students are bracing for their return to college. Many college age students from Macomb County attend MSU. The University in recent years has seen an enhanced police presence both on and off campus. The combination of football Saturdays, a sizable off campus student population, and a large density of bars makes for many arrests every weekend in East Lansing. While for some an offense such as an MIP may seem trivial or the “norm”, it is warned that all students and East Lansing residents charged with MIP’s deal with these charges. Though not immediately apparent, a misdemeanor can have far-reaching repercussions. Having an MIP on one’s record can impact on the following;

– Permanent criminal record;
– Eligibility for student loans;
– Eligibility for home loans;
– Eligibility for auto loans;
– Graduate school admissions;
– Employment applications;
– and professional licensing.

Any graduate student or freshly minted professional will be able to tell you the paramount importance of keeping a clean criminal record. Having convictions on one’s record often puts applicants for schools / employment in the terrible position of having to disclose and explain or risk failing to disclose and getting caught. Avoid these problems in the first place and attack an MIP or minor criminal charge head-on. Record preservation is of vital significance for college students, especially when considering a competitive marketplace for jobs and graduate school seats. Too often students summarily plead guilty to misdemeanor offenses under the mistaken assumption that they are akin to a civil infraction or a parking violation. This is not the case, MIP’s are a criminal offense. Thus it is directed that any student being charged with such an offense engage the services of a lawyer.

What then should MSU students and East Lansing residents being charged with a misdemeanor expect during the course of their case? East Lansing cases are disposed of in the 54-B District Court. The Court is located on Linden street (by the 711 and Grove Parking garage) and is presided over by the Honorable Judges Richard D. Ball (Chief Judge) and David L. Jordon. If being arraigned it is very important to plead not guilty. By doing this the case will be set for a pretrial conference where your attorney may be able to negotiate a deferral, more on that below.

With the assistance of counsel, those charged with MIPs can often get the charges off their criminal record pursuant to MCL 436.1703. Sometimes called a deferral, a delayed sentence, or an “under advisement” the result is that the charges will be dismissed upon compliance of the Court’s probationary terms. With the charges dismissed students can say that they have never been convicted of an MIP, as it will not show up on their public record.

Click to see Part 2 of the “Offenses on Campus” Series regarding disorderly conduct and possession of marijuana…
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According to Wikipedia, on September 10, 1897, George Smith, a London taxi driver, was the first person to be convicted of drunk driving.

DUIL, DUI, OUIL, OUI, OWI, OWVI, OWPD, UBAL: What do they all mean? Whenever we meet with a new client that is charged with drunk driving, we invariably engage in explaining the numerous abbreviations which are commonly used on the streets, in the courts and by lawyers. Whenever the words drunk or intoxicated are used, we are referring to the offense of drunk driving. The offense of impaired driving is a lower offense but still goes on the record as a drinking and driving offense for all licensing and insurance purposes. The penalties for these offenses vary depending upon the circumstances and prior record of the offender. The Michigan Department of State website has more information regarding the offenses and penalties for these offenses.

Drunk Driving Abbreviations Commonly Used In Michigan

DUIL: Driving Under the Influence of Liquor DUI: Driving Under the Influence OUIL: Operating Under the Influence of Liquor OUI: Operating Under the Influence OWI: Operating While Intoxicated (Current Law)
OWVI: Operating While Visibly Impaired (Current Law)
OWPD: Operating With the Presence of Drugs (Current Law)
UBAL: Unlawful Blood Alcohol Content
DRUNK DRIVING: One can be charged with drunk driving if his ability to operate a vehicle is substantially and materially impacted by the consumption of alcohol or drugs. In this scenario, the prosecutor would have to prove that the person charged was intoxicated or had .08% or greater blood alcohol content or the presence of certain drugs. Under prior drunk driving laws in Michigan, a person had to caught “driving” a motor vehicle. The “D” in DUIL or DUI is the abbreviation for driving under old Michigan drunk driving laws. More recent laws were passed which made it unnecessary for the person to be caught driving a motor vehicle. Courts and lawmakers amended the law to only require that the person charged with drunk driving be caught “operating” the vehicle. Thus, a person who is not driving but merely in a parked vehicle with the keys in the ignition while playing the radio can be said to be “operating” a vehicle. The abbreviations were changed to OUIL and OUI with the “O” signifying operation.

