Articles Posted in Driving Under the Influence (Alcohol, Drugs, OWI, High BAC)

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Macomb County: 2,000 Arrests Per Year for Driving Under the Influence

We know that you didn’t intentionally set out to get charged with drunk driving.  You’re in the right place if you are looking for straight answers  about a drunk driving matter (OWI, Super Drunk Driving) that occurs anywhere in Macomb County. This guide has been prepared by our local Macomb County Drunk Driving Defense Lawyers to provide you with valuable information and answers to many of your most pressing questions if you are charged with drunk driving as a first time or repeat offender.

We have dedicated this  article to give you the big picture on the topic of operating a motor vehicle under the influence of alcohol or drugs (DUI/OWI) in Macomb County based upon our experience handling over 10,000 criminal cases with DUI/OWI cases consistently one of the most prevalent criminal charges that we handle for our clients.

The district courts located in Macomb County are as follows:

macomb_county_district_courts_map

Macomb County District Court Map

Frequently Asked Drunk Driving Related Questions

  • Am I going to jail for a first time drunk driving? NO. You are not looking at jail in any Macomb County County District Court if you are found guilty of a first time offense involving operating while under the influence (including OWI, High BAC or Impaired Driving). If you are convicted of a second time drunk driving, there is a good chance that a locally experience drunk driving attorney will have a plan to avoid jail.
  • Will I lose my driver’s license if I am convicted of driving under the influence? If you are charged with a first time OWI, there is almost 100% likelihood that it will be reduced to “impaired driving” and you will not lose your license. However, license restrictions will be imposed for a period of 90 days upon pleading guilty or being found guilty of impaired driving. If you are convicted of either OWI w/BAC .08 or OWI with a High BAC .17, you are looking at a brief period of suspension followed by restrictions. Restrictions include driving for employment, school, counseling, medical and court related programs.
  • Will I lose my CDL if I am convicted of driving under the influence? Pursuant to Michigan laws, a person convicted of any drinking and driving offense will lose CDL privileges for a period of one (1) year.
  • When should I hire a lawyer? It might take a month or longer before you get your first court date. However, you don’t need to wait until you get a court date before hiring a lawyer. You should consider hiring a lawyer as soon as possible if you are charged with any crime or drunk driving. There are proactive measures and strategies that can be taken right away if you are facing a criminal offense or drunk driving.
  • Can a drunk driving ever get dismissed? The answer to this question is YES. It is difficult to get a drunk driving dismissed but entirely possible based upon numerous legal and non-legal variables and circumstances. Even when a case cannot be dismissed, there is a good chance that it will be reduced to a lower charge. Getting a local Macomb County drunk driving defense attorney is your best option if you are looking to get the best possible representation.
  • Can drunk driving be charged as a felony? YES. You can be charged with felony drunk driving,  which can carry up to 5 years in prison tf you obtain a third DUI conviction in your lifetime. The old rule that the all three offenses had to occur within a ten (10) year period has been abolished under Heidi’s Law. Hire a local Macomb County felony drunk driving attorney to explain how you can avoid the worse case scenario if you are charged with felony drunk driving in Macomb County.
  • Can I get an old drunk driving expunged? YES. Effective February 19, 2022, as part of Michigan’s Clean Slate laws, an individual may get one and only one drunk driving expunged if he or she meets the eligibility requirements and has resolved any underlying alcohol or substance abuse problem. The DUI expungement law will allow for expungement of any 1 of the following offenses:
    • Operating While Intoxicated
    • Operating Under the Influence of Drugs
    • Operating While Impaired
    • Operating with a High BAC .17 or greater
    • Zero tolerance/minor with any BAC
  • What is a BAIID device? A Breath Alcohol Ignition Interlock Device, or BAIID, is a device installed in a vehicle that captures the image of the drive and measures the driver’s blood alcohol content (BAC). The BAIID notifies the driver to provide breath samples when starting the car and at intervals while driving. The information is recorded and downloaded by the BAIID installer. BAIID violations can result in reinstatement of license suspension or revocation. A BAIID device allows an individual, whose license is otherwise legally suspended or revoked, to drive a vehicle. The BAIID is required for individuals that have been convicted of OWI with a High BAC .17.
  • Will I lose my CPL if I am convicted of an OWI or Impaired Driving? Unfortunately, you will lose your Concealed Pistol License (CPL) rights if you are convicted OWI or Impaired Driving. The right to have a CPL is gone for 3 years after a first time offense for operating under the influence. An individual convicted for a second offense will lose his or her CPL rights for 8 years.
  • Can I travel across the border into Canada if I am convicted of OWI or Impaired Driving?  Based upon Canadian immigration laws, a person that has been convicted of OWI or Impaired Driving will be considered criminally inadmissible to enter into Canada. Under certain circumstances, this harsh restriction may be overcome by showing of rehabilitation or obtaining a permit.
  • Should I start going to counseling if I am charged with drunk driving?  Your attorney will give you the best course of action to follow if you are charged with driving under the influence. In some cases, but not all, we may recommend proactive measures such as obtaining a substance abuse evaluation, attending AA meetings, attending on-line courses, and/or obtaining character letters. This is true if you are facing an OWI 2nd Offense, OWI 3rd Offense, or OWI with a High BAC .17 or more.

Michigan State Police Maintain Annual Drunk Driving Statistics

There are approximately 2,000 or more arrests per year for driving under the influence in Macomb County. The Michigan State Police (MSP Drunk Driving Audit) keeps statistics on the number of individuals tested for alcohol and drugs, the test result scores and the outcome of each case in the court system. For 2019 (2020 results are not being used because  irregularities due to Covid-19 stay-at-home measures), the Michigan State Police report indicates the following number of people were tested for alcohol or drugs by a breath or blood test in Macomb and surrounding counties:

  • Wayne: 4,631
  • Oakland: 4,126
  • Macomb: 2,130
  • St. Clair: 468

The MSP Drunk Driving Audit gives the numbers of those tested by each police department as well. In 2019, some of the larger police departments in Macomb County and neighboring Oakland County reported a large number amount of individuals tested for alcohol and drugs:

Macomb County: Number of individuals tested for alcohol/drugs

  • Clinton Township Police: 164
  • Chesterfield Township Police: 153
  • Sterling Heights Police: 140
  • Shelby Township Police: 137

Oakland County: Number of individuals tested for alcohol/drugs

  • Troy Police: 280
  • Royal Oak Police : 215
  • Rochester Police : 120

(Above numbers do not account for other individuals tested by Macomb Sheriff, Oakland Sheriff & MSP within the above cities.)

Of those tested, most wound up facing a criminal charge for operating a motor vehicle under the influence of alcohol or drugs.  Those finding themselves charged with operating a motor vehicle under the influence of drugs or alcohol (DUI/OWI), rarely fit the mold of someone that you would expect to get into trouble with the law. In many situations, our clients have responsible employment, solid relationships and lead healthy lifestyles. On the other extreme, we have represented those that admit to a substance abuse problem, use alcohol as a social lubricant after a recent breakup or divorce and/or are self-medicating to numb psychological disorders, relationship problems or a significant loss. Unfortunately, once in the court system, a person can be unfairly treated and characterized as a substance abuser because of an isolated episode of alcohol consumption and lack of knowledge of Michigan’s strict DUI laws.

What do the all of the abbreviations (OWI, DUI, etc.) stand for?

The following are common abbreviations used by the legal system in reference to the various charges for operating while intoxicated or impaired:

Why did the police destroy my driver’s license? Can I drive with this paper license?

dui 257g

Yes, you can drive fully on the paper license issued by the police when you were released from jail.

The following is a directive to law enforcement officers after placing someone under arrest for a DUI:

MCL 257.625g: On behalf of the secretary of state, immediately confiscate the person’s license or permit to operate a motor vehicle and, if the person is otherwise eligible for a license or permit, issue a temporary license or permit to the person. The temporary license or permit shall be on a form provided by the secretary of state.

Once officially arrested for a drunk driving offense, the police will destroy the driver’s license of the accused party and issue a Michigan Temporary Driving Permit (see above image).  The temporary permit will be provided to the offender upon release from jail along with a baggie containing the following:  breath-test result, search warrant for blood if there was a refusal, ticket or other notification, bond receipt and towing receipt. This Michigan Temporary Driving Permit will enable the person to continue to operate a vehicle without any restrictions. Upon being found guilty or convicted of operating while intoxicated or impaired, the Secretary of State will take appropriate action against the party’s license (suspend, revoke, restrict). The aggrieved party may obtain a new picture license after all of the license action has expired with respect to the underlying conviction offense. License action may also be imposed for alcohol/drug test refusals pursuant to Michigan’s implied consent laws.

License Suspension, Revocations, Restrictions

There are mandatory license sanctions for every OWI offense. Upon conviction, these sanctions, or action, is imposed by the Secretary of State and the court system is powerless to intervene or provide any relief when a person is suspended or revoked for a drinking or driving offense.  Sobriety court may also save a repeat OWI/DUI offender from a mandatory license revocation.

Michigan Alcohol or Drug Crime License Action
First Offense OWI (.08 or greater)  30 days suspended, 150 days restricted
First Offense OUID (drugs)  30 days suspended, 150 days restricted
Second Offense within 7 Years Indefinite revocation (minimum 1 year)
Second Offense within 7 Years (Sobriety Court) 45 days suspended, 320 days restricted with BAIID
Third Offense within 10 Years Indefinite revocation 1 year to 5 years
Child Endangerment w/Child u/age 16 90 days suspended, 90 days restricted
Super Drunk (High BAC .17% or greater) 45 days suspended, 320 days restricted with BAIID
Impaired Driving (OWVI) 90 days restricted
Zero Tolerance, Under 21 w/.02% – .07% 30 days restricted
OWI/Causing Injury Indefinite revocation
OWI Causing Death Indefinite revocation
Other Felony Convictions w/Motor Vehicle Revocation or Suspension
First Offense Drug Crime  30 days suspended, 150 days restricted
Second Offense Drug Crime  60 days suspended, 305 days restricted

When am I allowed to drive if I am granted a restricted license?

Depending upon the final outcome of a drinking and driving case, a person is normally allowed to drive on a restricted license following a conviction for a driving and driving offense. Restrictions include driving for the following purposes:

  • To, from and during the course of employment.
  • To an alcohol, drug or mental health education treatment program as ordered by the court.
  • AA or NA meetings.
  • An educational institution at which the person is enrolled as a student.
  • A place of regularly occurring medical treatment for a serous condition or medical emergency of the person or a member of the person’s household.
  • An ignition interlock service provider (for those required to have a BAIID device).
  • The judge has discretion to permit a minor’s custodian to drive to a day care center or educational institutional where the child is enrolled.

An indefinite license revocation may be appealed after a minimum of one (1) year (or after 5 years for a second revocation) to the Michigan Department of State. The process to regain driving privileges is known as a driver’s license restoration proceeding.

The Science of Blood Alcohol Content (BAC): Alcohol Absorption and Elimination

Shot, Beer, and Wine

Law enforcement officers use breath, blood or urine tests to measure a person’s blood alcohol content (BAC). In Michigan, an individual can be considered legally intoxicated even though the individual is not actually intoxicated. This is possible because Michigan has set legal BAC limits for individuals that operate a vehicle after consuming alcoholic beverages:

  • Operating While Intoxicated (OWI): A person that operates a motor vehicle with BAC of .08% to .16% is considered legally intoxication, regardless of actual intoxication. A BAC of .08% is sufficient to support a charge of Operating While Intoxicated (OWI).
  • Super Drunk Driving or OWI with High BAC: A person that operates a motor vehicle with BAC of .17% or greater, regardless of actual intoxication, faces a higher charge of OWI with a High BAC.

DUI BAC CHART MALE & FEMALE

The science of alcohol elimination from the body also plays a role in a person’s BAC. Just as alcohol is absorbed in a person’s blood over time, it is also eliminated. Although each person has a unique metabolism rate, it is estimated that alcohol is eliminated from the body at the rate of .015% per hour after hitting a peak BAC.  At this rate, it takes an estimated 70 to 90 minutes, or longer, for the human body to eliminate a single drink. A single drink = 1.5 oz. shot of 80 proof hard liquor, a 5 oz. glass of wine (12% alcohol) or a 12 ounce beer (5% alcohol).  See hours to zero chart below:

HOURS TO ZERO

Once behind the wheel of a car after consuming alcoholic beverages, ignorance of the law is not a excuse and the law enforcement officials do not discriminate even for those individuals that have never been in trouble.

The Court Process in Macomb County

Get an experienced local drunk driving lawyer if you are faced with a drunk driving case in Macomb County. Do not think that the police or clerks of the court will give you legal advice that you can trust. Drunk driving is a crime in Michigan that is governed by the rules of criminal procedure. A person charged with a crime is entitled to protection under the United States Constitution pursuant to the Bill of Rights. Whether it is a misdemeanor or felony drunk driving, the accused is entitled to discovery of all reports, test results, witness statements, accident reports and video/photographic evidence. In addition, the accused is entitled to a trial by jury. The following is a basic framework of the court process in Macomb County for OWI cases:

  1. Arraignment:The arraignment is the first time that you will appear before a Judge or Magistrate regarding your case. The following will occur at your arraignment:
  • The court will advise you of your charges.
  • You will be required to enter a plea (we ALWAYS plead not guilty or stand mute).
  • The court will establish bond conditions such as drug and alcohol testing.
  • Your next court date will be scheduled.
  1. Alcohol and Drug Testing:If alcohol and/or drug testing is imposed, you will be instructed by the court when and where to test. By following these instructions, you will avoid a bond violation hearing for non-compliance. Here is a list of the various methods to test for alcohol and drugs:
    • EtG (urine) test: EtG is used to detect recent alcohol consumption in a urine sample. The test can confirm that there has been alcohol in the body up to five days after consumption.
    • Random Alcohol Testing: A device called a breathalyzer is used to measure blood alcohol content (BAC) from a sample of air exhaled from a person’s lungs. You may be asked to provide random breath test samples at a designated location on a breathalyzer instrument.
    • SCRAM Monitor:  SCRAM Continuous Alcohol Monitoring ankle bracelet provides continuous transdermal alcohol testing for by automatically sampling the wearer’s perspiration every 30 minutes. Some clients prefer SCRAM Monitoring over other methods of testing while others claim that it is embarrassing and uncomfortable.
    • SoberLInk: This is the handheld breathalyzer that fits in a pocket or purse and requires breath samples at various intervals during the day. It uses facial recognition and the information is downloaded to the provider.
  1. Pretrial conference: The pretrial conference is scheduled after the arraignment. This is the proceedingwhere our attorneys will speak with the prosecutor to discuss various issues in a criminal case and possibly work out a plea bargain.  Driver license sanctions are imposed by the Secretary of State after you enter a plea before the Judge. You will receive your license sanctions approximately 10-14 days by US Mail after a plea based conviction is entered on your driving record.
  1. Restricted license:You will receive driver’s license sanctions/restricted license from the Secretary of State within about 10 to 14 days after a guilty plea or conviction is entered with the court. Driving sanctions are attached to every drinking and driving offense. The sanctions that apply will depend on the final outcome of the case:
    • Super Drunk Driving (OWI high BAC .17): NO driving for the first 45 days followed by restrictions for 320 days with a BAIID device.
    • OWI ( With a BAC .08 to .16): NO driving for the first 30 days followed by restrictions for 150 days. BAIID NOT REQUIRED.
    • Impaired Driving: Restrictions for 90 days. BAIID NOT REQUIRED and there is no mandatory period of suspension.
  1. License Restrictions Defined:As we discussed, Allowable restrictions include the following:
    • To and from residence and all employment, and during all employment.
    • To and from alcohol or drug education or treatment programs.
    • To and from regularly scheduled treatment for serious medical conditions.
    • To and from probation, community service, education (college, trade school, etc).
    • BAIID is required for Super Drunk cases for 320 days. Court may order BAIID even if not required by SOS.
  1. Substance Abuse Evaluation: You’ll be required to appear for a substance abuse evaluation with one of the court’s probation officers after you enter a guilty plea or after a conviction for a drinking and driving offense.  This appointment is used to determine if you have a substance abuse problem. A report will be prepared at the conclusion of this process which will contain recommendations to the Judge regarding treatment options, if necessary. You should dress neatly, be cooperative, and stick to answering the questions that are asked regardingyour circumstances in life and use of alcohol and control substances.  If you are already involved in a counseling program, the court may allow you to continue with your own program, rather than impose some other court directed program.
  1. Sentencing:Sentencing occurs After a substance-abuse assessment is completed. We will have an opportunity to review the assessment before the actual sentencing proceeding before the judge. For a first offense”impaired driving”, you can expect the following sentence terms and conditions:
    • OWI w/High BAC .17 or more: 6 points, up to 180 days jail, up to 360 hours community service, up to 2 years probation, fines, court costs, substance abuse program(s).
    • OWI .08 or more: 6 points, up to 93 days jail, up to 360 hours community service, up to 2 years probation, fines, court costs, substance abuse program(s).
    • Impaired Driving: 4 points, up to 93 days jail, up to 360 hours community service, up to 2 years probation, fines, court costs, substance abuse program(s).
    • Probation may be non-reporting or reporting (reporting probation is not a big deal and only means that you have to report to the probation officer once per month).
    • You may file for early termination of probation after you have served 50% of the total term of probation without any major violations.
    • If you intend to travel out of state while you are in the court system (on bond or during a period of probation) you will need to file a request to travel with the court .
    • The Court may require you to continue testing while you are traveling out of state.
  1. Expungement of Drinking and Driving Offense: You are eligible for expungement of one drinking and driving offense in your lifetime. You can file for an expungement when you are off of probation for a period of 5 years. An expungement is a way to remove past offenses from your public record. Please retain any proof or certificates of any programs that you have completed.

What about driving under the influence of marijuana?  

Marijuana is now legal in Michigan for recreational and medical use. However, a person that drives under the influence of marijuana is exposed to the same fate as someone that drives after consuming alcohol.

Alcohol can be tested by obtaining a breath sample with equipment known as a breathalyzer instrument. Marijuana is discovered by a blood test. In Michigan, drinking and driving charges are based upon legally established measurements of blood alcohol content (BAC) as measured by the testing equipment. The legal limits (BAC) for drunk driving in Michigan per se cases are as follows: Content results

  • OWI = BAC .08 or greater
  • Super OWI = BAC .17 or greater

No such legal limits for THC exist at this time and there is no approved testing instrument for marijuana that compares to the breathalyzer.  Currently, police utilize blood to test for marijuana and drugs. Future testing is likely to include breath equipment capable of testing for marijuana.