IMPAIRED DRIVING: Impaired driving means that your ability to operate a vehicle was visibly impaired. Under prior laws, the abbreviation of DWI was used which meant Driving While Impaired. Under current law, the offense is called Operating While Visibly Impaired or OWVI.

UNLAWFUL BLOOD ALCOHOL CONTENT, OPERATE WITH PRESENCE OF DRUGS: The offenses of OWPD and UBAL are statutory offenses which do not require that the offender is intoxicated but only that the offender has a blood alcohol content of .08% or greater or the presence of certain illegal drugs.
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You should read the series in the Detroit Free which began on July 24, 2011 pertaining to drunk driving laws and sentencing in Michigan especially if you are someone that has a few drinks before operating a motor vehicle in the Metro Detroit area. In Michigan, a conviction for drunk driving can occur if the offender’s blood alcohol content is .08% or greater, regardless of intoxication. The prosecutor is only required to prove that the offender had operated a vehicle with an illegal blood alcohol content. Ignorance of the law is not a defense. In addition, it is not a defense to a drunk driving case that the offender was sober or able to operate his vehicle safely.

I can say the articles are long overdue which warn offenders that jail is a possible consequence in some jurisdictions for a first offense involving drunk driving (DUI). The articles also cover the financial side of drinking and driving which can run up to $10,000.00 after factoring in attorney fees, fines, court costs, financial responsibility fees, substance abuse counseling and motor vehicle insurance.

On July 24, 2011, the Detroit Free Press reported that “Arrest location could determine the outcome for a drunken-driving penalty.” As a criminal defense attorney with representative cases in Macomb and Oakland Counties, I can say that this article touches a nerve with the criminal defense bar. The article fairly depicts Judge Kim Small (48th District Court, Oakland County) as a Judge that will invariably impose at least 2 weeks in jail for a first offender convicted of drinking and driving. In contrast, Judges in Clinton Township (Macomb County) and Clarkston (Oakland County) agree that jail is not always the answer and will use substance abuse counseling extensively when someone is convicted of drinking and driving. In my experience, the imposition of jail is reserved by most Judges for offenders who violate probation or commit repeat offenses. Judge Small is not in this camp.

There is really no way to say if Judge Small is motivated by politics or really believes that she is doing the right thing when she gives a first time offender jail for impaired driving. (See Detroit Free Press article on July 25, 2011, “Oakland County judge among toughest in nation on 1st-time drunken driving offenders.” On the political side, she presides in one of the highest net worth jurisdictions in the United States. Her voters may believe that she is keeping them safe and preserving their property values by taking a tough stance on drinking and driving. On the other hand, many of the individuals sentenced in her Court are residents in the community where she presides. Clearly, she gains no votes or political advantage by incarcerating her own constituents.

You would be hard pressed to find any criminal defense attorney that is in favor of strict uniform sentencing that fails to consider the unique case facts and circumstances of the individual who is convicted of a criminal or drinking and driving offense. At least one attorney is quoted in the Detroit Free Press article who will not represent clients who are charged with drunk driving in Judge Small’s court.

The real question is whether Michigan should adopt uniform sentencing for offenders convicted of drunk driving. While Michigan has adopted Sentencing Guidelines for felony cases, there are no such guidelines for misdemeanors. The Sentence Guidelines take an offenders prior criminal record along with aggravating/mitigating offense variables into consideration. In addition, the Michigan Sentence Guidelines provide that a Judge may depart from the guidelines sentence range only where there are substantial and compelling reasons to do so. The Michigan Sentence Guidelines favor individualized sentencing with some limitations and confines.

The very nature of the legal system in the United States depends upon fairness and due process, not strict liability, uniform sentencing or mandatory jail for drinking and driving convictions. A private criminal defense lawyer remains the only advocate for the rights of the accused versus the vast financial resources and manpower of the government to prosecute an individual. The very idea of uniform sentencing puts more power in the hands of the government and lawmakers and removes power from individuals and their private attorneys.
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The 42-2 District Court located at 35071 23 Mile Road, New Baltimore, MI  48065.  Judge William H. Hackel III is the presiding Judge for the Court.

The Court’s physical jurisdiction encompasses the City of New Baltimore, Chesterfield Township, New Haven and Lenox Township. The water-front City of New Baltimore is located in the heart of Anchor Bay.

The Police Agencies of the 42-2 District Court

There are several police agencies within the 42-2 District Court jurisdiction: Chesterfield Township Police, New Baltimore Police, Michigan State Police (I-94) and the Macomb County Sheriff’s Department. Because of its coastline, the presence of the Michigan Department of Natural Resources and United States Coast Guard is also necessitated in this region.

Chesterfield Township Gets More DUI Cases, Retail Fraud and Traffic Tickets 

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Chesterfield Township generates the most activity for the 42-2 District Court based upon its geographic size, density, major retail centers (see image above) and vehicular traffic. This is true for all matters heard in the 42-2 District Court such as drunk driving cases, criminal cases and traffic tickets. In 2016, Chesterfield Township administered 166 breath or blood tests in connection with operating while intoxicated arrests compared to 43 tests administered in the City of New Baltimore.

Criminal Cases in the 42-2 District Courts: Provisions of Law to Get Dismissals Available!

Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 42-2  District Court. The following is list of some of the most prevalent cases that we regularly see on the 42-2 District Court’s docket:

 Judge William Hackel III has been on the bench at the 42-2 District Court since 2009. The 42-2 District is a conservative district.  Judge Hackel runs a tight ship and his Court is run very efficiently.  Judge Hackel does have certain preferences for his Courtroom. One of his preferences is appropriate attire and he will compliment an individual that wears a shirt and tie when appearing before him. He also likes to see the presence of family members in the courtroom. Individuals that are placed on probation are expected to abide by ‘house rules’ and Judge Hackel will advise family members to contact him if there is incorrigibility at home.

Getting out on bond, bond conditions: If you are arrested or arraigned on a criminal matter in the 42-2 District Court, you will appear either before a magistrate or judge.  Insofar as possible, it is always advisable to have an attorney present for arraignment purposes. An attorney can make a considerable difference at an arraignment hearing by advocating for a personal bond (where no money needs to be posted) or a for a low cash/10% bond arrangement. Judge Hackel and his magistrate will listen to an attorney’s remarks regarding bond which can save potentially thousands of dollars that a bondsman would otherwise take.  In addition to the cash component of bond, the Court can also impose bond conditions upon a person’s release from jail. Drug and alcohol testing are common bond conditions for those charged with any crime involving drugs or alcohol. A ‘no-contact order‘ is assured in assault cases, domestic violence, sex crimes and all other crimes involving a victim. In retail fraud cases, the accused party may be instructed to refrain from entering the establishment where the alleged shoplifting occurred. A motion for a hearing can always be filed to modify bond conditions, remove a no-contact order or eliminate travel restrictions.

Misdemeanor or Felony Classification: In Michigan, the district courts have full jurisdiction to dispose of misdemeanors through sentencing. A misdemeanor is classified as an offense that carries up to 1 year in jail.  Felony cases are another matter. A felony is classified as a crime that can carry more than 1 year in jail. A felony case is initiated in the district court for the arraignment, probable cause conference and preliminary examination. A felony that is not resolved in the district court will be moved to the circuit court for further proceedings. In certain cases, a felony can be reduced to a misdemeanor and can remain in the district court. Accomplishing reduction of a felony to a misdemeanor, thus avoiding a felony conviction, is considered a huge victory.

The outcome of a criminal case in the 42-2 District Courts, as well as other Macomb County District Courts, is dependent upon many components.  The most significant factors that can have a bearing on the disposition of a case are:

  • Prior criminal history of the accused party.
  • Cooperation with the police.
  • Whether another party was injured, or property was damaged.
  • The ability of the accused party to provide restitution for damages to the injured party.
  • Whether the offense is a ‘policy case’ (crimes against senior citizens, children).

The 42-2 District Court presides over a diverse range of criminal cases which can be attributed to its distinct, shopping, suburban, rural and waterfront areas. In our experience, criminal cases can be resolved favorably at the 42-2 District Court. All of these special provisions of law are possible in the 42-2 District Court which can result in a dismissal of a criminal matter:

  • HYTA for youthful offenders (age 17 to 23)
  •  MCL 333.7411 for first time drug offenders
  • MCL 769.a for domestic violence.
  • Delayed Sentence or Deferral

Even individuals that have a prior criminal record will be given respect and consideration for plea deals to get a dismissal under certain circumstances.