In general, the blood test results (THC nanogram levels) alone are insufficient to convict without other proof of impairment. There are a multitude of legal challenges that can be made in these cases especially when the blood test does not account for active THC or there is a lapse in time when marijuana was last used.

What are the likely outcomes of a drunk driving case in Macomb County?

Getting a dismissal is a top priority in every criminal or drunk driving case. Depending upon several factors in a given case, we may recommend fighting the case at trial, seeking a deviation request (for a reduction to a lower charge) or negotiating a plea bargain to a better place. According to US Justice Department Statistics, approximately 90% or more of all criminal and drunk driving in the United States are resolved by plea bargaining. The same is true for criminal and drunk driving cases in Michigan and in the Macomb County .  Plea bargaining can result in a dismissal, a reduction in the charges as well as recommendations for leniency at the sentencing phase of the case. Here are some common scenarios for drunk driving/drugged driving cases in Macomb County:

FIRST OFFENSE: No prior record, no Accident, low BAC (under .16), no substance abuse problem, cooperative with police: I would call this best case scenario. A person charged in Macomb County with an OWI in this position is likely to get a reduction to “impaired driving” with a sentence as follows:

    • Fines/costs range from $900.00 to $1500.00, depending upon the court.
    • 1 year probation (a strong argument can be made for non-reporting probation).
    • Testing is likely in most Macomb County County courts.
    • Community service is unlikely in most Macomb County courts.
    • Attending some form of counseling is likely in most Most County courts (usually a short program consisting of 1-8 sessions).
    • Most Macomb County judges will consider modification of probation and testing requirements if there has been at least 6 months or more of compliance.

SUPER OWI, High BAC (.17 or greater): Getting charged with OWI with a high blood alcohol content (BAC) of .17 or greater in Michigan means stiffer penalties and being labeled a “super drunk driver”. For whatever reason, we are seeing a greater number of clients charged with “super drunk driving”. In 2018, approximately 660 individuals were tested by  the police in Warren, Shelby Township, Sterling Heights and Clinton Township with 301 registering a BAC of .17 or greater. If convicted of “super drunk driving”, the offender is required to have a Breath Alcohol Ignition Interlock Device (BAIID) on any vehicle he or she intends to operate for a period of 320 days after serving out a 45 day driver’s license suspension with no driving privileges. Contact a local Macomb County OWI lawyer to find out how a “Super OWI” can be dropped down to a much lower offense that will NOT REQUIRE the BAIID.

SECOND OFFENSE WITHIN 7 YEARS: Along with possibility of jail, a second offender faces mandatory license revocation upon being convicted of a second drinking and driving offense within a period of 7 years or a third conviction within a 10 year period. There are NO driving privileges allowed during a period of revocation. For those facing license revocation, driving privileges can be saved if the person is accepted in a Sobriety Court program. The Sobriety Court program allows eligible individuals convicted of certain drunk driving offenses to obtain a restricted driver license with installation of an ignition interlock device (BAIID) on vehicles they drive and own.  Sobriety Court is a good fit for someone that needs an intensive alcohol rehabilitation program and also for those convicted of a second offense for operating under the influence within a 7 year year period.

THIRD LIFETIME OFFENSE, Felony Drunk Driving: A person convicted of OWI with two prior offenses in his or her lifetime faces the following penalties:

  • $500 to $5,000 fine, and either of the following:
    • 1 to 5 years imprisonment
    • Probation, with 30 days to 1 year in jail.
  • 60 to 180 days community service.
  • Driver’s license revocation and denial if there are 2 convictions within 7 years or 3 convictions within 10 years. The minimum period of revocation and denial is 1 year (minimum of 5 years if there was a prior revocation within 7 years).
  • License plate confiscation.
  • Vehicle immobilization for 1 to 3 years, unless the vehicle is forfeited.
  • Possible vehicle forfeiture.
  • Vehicle registration denial.
  • 6 points added to the offender’s driving record.

You may think the odds are against you if you are charged with an OWI 3rd (felony) but that is not necessarily the case. If you find yourself in this position, you need to a solid action plan for the best chance to get the felony dropped down to a misdemeanor in the court system. In avoiding a felony, our clients have been able to avoid jail, retain their right to own firearms, retain driving privileges, retain valuable career licenses and not be labeled a felon!

Fighting for non-reporting probation, no testing, a limited counseling program (1 day class) and other leniency are realistic goals for individuals that qualify as isolated offenders and do not display a problem with alcohol.

Can a drunk driving case ever be completely dismissed?

If you are charged with drunk driving, we already know that you want the case dismissed, you do not want to be on probation and you do not want to be tested for alcohol. However, the reality is that 90% or more of all drunk driving cases wind up resulting in a conviction to a drinking and driving related crime.

In some cases, certain factors and legal avenues can be pursued which may result in a dismissal, major reduction or not guilty verdict of a drunk driving case.

Deviation request:  A deviation request is a formal request with supportive material to seek a favorable outcome when the policy of the prosecutor otherwise is against any plea bargain. Our firm utilizes deviation requests extensively in our criminal and drunk driving cases when a client has several positive factors and we feel that the prosecutor will consider a compassionate outcome.

Motion to Dismiss:  Many cases can be won prior to trial with a properly drafted and researched motion to dismiss. A motion to dismiss can be filed for a number of reasons including:

  • Suppression of test results (failure to follow protocol in the testing process).
  • Failure to establish an element of the crime (such as operation of the motor vehicle, parked vehicle).
  • Invalid traffic stop.

A motion to dismiss may also result in a plea bargain when the prosecutor does not want to run the risk of holding a hearing on a motion to dismiss.

Trial: Any person accused of a crime, including drunk driving offense, is afforded the right to a trial by the 6th Amendment to the United States Constitution. A trial may be held before a judge or jury. The judge or jury  is required to return a verdict of not guilty unless the case is proven beyond a reasonable doubt.

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Three Lifetime Drunk Driving Charged as a Felony in Michigan!

Since the passage of Heidi’s Law in Michigan in 2007, a person is subject to felony prosecution for three (3) or more lifetime convictions for any combination of:

  • OWI/operating while intoxicated-alcohol with a BAC of .08 or greater,
  • OUID/operating under the influence of drugs/prescription medications,
  • OWPD/operating with the presence of Schedule 1 controlled substance,
  • Super drunk driving/operating with a high BAC of .17 or greater,
  • OWVI/operating while impaired driving,
  • Zero Tolerance/under 21 with any BAC (0nly 1 such conviction may be counted towards a felony).

Driving under the influence convictions which occur in states outside of Michigan are also counted.   This law has been on the books for several years and all states have adopted this law. However, prior to the passage of this Heidi’s Law, a person could only be charged with felony drunk driving if the prior convictions occurred within 10 years of the new arrest.  This blog will explore legal defense strategies, possible penalties and other ramifications associated with a felony DUI offense. For additional information: What you need to know now if you are charged with drunk driving anywhere in Macomb County.

It is a felony if you get convicted for a third drinking and driving offense in Michigan.  A person convicted of a felony will lose coveted rights such as the right to possess a firearm. There is a social stigma for individuals convicted of a felony and other consequences associated with a felony record.  Hiring a local lawyer with years of experience  handling felony matters if you find yourself facing a DRUNK DRIVING THIRD or any other felony charge. Felony lawyers will look at every possible angle to get the charge dismissed or reduced to lower offense.  Felony lawyers also know what to expect from the local judges and prosecutors in the jurisdiction where they practice.  For example, we know from experience that there is the possibility of reducing a felony charge in Macomb County (including felony drunk driving) to a misdemeanor under certain circumstances and with the Macomb County Prosecutor’s approval.

Penalties for Felony Drunk Driving Conviction

The list of possible penalties for a third driving and driving conviction in Michigan are as follows:

  • Fines: $500.00 to $5,000.00 fine, plus costs.
  • Jail/Community Service: Imprisonment for 1 to 5 years, or, probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of this imprisonment shall be served consecutively.
  • License Sanctions: License revoked minimum of 1 year for any felony driving offense. A second revocation is for 5 years. After minimum period of revocation, a person must appear before the Driver License Appeal Division satisfy several requirements before a license will be granted.
  • Other: Destruction of License, Plate confiscation, Vehicle immobilization from 1 to 3 years, Possible vehicle forfeiture .
  • Points: 6

Proving Drunk Driving: Actual intoxication is irrelevant when test results are .08% or greater

The elements of a drunk driving which the prosecutor must prove are:

Intoxication or Impairment by alcohol, drugs or marijuana: In Michigan “Operating While Intoxicated” (OWI) means operating a motor vehicle while under the influence of alcohol and/or drugs (OUID) to a degree that renders one unable to safely drive a vehicle. In Michigan, OWI convictions can be obtained regardless of actual intoxication if a person has a BAC of .08% or greater or tests positive for the presence of certain Schedule 1 drugs. Pursuant to MCL 257.625, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2018, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(c) The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

Proof of operation of vehicle:  The police do not have to witness the offender actually driving or operating the vehicle. In the cases researched, you can be charged and convicted with OWI if the police had probable cause to believe the accused was operating the vehicle at some point in time. In other words, evidence of recent operation will suffice in cases where there is an accident or when a vehicle in a ditch or off the road).

Legal traffic stop:  A traffic stop may be based upon any violation of any Michigan traffic laws. Drivers are often stopped for straddling lane markers, weaving between lanes, driving at excessive or very slow speeds, braking erratically, obstructed vision, defective equipment and coming in close contact with objects or other vehicles. The police may also approach a person that is found fixing a flat tire on the shoulder of a road although nothing illegal is occurring! Cellular phone calls to the police may also be used to give law enforcement officers with notice of a drunk driver’s whereabouts. The caller may be eventually be called as a witness.

Planning a defense strategy for felony drinking and driving

Our goals  in every criminal case, including drunk driving, are always the same: avoiding of a conviction and avoiding jail!  While avoiding a conviction or jail 100% of the time is not realistic even for experienced criminal defense lawyers, steps can be taken to get a case under control, reduce charges and obtain the lowest possible sentence.

Police Report: The police report can be obtained soon after we are retained for a criminal matter. By law, the prosecutor is required to provide full disclosure (known as discovery) of the report, videos and test results (see blog regarding alcohol/drug testing). Refuting the accuracy of tests, intoxication and grounds for the traffic stop are ways in which a drunk driving charge may be challenged. An aggressive drunk driving defense may also include:

  • Interviewing any possible witnesses (passengers, last persons who could testify as to client’s sobriety)
  • Obtaining an expert witness to challenge blood or alcohol test results (especially in close cases or cases involving prescription meds or THC levels)
  • Recreating the scene of the traffic stop

Client Background: Obtaining a complete personal history of our client is essential in the preparation of a sound legal defense. In our experience, the positive background of a person can make a vast impression on the prosecutor, the probation department and the assigned judge during various phases of a criminal case.

  • Education, degrees, special skills
  • Employment, years at employment, position, awards
  • Family situation, child support obligations
  • Military duty, tours of service, decorations, honorable discharge
  • Charitable service, community involvement
  • Other awards, achievements, recognition
  • Past and present physical health, mental health, psychological attention, medications
  • Past and present substance abuse/alcohol treatment, in-patient care, attendance of AA, relapse prevention programs

Criminal History: In addition to the personal history, the lifetime criminal conviction history also plays a vital role in the criminal process of a drunk driving offense.  We can usually minimize the value of extremely old criminal offenses.

  • Misdemeanors (including traffic related misdemeanors)
  • Felonies
  • Juvenile record
  • Drinking and drug convictions (disorderly conduct, domestic violence, MIP, possession of marijuana, etc)

Habitual Felony Offenders: For felony convictions, Michigan judges are required to follow the Michigan Sentencing Guidelines. The guidelines factor in prior convictions and felonies for purpose of scoring a sentence range. Prior felonies will be used to label an offender as a habitual offender. A person with 1 prior felony is considered a “habitual offender 1” or Hab-1st. Habitual offender status can go as high as Hab-4.  The maximum penalty for a person with Hab-4th  status (meaning the person has 3 prior felonies not counting the charged felony) is up to life in prison.

Other Relevant Factors:  The following factors may influence the outcome or sentence of a felony drunk driving:

  • Is the person charged with  a *true 3rd DUI offense (meaning the offender has only 2 prior DUI lifetime convictions)?
  • Are any of the prior drinking & driving offenses more than 10 years old?
  • Does the offender have a felony record?
  • Does the pending offense involve an injury accident?
  • Is the blood alcohol content (BAC) in a close range to .08% or is it extremely high (over .17%)?
  • Has the offender engaged a substance abuse counselor and/or AA?
  • Is the offender on probation for any other criminal matter?

*In Macomb County, our firm has advocated plea bargains to a misdemeanor if the offender is charged as a true third drunk driving offender. We have achieved this result in numerous cases; including offenders with more than two (2) prior lifetime DUI offenses. Public policy, accidents involving injuries and directives by the County Prosecuting Attorney may have an impact on plea bargaining drunk driving cases.

Possible outcomes of a drunk driving felony

Everyone likes to believe that they will win their drunk driving case at trial. This is not realistic since the vast majority of drunk driving offenses (as well as all other criminal offenses) in Michigan are resolved based upon a plea bargain.  In fact, recent statistics indicate that over 90% of all criminal cases are resolved by a plea bargain and not by trial.

Rarely is a client willing to roll the dice at trial when we can secure a deal to have a drunk driving felony reduced to a misdemeanor with a dismissal of the felony charge. However, our attorneys will examine a case from every angle to determine the best course of action which may include:

  • Scheduling the case for a jury trial
  • Fling and arguing motions to dismiss because of an illegal traffic stop
  • Filing and arguing improper testing procedures or equipment failures
  • Plea bargaining to a misdemeanor (achieved by our firm in numerous drunk driving cases)
  • Negotiating the minimum sentence (30 days with community service) to avoid prison
  • Sobriety Court

Michigan State Police Annual Drunk Driving Audit

The Michigan State Police maintains an annual audit of drunk driving cases based upon data from the courts and police in Michigan which provides detailed information concerning traffic fatalities and injuries, as well as drunk driving arrest activities in the state. The most recent Michigan Drunk Driving Audit covers 2022 which was completed in July, 2023. Therefore, don’t expect the 2023 audit until around July, 2024. Here are some of the details obtained from the 2022 Annual Drunk Driving Audit:

Macomb County, Number of breath and/or blood tests for alcohol: 1,890

Oakland County, Number of breath and/or blood tests for alcohol: 3,619

Wayne County, Number of breath and/or blood tests for alcohol: 3,735

St. Clair County, Number of breath and/or blood tests for alcohol: 458

Washtenaw County, Number of breath and/or blood tests for alcohol: 840

There are thousands of drunk driving arrests in the Metro Detroit and surrounding regions as illustrated by the above information. Some of these individuals may be facing any one of the following drinking and driving offenses:

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License Revocations and Appeals to the OHAO: 

I wanted to use this post as a forum to reflect on my vast experience handling driver license appeals with the Michigan  Department of State, Office of Hearings and Administrative Oversight (OHAO). The OHAO was formerly called the Driver License Appeal Division or DLAD. The OHAO is the administrative body of the Secretary of State that conduct driver license restoration hearings. The hearing officers are licensed attorneys that are employed by the State of Michigan. In comparison to Michigan District Court or Circuit Court Judges, The hearing officers are not elected or appointed for a designated term.

Following the COVID pandemic, OHAO hearings are conducted remotely. Presently, the OHAO utilizes the Microsoft Teams video conferencing application to conduct hearings. Click here for a directory of the OHAO hearing officers and the link to the OHAO MS Teams portal.

  • WINNING OHAO HEARING: If you win your OHAO hearing, you will be allowed to operate a vehicle on a restricted basis with a Breath Alcohol Ignition Interlock Device (BAIID). After you have had the device on your vehicle for a minimum of one (1) year, you can file a request for a second hearing FOR REMOVAL OF THE BAIID AND FOR  FULL RESTORATION of your driver’s license.
  • LOSING OHAO HEARING: If you lose your OHAO hearing, you are not eligible for another OHAO hearing for a period of one (1) year.

HOW WILL YOU ANSWER THESE QUESTIONS??

A hearing is subject to the rules of evidence and is conducted by the petitioner’s driver license restoration attorney and the hearing officer. Hearings last approximately 30 to 45 minutes. Here is a partial list of questions that may be covered at an OHAO hearing:

  • Are you an alcoholic?
  • Have you ever used drugs?
  • Do you have a medical marijuana card?
  • Do you think it would ok to partake in a toast at a wedding with an alcoholic beverage?
  • Do you continue to attend Alcoholics Anonymous or a counseling program?
  • Why didn’t you stop drinking after your first drinking and driving offense?
  • Do you see yourself drinking at any time in the future?
  • Did you drink on a daily basis? Weekly basis? Monthly basis?
  • What kind of alcohol did you consume (beer, hard liquor, wine)?
  • How much would you consume per sitting?
  • Do you keep any alcoholic beverages in your residence?
  • Does anyone in your household consume alcoholic beverages?
  • Do you ever go to bars or places where alcohol is served?
  • Do you know the serenity prayer?
  • Do you know the 12 AA steps?
  • What is your relapse history?
  • What is the longest period of maintaining sobriety?
  • Are you on probation?

Your answers to these questions, along with several more, can make or break you! If you need help with any of the questions, do not hesitate to hire an experience driver license restoration lawyer in Macomb County. An experienced Michigan license restoration lawyer will work with you to win your case. This means that your lawyer make sure that all of your documentation is consistent and effective before it is submitted to the Secretary of State and will prepare you to answer the questions that are likely to be raised at your hearing.

When can a person’s license be revoked

A person that is classified as a habitual drunk driver or has a felony conviction involving a motor vehicle faces indefinite license revocation. Indefinite license revocations are imposed for the following scenarios:

  • 2 or more offenses for operating under the influence (drugs or alcohol) within 7 years.
  • 3 or more offenses for operating under the influence (drugs or alcohol) within 10 years.
  • A conviction for operating under the influence causing a serious personal injury.
  • A conviction for operating under the influence causing death.
  • A felony conviction which results in license revocation.

Appealing a license revocation: Evidence MUST be consistent!