Drunk Driving Cases in the 42-2 District Court

As I previously mentioned, Chesterfield Township nets more DUI cases than any other municipality within the 42-2 District Court. The City of New Baltimore comes in second place.

For most first time drinking and driving offenders, jail is not likely absent aggravating circumstances. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired’ in the 42-2 District. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain to a lower offense.

1st offense drinking and driving: Judge Hackel will consider non-reporting probation for a period of less than 1 year for first time offenders. In addition to probation, a person convicted for a first drinking and driving offense (operating while impaired) is looking at:

  • Probation for 1 year or less
  • Fines and costs approximately $1,200.00
  • Restricted license for 90 days
  • Attend an alcohol or substance abuse program
  • Possible drug testing, alcohol testing, AA meetings
  • 4 points on driving record

There are other mandatory and discretionary sanctions associated with a drinking and driving conviction including: driver responsibility fees, probation oversight expenses and vehicle immobilization. The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of a drinking and driving offense.

A repeat drinking and driving offender may be looking at a longer period of probation, up to 2 years, with the possibility of some jail time.  There are many steps that we can recommend to those charged with a repeat drinking and offense offense to reduce the likelihood of incarceration in almost every Macomb County District Court.

The 42-2 District Court Probation Department: 35071 23 Mile Road, New Baltimore, MI  48065

The 42-2 District Court has its own probation department located in the courthouse.

It is within the judge’s discretion whether to place an individual on probation after being convicted of a criminal or drunk driving offense. In many cases that qualify as isolated incidents, we may be able to convince the judge that probation, also known as community supervision, is not necessary. When probation is imposed, the judge may require reporting or non-reporting probation.  The maximum period of probation that can be imposed in the district courts is 2 years. However, our experience is that probation is rarely imposed for more than 1 year for most first-time offenders and Judge Hackel will often consider less than 1 year for most first offenders.

Traffic Violations in the 42-2 District Court: Reduced to Avoid Points and Record of any Conviction!

Several police agencies have an active presence monitoring the activity of vehicular traffic within the jurisdiction of the 42-2 District Court.  Like other district courts in Macomb County, I would say that traffic tickets are on the top of the list of types of cases that are litigated at the 42-2 District Court. When resolving a traffic matter in the 42-2 District Court, we are often able to negotiate a reduction or avoid points. A substantial reduction in a traffic ticket occurs when it is reduced to an offense such as impeding traffic or double parking. A traffic ticket that is reduced to impeding traffic or double parking does not carry any points and will never appear on a person’s driving record! We are also able to get favorable results for individuals charged with misdemeanor traffic offenses such as driving while suspended, reckless driving and leaving the scene of an accident. Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer and wind up with a record and points that will have an impact on insurance premiums for several years. The path of least resistance, paying the ticket, can be much costlier in the long run.

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If a revoked driver (habitual violator of Michigan drunk driving laws) meets the burden of proof by clear and convincing evidence and wins at the first Driver’s License Appeal Division (DLAD) hearing, he or she will be allowed to drive a vehicle subject to restrictions and with an ignition interlock device. The driver will be able to drive on a restricted basis during certain designated hours or for a designated purpose, such as employment and/or education. In addition, the ignition interlock device must be installed for a minimum period of 1 year on the vehicle which is operated by the person. The ignition interlock is an alcohol monitoring device which requires breath samples of a person while one is operating a vehicle. The purpose of the ignition interlock device is to measure the bodily alcohol content (BAC) of an intended driver and to prevent the motor vehicle from being started if alcohol is detected.

If a revoked driver loses at the DLAD hearing, he or she will have 2 options: wait until he or she is eligible for another hearing before the DLAD (which is usually 1 year) or appeal the decision by the DLAD to the circuit court. Neither option is as satisfying as winning, yet there is hope that the person will improve his or her case for the next hearing and get back on the road.

If the party feels that the decision by the DLAD was erroneous, he or she may file an appeal in the circuit court in the county where the person resides. The circuit court judge cannot hear any new evidence and is required to limit the appeal based upon the transcript and evidence submitted at the DLAD hearing. A circuit court appeal can occur no sooner than 60 days after the DLAD hearing because a copy of the transcript must be ordered and provided to the circuit court judge. The DLAD is represented at the circuit court appeal by a representative from the Michigan Attorney General’s Office. A circuit court judge can overturn the decision by the hearing officer if it is: not supported by competent, material and substantial evidence on the whole record, and/or, arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion. In addition, a circuit court judge may deny your appeal or remand your case to the DLAD for an earlier hearing.
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The final step in the Michigan driver license restoration process is the appearance at the hearing with your lawyer. The revoked party will be required to provide sworn testimony before the hearing officer. We like to meet with our clients at least 15 minutes prior to the hearing to review pertinent questions and become comfortable with the surroundings.