There is a long list of evidence that is required and must be submitted before a client can get an OHAO hearing:

  • Form 258: Current substance abuse evaluation.
  • Form 257: Petitioner’s background.
  • Drug Screen: 12 panel drug test with at least two integrity variables.
  • 3-6 Character Letters: At least 3 letters are required that verify sobriety of the petitioner.
  • DI4P-Physician Statement: This form is required when a person has a medical condition, or uses certain medications, that may have an impact on the person’s ability to operate a vehicle.
  • Optional: Evidence of attendance at support meetings, counseling, AA.
  • Optional: Other positive documentation such as completion of probation, Sobriety Court, etc.

Link to forms 257 and 258, license appeal hearing

Hiring an attorney that knows the OHAO process should be your first priority if you are thinking about a license appeal. The license restoration process is very particular and specialized. Just because you waited several years for a hearing, went to jail or need a license to work does not mean that you will win your hearing. You must present consistent credible evidence for your licensee restoration hearing. With certain hearing officers, your evidence muse be almost perfect or you can risk losing your hearing! Unfortunately, the standards set forth regarding the evidence are not entirely objective and are not always applied fairly.

Losing is not an option!

You will lose your hearing if your evidence does not prove that you are likely to remain sober. You must be able to c0mmunicate your case to the OHAO with supportive evidence that you understand your duty to protect the public and that it is never acceptable to operate a vehicle under the influence of alcohol or drugs, An experienced OHAO practitioner can increase your chances of winning an OHAO hearing by and prepare you for your evaluation. The following are examples of just a few ways that you can lose your OHAO hearing:

  • Probation has not been terminated.
  • A longer period of sobriety is necessary.
  • Character letters or other documentation are incomplete.
  • Inconsistent evidence and sobriety dates.
  • Failure to mention all prior criminal offenses.
  • Failure to know the AA steps if you are attending AA meetings.
  • Failure to obtain a doctor’s letter if you are taking certain medications for sleep, pain or psychological reasons.

By being well prepared by an experienced driver license appeal attorney, you are more likely to win your hearing. Unfortunately, if you lose your hearing, you are not eligible to file a request for another hearing for a period of one (1) year.  THIS IS WHY WE SAY “LOSING IS NOT AN OPTION!”

Getting you ready for your hearing

In the aftermath of Covid-19, OHAO hearings are now held remotely via Microsoft Teams.

Oftentimes we represent clients who have already attempted a hearing without the help of counsel. Even though they have winning cases, they lose simply because they did not know how to present their case to the OHAO. An individual that appears before the OHAO must be able to testify as to their past and also as to their present and future behavior. A person’s background regarding use of alcohol and drugs is scrutinized because the State of Michigan owes a huge responsibility to the drivers of Michigan, and the burden is on the petitioner to show they are again worthy of the privilege of driving.

Proceedings before the OHAO are very unique. First, most clients are surprised to hear that they are not adversarial, per se. Additionally, most are not aware that the hearing officer is going to ask probing and invasive questions about their substance abuse history. Lastly, and perhaps most importantly, many people do not realize there is a RIGHT way to approach these hearings and answer the questions.

That being said, our office has developed a paradigm for approaching all cases. From our first consultation we explain to clients the strengths and weaknesses of their case, and give an honest assessment of if the matter is worth pursuing. Our track record with these types of cases is very good, we generally win. We know how to win and what is expected because our lawyers have appeared before each OHAO officer as much as any other attorney in the State of Michigan.

Winning your license restoration hearing

When you win your license restoration hearing after serving a mandatory period of revocation, you will be allowed to drive with some restrictions and requirements. At the very least, the OHAO will require the installation of a Breath Alcohol Ignition Interlock Device (BAIID). In addition, the petitioner will only be allowed to drive for designated purposes, such as employment, or for designated days and hours.

After successfully abiding by the restrictions and requirements for a period of at least one (1) year, the individual may file an appeal to the OHAO for a FULL RESTORATION OF LICENSE. The same documentation (form 257, form 258, character letters, etc.) must be supplied to the OHAO, along with a current BAIID report, before a full license restoration hearing can be scheduled.,

The Breath Alcohol Ignition Interlock Device (BAIID) and BAIID Violations

In Michigan, you are considered a habitual drunk driver if:

  • Two or more DUI convictions within 7 years.
  • Three or more DUI convictions within 10 years.

Habitual offenders that are able to get their license restored will be allowed to operate a vehicle that has a BAIID device installed. As we have discussed, a person that has multiple driving under the influence convictions will not be eligible to appeal for a license until the minimum revocation period has been served. After serving the minimum revocation period, the party is required to prove his or her case before the OHAO. If you are well prepared and your evidence is consistent, you can expect to win your hearing and be granted a restricted license with the BAIID device.

A BAIID is a technical device that measures a person’s bodily alcohol content (BAC) and is connected with a motor vehicle’s ignition and other control systems. The BAIID keeps the vehicle from starting if the BAC is .025 or higher. The BAIID also includes a camera which records an image of the individual providing the sample. The device will also require random rolling retests while the person is driving the vehicle.

If there are alcohol readings or other BAIID violations after the device is installed, they will be reported to the Secretary of State as violations. If the BAIID has a false positive violation for alcohol, we strongly urge you to find a location as soon as you can to provide a breath sample that will nullify the false reading. You should also keep a notebook in the vehicle and write down anything to support your case should you be improperly violated.

BAIID VIOLATIONS: BAIID violations are classified as “minor” and “major” violations:

Major Violations:

  • Rolling retest violation: Failing to take the retest when prompted by the BAIID; or the random retest detects a BAC of .025 or higher, and there is no sample with a BAC of less than .025 within 5 minutes.
  • An arrest or conviction for drunk and/or drugged driving.
  • Tampering or circumventing with the BAIID.
  • Three minor violations within a monitoring period.
  • Removing the BAIID without having another device installed within 7 days.
  • Operating a vehicle without a properly installed BAIID.

VIOLATION CONSEQUENCES: Minor violations will result in a 3-month BAIID extension. Major violations will result in the immediate reinstatement of your original driver’s license revocation/denial. You may appeal that action to the Office of Hearings and Administrative Oversight within 14 days and should consult with a lawyer if you find yourself in this position.

Go for the win the first time!

We take the time to learn each client’s unique case history and work on tailoring each case to that individual’s circumstances. We believe in each client’s cause and fight aggressively to get petitioners back on the road. Our office has a strong record of winning cases like this. We have a proven formula that gets results.

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Introduction

This ABDO LAW publication is based upon our extensive experience handling drunk driving cases  in all Macomb County District Courts.

For starters, I would say that 90% of all first time drunk driving offenses are reduced to “impaired driving” and no jail is imposed. A restricted license is issued by the Secretary of State which allows driving on. a restricted basis for 90 days.  A person may obtain a “picture license” after the 90 day restricted period expires. The Michigan Criminal Jury Instruction (MCJI 15.3) defines impaired driving as follows:

To prove that the defendant operated while visibly impaired, the prosecutor must prove beyond a reasonable doubt that, due to the [drinking of alcohol / use or consumption of a controlled substance / use or consumption of an intoxicating substance / use or consumption of a combination of (alcohol / a controlled substance / an intoxicating substance)], the defendant drove with less ability than would an ordinary careful driver. The defendant’s driving ability must have been lessened to the point that it would have been noticed by another person.

Actual Intoxication is irrelevant with BAC .08% or .17% or any presence of a controlled substance

When a person is arrested for any driving under the influence (by alcohol or drugs) in Michigan, the police will ask the person to take a chemical test to determine the extent of alcohol or presence of drugs within the blood. A person’s blood, urine and breath may be tested to determine the person’s blood alcohol content (BAC) or drug consumption upon request by the arresting law enforcement agency. The test results are admissible in court proceedings to establish legal intoxication should the person be charged with operating while intoxicated or impaired driving. In Michigan, a person is considered to be legally intoxicated (OWI) if the blood alcohol test is .08% or greater. Elevated blood alcohol of levels of .17% or greater will support enhanced criminal charges known as “high blood alcohol content” or “super drunk”.   The legal intoxicated limits in Michigan are:

You may still be charged with impaired driving if you test below .08!

There is no automatic presumption that a person is “impaired” or “intoxicated” when the test results fall below .08. However, a person that can’t hold their liquor can still be charged with impaired driving, or drunk driving, even if the BAC result comes back below .08. The test result can be used as evidence of alcohol consumption. In addition, the police officer, or other witnesses, may provide testimony at trial regarding any conduct or objective signs of impairment or intoxication. Objective signs of impairment may include the following: odor of alcohol coming from the driver, red, watery eyes, erratic driving (weaving) and slurred speech. In addition, the police assess a driver’s ability to perform various field sobriety tests. Field sobriety tests are designed to test a driver’s balance and motor skills. Police may ask a driver to perform tasks such as walking heel-to-toe in a straight line, standing on one leg, or reciting the alphabet backwards. In addition to the testimony of the police or witnesses, the BAC test results are also admissible in evidence at trial to show alcohol consumption.

Blood Alcohol Content (BAC) Charts and Graphs

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Blood alcohol content (BAC) charts are a worthy source of information to calculate the amount of alcohol consumption that is required to be considered legally intoxicated. These charts provide a fairly accurate estimate of the amount of alcohol within a person’s blood based upon two key variables; body weight and the number of drinks consumed. However, the charts do not take individual metabolism rates into consideration. Metabolism can be affected by several factors, such as body temperature, the type of alcoholic beverage consumed, and the amount and type of food consumed.  BAC Reference Chart

ESTIMATION: How long does it take for alcohol to be eliminated from your system?

The normal body will metabolize alcohol between .012 percent and .016 percent per hour. Numerous variables can influence the elimination rate of alcohol in the human body. Most charts that I have seen apply an elimination rate of .015 per hour. Therefore, a male weighing about 175 pounds who consumes 6 beers, containing 4.5% alcohol, within 3 hours would register a blood alcohol content of .08. It would take approximately 1 hour after the last alcoholic beverage was consumed to register less than .08 and it would take approximately 5 hours (0.0) to be completely sober.

Factors that affect alcohol elimination rate

The passage of time is the only way that alcohol will be eliminated from the human body. However, the elimination rate, or speed of elimination, is also dependent upon:

  • Medications: Many prescription and over-the-counter meds have dangerous interactions with alcohol. Ask your doctor whether drinking is safe for you if you take any medications.
  • Sex: Studies have shown that women take longer than men to process alcohol.
  • Age: As we age, the speed of alcohol processing slows down.
  • Body size: The less you weigh, the less water you have in your body. Alcohol goes into the water in your blood — but if you have less water, your blood alcohol concentration (BAC) will be higher. Smaller people can drink the same amount of alcohol as larger people but have a higher BAC.
  • Health conditions: Kidney, liver and stomach conditions make it harder for your body to process alcohol.

How long can tests detect alcohol in the body?

When it comes to “passing” an alcohol test, the longer the period of time that has expired, the better! More sensitive or higher quality tests can pick up smaller amounts of alcohol after a longer period of time.  In general, this is the maximum amount of time tests can detect alcohol after you consume it:

  • Blood test: 12 hours.
  • Breath test: 24 hours.
  • Saliva test: 48 hours.
  • Urine test: five days.
  • Hair test: 90 days.

Should I refuse to take a breath or blood test?

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If a person refuses to take the breath, blood or urine test which is requested by the police, the following sanctions will be imposed:

  • The police will obtain a court order for a blood sample to test for drugs and alcohol.
  • The person loses his or her right to have an independent urine or blood test conducted.
  • 6 points will be added to the driving record
  • License suspension will be imposed for 1 year, subject to an appeal to circuit court.
  • Drunk driving charges will be filed in the court system.
  • Additional license sanctions will be imposed upon conviction for the underlying drinking and driving offense.

Michigan Implied Consent Law (Michigan Compiled Law 257.625c)

Michigan’s Implied Consent law provides that a person arrested for operating a vehicle while intoxicated or impaired by an alcoholic liquor, a controlled substance, or other intoxicating substance or a combination thereof is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in his or her blood or urine or the amount of alcohol in his or her breath.

Police May Obtain a Court Order for Blood Test

The police may obtain a court order for a blood test when confronted with a suspect that refuses a chemical test offered by the police.

Suspect’s Right to a Secondary or Independent Test

The right to take an independent test of your own choice (blood, breath or urine) is conditional upon first submitting to the test which is offered by the police. The right to an independent test is lost should a person that is arrested for operating while intoxicated refuse the test offered by the police.

Implied Consent Hearings: Sanctions for Unreasonable Refusals

As I already mentioned, the police may obtain a court order for a blood test when a person refuses to voluntarily submit to a breath, blood or urine test. This means that the person will still face operating while intoxicated criminal charges when the blood test result is returned to the police from the testing facility. In addition, the person who has refused an alcohol test faces license sanctions by the Secretary of State.

A person that refuses the chemical test offered by the police is given an opportunity to an administrative hearing (aka: implied consent hearing) before a Secretary of State referee to explain the circumstances of the refusal. MCL 257.625f limits the issues appealable at a hearing to the following:

1. Whether the peace officer had reasonable grounds to believe that you committed a crime described in MCL 257.625c(1).
2. Whether you were placed under arrest for a crime described in MCL 257.625c(1).
3. If you refused to submit to a chemical test upon the request of the officer, whether the refusal was reasonable.
4. Whether you were advised of your rights under MCL 257.625a
Refusals based upon failure to understand the law are not considered reasonable since we are dealing with an “implied consent” law. Again, the implied consent law means that you consent to the test by accepting the privilege to operate a vehicle in the State of Michigan. Other common refusals are known as technical refusals. A technical refusal usually means that the suspect gave an insufficient sample. An insufficient sample may occur when someone tries to fool the machine by not placing their lips tightly on the breathalyzer straw or by providing a soft or side blow into the machine.

An attorney should be retained for representation at the implied consent hearing to fully explore all possible defenses. If the police officer fails to appear, or did not follow the testing protocol and procedure, the implied consent hearing will be resolved in favor of the petitioner.

A person that loses an implied consent hearing faces license suspension for a period of 1 year and 6 points is placed on the driving record. A second refusal within 7 years results in a suspension of 2 years. This is a separate consequence from any subsequent convictions resulting from the traffic stop.

Implied Consent Suspension May be Appealed in the Circuit Court Based Upon Hardship or Legal Grounds

If you lose your implied consent hearing, you may file an appeal in the court system on the following grounds.

Appeals based upon hardship: As I mentioned, you face suspension of your license for 1 year upon losing first implied consent hearing. A person facing a first time implied consent suspension has the right to file a circuit court appeal to request a restricted license based upon need or “hardship”. A hardship appeals requires a showing that a person needs to operate a vehicle for employment or education and both of the following exist:

  • A mass transit system is not available to provide the necessities of transportation, and,
  • No other person with in the household of the petitioner can supply transportation.

An appeal based upon hardship is the most common type of implied consent appeal that we file on behalf of clients. Upon winning a hardship appeal, a restricted license is granted for remaining duration of the implied consent suspension. Hardship appeals are filed in the circuit court where the underlying offense occurred. In addition, most circuit court judges will require a substance abuse evaluation for the hardship appeal. The c

Appeals based upon legal grounds: Any person may appeal an implied consent suspension based upon legal grounds. An appeal based upon legal grounds means that you are asking a circuit court judge to overrule the decision of the Secretary of State referee because:

  • Made upon unlawful procedure resulting in material prejudice to the petitioner.
  • Not supported by substantial, material, and competent evidence on the whole record.
  • Arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.

Practical Considerations Based Upon Experience Handling Drunk Driving Cases in Macomb County

The following are some practical considerations regarding our vast experience handling drunk driving cases for more than 40 years:

  • Most drunk driving cases (90%) are resolved by a plea bargain rather than jury trial.
  • First offenses are usually reduced to operating while impaired.
  • Jail is rarely imposed for a first time DUI or impaired driving conviction.
  • Insurance costs will increase substantially for any drinking/drugged driving conviction.
  • Jail is mandatory for a felony (third offense) conviction for a minimum of 30 days, not 1 year.
  • High BAC or Super DUI (.17% or greater) can also be reduced to impaired driving but may require a deviation request.
  • Getting a drunk driving reduced to a non-drinking offense, such as careless driving, is possible but difficult and rare.
  • A drunk driving or impaired driving conviction will preclude travel into Canada (see criminal inadmissibility).
  • State of Michigan sanctions upon conviction for a drinking/drugged driving offense (points, license sanctions and driver responsibility fees are mandatory and not negotiable to lesser amounts or periods of time).

Here are just a few factors that can have an impact on any 1st, 2nd or 3rd time drunk driving case:

  • Was the test result .17% or greater (resulting in a charge of High BAC or Super DUI)?
  • Was there an accident resulting in personal injuries or property damage?
  • Does the offender have any prior criminal record involving substance abuse or alcohol?
  • Was the offender cooperative with the police?
  • Does the offender have any prior drunk driving or impaired driving convictions?
  • Did the offender commit any other offenses along with the offense of drunk driving such as fleeing the police or resisting arrest?

The potential sentence that can be imposed for a drunk subsequent drunk driving (second offense and third offensee) is greater than that which can be imposed for a first time offense.

 Penalties for OWI 1st, OWI 2nd, OWI 3rd

 

FIRST OFFENSE:  What happens if this is my first offense for drunk driving?  First time offenders charged with “operating while intoxicated” can expect the prosecutor to agree to reduce the charge to the lesser offense of “operating while impaired”.  This is true in more than 90% of the first offense cases that we have handled in the Macomb County District Courts assuming that there are not any egregious facts or circumstances associated with an individual’s first time drunk driving offense.  Negotiations to seek a plea bargain or reduction can begin as soon as an attorney is hired and are concluded at a pretrial conference or other later stage in the proceedings. I can say that our firm has never had a first time offender get jail time in Macomb County. The following penalties are typically associated for a first offense “operating while impaired”:

  • Fines and costs of $1,000.00 or more.
  • Mandatory substance abuse assessment.
  • Probation for period of 1 year which may be reporting or non-reporting.
  • Random alcohol and drug testing in the discretion of the sentencing Judge.
  • Possible counseling or attendance of 1 or more short substance abuse programs in the discretion of the sentencing Judge.
  • Restrictions on out-of-state travel, subject to modification.
  • MANDATORY: License restrictions for 90 days (employment, school, medical, court ordered activities allowed).
  • MANDATORY: 4 points placed on driving record.

SECOND OFFENSE:  What happens if this is my second offense for drunk driving?