The hearings are held in many locations throughout the State of Michigan. Our firm regularly appears at the DLAD hearing locations in Clinton Township, Livonia and Port Huron. The hearings held at the Livonia DLAD are “live” hearings while the hearings in Port Huron are closed circuit video conference hearings. A party can present additional documentation-evidence on the day of the hearing at the Livonia location but not at the Port Huron location. All evidence must be submitted before the hearing at a location which employs video conferencing.

A hearing will be held in a small office with your attorney and a hearing officer in attendance. The hearing officer is an attorney who works for the Michigan Secretary of State. For all purposes, the hearing officer is the judge and jury. It is our job to present all of the evidence and testimony in an organized and persuasive manner. In addition, a closing argument to sum up the evidence and testimony presented at the hearing is often made after all of the proofs are presented. The hearing officer cannot award a restricted license to someone unless the burden of proof is satisfied by clear and convincing evidence.
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ATTORNEY – CLIENT CONSULTATION, CASE PLANNING: When we meet with someone for the first time to discuss a new license restoration case, we take our time to review their substance abuse history, driving record, counseling history, lifestyle changes and plan for continued sobriety. Each person has distinctive circumstances and we handle driver license restorations on a case by case basis. Given that each driver license restoration case is one-of-a-kind, we may decline to represent a client who does not have a sufficient period of sobriety or advise the person to make specific improvements before we will go forward. If necessary, we may advise our clients to become involved in a relapse prevention program, attend AA or counseling for a few months before he or she obtains a substance abuse evaluation and other documentation.

After being retained for persons that we feel will meet the burden of proof, we will advise our client to get a substance abuse evaluation, drug test, character letters and other important documentation. In addition, we provide our clients with a template for the required character letters and recommend local licensed counselors who are best suited to provide the required substance abuse evaluation.

SCHEDULING A DLAD HEARING: Our job is to provide the documentation to the Driver License Appeal Division which will be used as evidence in the case and prepare our clients for the actual hearing stage of the case. In my opinion, the documents which are strategically selected provide an organized foundation for the hearing that will follow. When we receive all of the requested documentation/evidence, we will request a hearing. It usually takes 30 to 60 days for our clients to gather all of the required documentation.

The hearing date is scheduled by the DLAD from 4 to 6 weeks after it is requested. A notice of the hearing date will be provided by mail to the petitioner and attorney.
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yamunaexpressway[1].jpgOur attorneys place a great deal of emphasis on the planning and preparation stage of a Michigan driver’s license restoration case. We prepare a driver’s license restoration case based upon several factors including one’s substance abuse history, diagnosis and prognosis. A large part of planning is organizing the evidence and prioritizing documents which will be submitted to the Driver’s License Appeal Division (DLAD). The evidence which is utilized will vary depending on whether a person is diagnosed as an alcoholic/dependent or an abusive drinker. It is important that a person understand that all evidence submitted for the purpose of a DLAD hearing, including all testimony, will be retained and recorded by the DLAD, and may be used in future hearings.

We are often able to find past documentation that may seem useless such as random alcohol/drug testing results, prior substance abuse evaluations or verification of counseling. On the other side, inappropriate documents or letters which are submitted to the DLAD can cast doubt on the case and devastate any chance of a license restoration for several years. Initially, our firm will ask for certain documentation to prepare for a DLAD hearing, including the following:

1. MASTER DRIVING RECORD: We need to obtain the lifetime history of drinking and driving cases along with all prior substance abuse offenses of the person seeking a license restoration. Therefore, obtain a master driving record from a Michigan Secretary of State office along with any other documentation pertaining to past criminal convictions which involve alcohol or drug crimes before you meet with an attorney. The DLAD will question a revoked person about all prior substance abuse convictions, including non-driving offenses such as minor in possession of alcohol (MIP) or possession of marijuana.

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Charter Twp of Clinton, MI 48038
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