A conviction for a DUI second offense carries greater consequences within the Court system and by the State of Michigan. It is first important to explain the three (3) different types of “second offense” scenarios that a client may be facing:

  • Prior DUI within 7 years: A true second offense is one that occur within 7 years of a prior drinking/drugged driving conviction. An offender that is convicted of a true second offense OWI within 7 years of a previous offense, or who gets a third offense reduced to a second offense, faces the following:
    • Probation for up to 2 years.
    • Possible jail, community service, vehicle immobilization.
    • Random testing, longer term counseling,
    • MANDATORY license revocation for a minimum of 1 year (NO DRIVING).
    • MANDATORY: 6 points placed on driving record.

    This does not mean that all second time offenders get jail. In fact, second time OWI offenders can avoid jail by being proactive. By being proactive, I mean getting into a substance abuse counseling, attending AA meetings, attending on-line substance abuse classes. Lawyers that specialize in drunk driving cases will be able to provide you with local resources to get help.

  • DUI 3rd reduced to DUI 2nd: Another second offense scenario exists where the offender is charged with a third offense (felony) but the charge is reduced to a second offense (misdemeanor). ABDO LAW has previously published an article which covers a third lifetime offense for drinking/drugged driving.  Please refer to the link for further information regarding third time/felony DUI.
  • Prior DUI more than 7 years old:  Another second offense situation exists where the offender has a prior drinking/drugged driving conviction that is more than 7 years old. An offense that is greater than 7 years old cannot be used for purpose of sentence enhancement. However, it may remain on a person’s record and be visible to the prosecutor, probation officer and Judge.An offender that has a prior offense which is more than 7 years old is not “getting away scot-free” but will avoid the mandatory license revocation component and will face sentencing under the first offender laws with some concern placed upon the prior record of the offender.  Generally, older offenses have less impact than more recent offenses. For example, an offense which is 8 years old will be more relevant than one which is 20 years old.
  • Michigan Secretary of State link for drunk driving first, second and third maximum penalties.

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Romeo: 42nd District Court Division 1

Above, is a map of Macomb County with a geographical breakdown of the 9 district court borders. The 42nd District Court-Division 1 is located in the City of Romeo. It is often referred to as the Romeo Court. The court has jurisdiction over a greater area of land than any other district court in Macomb County and serves the following northern Macomb County communities: Romeo, Washington Township, Armada Village, Armada Township, Richmond, Richmond Township, Memphis (south of Boardman Rd), Ray Township and Bruce Township.

New Baltimore: 42nd District Court Division 2

The 42ndDistrict Court Division 2 is located in the City of New Baltimore and it serves the communities of New Baltimore, Chesterfield Township, Village of New Haven and the Lenox Township.

Traffic and Criminal Caseload of the 42nd District Courts

The 42-1 District Court, which is the one located in Romeo, and the 42-2 District Court, located in New Balimore, have jurisdiction over civil disputes not exceeding $25,000.00, and the following other legal proceedings:

Arraignments: All misdemeanor and felony arraignments occur at the district court level. Arraignment is the first stage of a criminal case following authorization of a criminal charge.

Misdemeanors: The district courts have complete jurisdiction over misdemeanors. Misdemeanors are crimes punishable by up to one year in the county jail and/or fines up to $1,000.00.

Felonies: All felony cases begin in the district court for arraignment, probable cause conference and preliminary examination. Felony proceedings beyond preliminary examination are handled in the higher circuit unless resolved in the district court by a reduction to a misdemeanor.

Traffic: The district courts have complete jurisdiction over traffic tickets. Getting a lawyer to fight a traffic ticket to avoid points and higher insurance premiums is a wise investment.

Drunk driving, domestic violence and retail fraud are some of the most prevalent cases on the criminal dockets at the 42-1 District Court and the 42-2 District Court. Judge William Hackel presides over the 42-2 District and Judge Andary presides over the the 42-1 District Court.  Because of our consistently high criminal caseload at these courts, we consider both 42nd District Courts to be “home-town” courts. This ABDO LAW publication will focus on our experience representing clients charged with drunk driving, domestic violence and retail fraud cases at the 42nd District Courts.

Drunk Driving 

Getting nailed for drunk driving can be an ordeal no matter where it happens. However, it does make a big difference if you get a local Macomb County DUI/OWI lawyer that is experienced with the court and the judge assigned to your case.

Nationwide, less than 10% of all drunk driving cases wind up going to trial. This statistic holds true for drunk driving cases that are heard at the 42nd District Courts located in Romeo and New Baltinore, as well as every other district court in the counties of Macomb, Oakland, Wayne and St. Clair. However, I can tell you that if you get an OWI/DUI in the 42-1 District (Romeo Division) or the 42-2 District Court (New Baltimore Division), you are looking at the best-case-scenario. By best-case-scenario I mean that you are looking at getting the charge REDUCED, NO JAIL and NOT LOSING YOUR LICENSE. This is true for the drunk driving cases that we have handled for FIRST TIME OFFENDERS in the 42-1 and 42-2 District Courts from 2020-2021 where we were able to get every OWI and High BAC (.17 or more) dropped down to a lower charge with NO JAIL.  There are a few differences in the way things are done in the sister courts located in Romeo and New Baltimore. The Romeo Court is more likely to require supervised probation and alcohol testing for first offenders than New Baltimore. However, Romeo’s Judge Andary will consider early termination of probation and modification of random testing for individuals that are have been compliant.

The following are your most common options if you are charged with drunk driving

  1. Hire an attorney to negotiate the best possible plea bargain and advocate for a minimal sentence. Note: even felony drunk driving third offense can potentially be reduced to a misdemeanor!
  2. File motions to seek dismissal or reduction in the charge(s) based upon:  lack of evidence of intoxication or impairment, mistakes as to testing protocol, illegal traffic stop, lack of evidence to support the element that vehicle was “operated” by the defendant.
  3. Conducting a trial before the judge or a jury.

As I mentioned, more than 90% if OWI/DUI are resolved when an attorney can negotiate a favorable outcome that is far better than risking a guilty verdict to the higher original charges at trial. Because a local Romeo or New Baltimore drunk driving attorney knows the local polices, politics and procedures, you should never plead guilty as charged without getting sound legal advice. Watch your ass if you are getting your legal advice from the cop that arrested you and said that you don’t need a lawyer. You should also know that the court personnel are forbidden to give legal advice by every district court in Macomb County.

Link: extensive coverage of DUI/OWI cases in Macomb County.

Shoplifting-Retail Fraud

The terminology given by the Michigan Penal Code for the crime of shoplifting is “retail fraud.” Intentionally changing price tags, concealing merchandise and failing to scan merchandise are all forms of retail fraud. The offense of retail fraud may be charged as a misdemeanor or a felony. In Michigan, a misdemeanor is defined as an offense that is punishable by not more than 1 year in the county jail while a felony is a criminal offense punishable by more than 1 year – up to life in prison. The dollar amount of underlying theft and/or the prior retail fraud criminal record of the offender are the determining factors as to whether a person is charged with a misdemeanor or felony. The penalties for retail fraud are as follows:

First degree retail fraud: Theft of property of $1,000.00 or more constitutes retail fraud in the first degree, which is a felony under Michigan law, and carries up to 5 years in prison, or a fine of not more than $10,000.00 or 3 times the value of property stolen.

Second degree retail fraud: Theft of property of $200.00 up to $1,000.00 constitutes retail fraud in the second degree and carries up to 1 year in county jail, up to $2,000.00 fine or 3 times the value of property stolen.

Third degree retail fraud: Theft of property under $200.00 constitutes retail fraud in the third degree and carries up to 93 days in jail, up to $500.00 fine or 3 times the value of property stolen.

Judge Jennifer Andary and Judge William Hackel will go out of their way to give someone a second chance. Normally, almost every misdemeanor, including retail fraud, can be favorably resolved in the 42-1 District and the 42-2 District.  To be specific, both courts will take a retail fraud under advisement or set a deferral period. Upon successful completion of the deferral period the case is DISMISSED. During the deferral period, the offender is required to comply with any of the following conditions ordered by the court:

  • Attend appropriate program ranging from a 1-day class to a long-term substance abusecounseling program.
  • Possible drug/alcohol testing.
  • No contact with the retail establishment where the offense occurred.
  • Payment of combined fines and costs approximately $1,000.00.
  • Possible community service.

If you are charged with a felony, ask a local Macomb County criminal defense lawyer how it is possible to get it reduced to a misdemeanor, avoid jail and avoid a felony record.

Link: extensive coverage of retail fraud cases in Macomb County

Domestic Violence and Assault

The crimes of domestic violence and assault & battery are found in MCL 750.81. 

Most of those that we represent for domestic violence or assault have never been in trouble with the law and are looking for a way to get out of the system Scott-Free without a domestic violence conviction. An outright dismissal of a domestic violence or assault crime in Macomb County is possible when the victim does not want to prosecute. This is not as easy as it sounds and the services of an experienced local Macomb County criminal defense attorney can make a huge difference between getting a case dismissed and winding up with a big fat legal mess.  A local Macomb County domestic violence lawyer will formulate an individualized strategy to deal with the following potential problems that may arise:

  • How the victim should respond to the prosecutor and victim’s rights advocate.
  • Whether the victim will be held in contempt of court for failing to appear for a court date or trial.
  • How to deal with the prosecutor that intends to use the police report and witness statements when the victim does not cooperate.
  • How to avoid getting hit with witness tampering and/or obstruction of justice accusations.

Big 3 Options if you are charged with Assault or Domestic Violence: There are 3 options in the criminal justice system for a person charged with an assault crime or domestic violence which are as follows: 

  1. Seeking a dismissal when the victim adamantly does not want to testify or appear against the accused party.
  2. Pleading pursuant to MCL 760.4a which will result in a dismissal after a term of probation.
  3. Conducting a trial before the judge or a jury.

Link: extensive coverage of assault and domestic violence cases in Macomb County

 

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ABDO LAW has several publications dedicated to “frequently asked criminal law questions and topics”. This publication is committed to the topic of  pretrial conferences and probable cause conferences in Macomb County District Courts. The signficance of pretrial conferences and probable cause cannot be ignored. The vast majority of criminal cases are resolved by a plea bargain during these stages of the criminal process. According to the Bureau of Justice Statistics, about 95 percent of criminal cases in the state and federal system are disposed of through the process of plea bargain.

What is a pretrial conference? A probable cause conference?

Pretrial conferences are scheduled in both criminal and civil cases. For criminal misdemeanor cases, a pretrial conference is a meeting that is scheduled by the court and attended by the defendant’s attorney and the prosecuting attorney.   The major purposes of a pretrial conference and probable cause conference is to facilitate resolution of a case, management of a case for trial or management of a case regarding other housekeeping matters (listed below).  Generally, the Judge and witnesses are not directly involved in the conference process. However, the victim will be advised regarding the outcome of a pretrial conference and most prosecuting attorneys require the consent of the victim to any plea bargain to reduce or amend criminal charges. In addition to negotiations and plea bargaining, there may be pretrial hearings on the validity of confessions, searches, identification, etc. Other matters covered at the pretrial conference include motions and requests to determine whether evidence will be admitted or suppressed at trial. In truth, most judges hate trials and will encourage the litigants to strive for case resolution. If a case is not resolved, the court may schedule additional pretrial conferences to give the parties an opportunity to fully explore the possibility of plea bargaining. Getting a criminal charge dismissed is also a possible pretrial conference result. 

In criminal matters, a pretrial conference is scheduled for every misdemeanor and a probable cause conference is scheduled or all felony cases soon after a case is filed with the court and a case number is assigned.  In Macomb County, criminal pretrial conferences and probable cause conferences are held soon after the arraignment. Depending on the policy of each court, the pretrial conference will either be held remotely (ZOOM) or LIVE at the district court location  (links to Macomb County District Courts). Conferences for felony matters may occur on the date scheduled for the probable cause conference and the  preliminary examination,

The direction of a criminal case is often determined after a pretrial conference. Pretrial conferences are a vital tool, which a skilled criminal defense lawyer will utilize for several reasons:

  • Promote dismissal of the charge(s) under certain circumstances
  • Negotiate a favorable plea bargain
  • Use a probable cause conference to negotiate reduction of a felony to a misdemeanor
  • Address bond, bond conditions and/or release from jail
  • Adjourn the pretrial conference to seek a deviation when strict policy obstructs a plea bargain
  • Request modification of no-contact order (domestic violence cases)
  • Negotiate restitution when financial losses are claimed
  • Obtain the input of the presiding judge regarding a technical matter or a special request such as a specific sentence.
  • Size up the prosecution’s case, witnesses and evidence
  • Request copies of discovery (police reports, videos, chemical test results)
  • Schedule one or more motion dates to attack the evidence, or to weaken the case
  • Set future pretrial conference date to promote resolution of a case
  • Schedule the case for a bench or jury trial

Factoid: A person who is accused of a crime is not considered a “defendant” until that person is formally charged with a crime. Our criminal defense lawyers never refer to our clients as “defendants” when speaking to the court or prosecutor because of negative connotations. We prefer to refer to our clients by their given name or “the accused”.

What is the attorney’s role at a pretrial conference?

The best way for me to summarize an attorney’s role at a pretrial conference is by mentioning a few passages from the Michigan Rules of Professional Conduct. A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

  • As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.
  • As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.

What is the defendant’s role at the pretrial conference?

Unless otherwise excused, attending the pretrial conference is mandatory at all courts located in the counties of Macomb, Oakland, Wayne and St.Clair. Prior to the pretrial conference, the criminal defense attorney works together with the defendant to set goals and/or lay out solid strategies which will lead to productive negotiations. At the conclusion of a pretrial conference, the defendant will be advised of the results which may lead to final resolution of the case. The consent of the victim may also be required before the prosecuting attorney can offer a plea bargain. If the client accepts the negotiated result and the victim does not object, the defense attorney and the defendant will appear before the judge to spell out the terms of the plea bargain on the court’s record. If necessary, the pretrial conference may be adjourned to further work up a case or to explain the outcome of a pretrial conference in greater detail to the defendant outside of formal court proceedings. Most courts are willing to grant additional pretrial conference dates at the request of either the defendant’s attorney or the prosecuting attorney.

Pretrial Conference: Now Scheduled Live or Remote

Prior to the pandemic of 2020, all pretrial conferences were scheduled at the court building where the case was filed.  However, during the pandemic, the courts evolved to allow pretrial conferences to be held remotely via on-line computer platforms such as ZOOM. (click here for ZOOM SUPPORT) Each court has its own policy as to whether a hearing will be scheduled “in person” or “remotely”.

After the pretrial conference, the defendant and his or her attorney will appear in open court and inform the Judge of the results. The Judge has the final say regarding the outcome of a pretrial conference. For example, certain plea bargains may be against the Judge’s own policy and may require some persuasion and legal authority. In addition, the Judge may show frustration when the parties are attempting to adjourn (delay) cases. Since adjournments tend to clog court dockets, the Judge will require that “good cause” be shown.

Our experience is that a pretrial conference is an invaluable opportunity to advocate on behalf of our clients. Advocacy includes elements of assertiveness and diplomacy. We often can achieve a disposition after the pretrial conference. This may result in a plea bargain, which may have the effect of dismissing the criminal charges in exchange for completion of probation. It is our job to protect our client’s rights and seek the best possible outcome, which may mean saving a client from being exposed to egregious facts and the expenses of an unnecessary trial. The defendant remains the ultimate decision-maker when presented with options after the conclusion of a pretrial conference.

How are drunk driving, retail fraud and other prevalent cases resolved at the pretrial conference?

We know that being charged with a crime can be a life changing event.  Based upon our experience, we look for ways to get your life back on track and get you out of the criminal justice system with the best result. In Macomb County, the majority of misdemeanor cases on the docket consist of drunk driving, retail fraud, domestic violence, driving while license suspended, leaving the scene of an accident, and disorderly conduct. Some of the more prevalent felony cases are assault with a dangerous weapon, uttering & publishing, embezzlement, possession of analogues, and carrying a concealed weapon. The following are possible scenarios for these prevalent criminal cases and how they can be favorably resolved during the pretrial conference or probable cause conference stage of a criminal case:

  • Drunk Driving: Seeking a reduction to impaired driving or a non-criminal offense under exceptional circumstances.
  • Super Drunk Driving/.17 or more: Seeking a reduction to impaired driving when a client can demonstrate low likelihood to be a repeat offender.
  • Retail Fraud: A first time offender can expect to get the charge deferred and dismissed after a short period of probation.
  • Domestic Violence: First we try to find out if the victim wants it dismissed and then look for ways to get the case dropped.
  • Driving while License Suspended: Seek reduction of the charge to a lower offense to avoid points and avoid additional license suspension.
  • Leaving the Scene of an Accident: Avoid 6 points associated with this offense, avoid jail, and get the charge reduced.
  • Disorderly Conduct: Obtain a deferral and dismissal after a short period of probation.
  • Felony/Assault with a Dangerous Weapon: Reduce to a misdemeanor unless the victim insists upon dismissal and is not likely to cooperate with the prosecutor.
  • Felony/Uttering & Publishing: U & P is a felony that can carry up to 14 years in prison. Avoiding a felony record and avoiding jail is entirely possible when we can offer payment of full restitution.
  • Felony/Embezzlement: Embezzlement over $1,000.00 is a felony that can carry up to 5 years in prison. Getting a felony record is unacceptable. Payment of full restitution and negotiating reduction to a misdemeanor is a realistic goal.
  • Possession of Analogues: Possession of analogues is a felony. Pursuant to MCL 333.7411, all drug possession crimes can be dismissed and the record sealed when resolved pursuant to MCL 333.7411.
  • Felony/Carrying a Concealed Weapon: CCW can carry up to 5 years in prison. A realistic goal in handling CCW cases is to get the felony reduced to a misdemeanor such as improper transport of a firearm.


Some other important things to know about pretrial conferences

Macomb County Court Links:

37th District Court: Warren & Centerline

38th District Court: Eastpointe

39th District Court: Roseville & Fraser

40th District Court: St. Clair Shores

41A District Court Sterling Heights Division

41A District Court: Shelby-Utica-Macomb Township

41B District Court: Clinton Township-Harrison Township-Mt. Clemens

42-1 District Court: Romeo-Washington Township-Armada-Bruce Township-Ray Township-Richmond-Memphis

42-2 District Court: New Baltimore-Chesterfield Township-Lenox Township-New Haven

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According to 2019 Michigan State Police records – 4,933 crimes were reported to the Clinton Township Police. The majority of crimes reported were for larceny, retail fraud (shoplifting), operating while intoxicated (OWI), OWI with a high BAC (.17 or more), domestic violence and assault crimes. The jurisdictional geographical boundaries of the 41B District Court include Clinton Township, Mt. Clemens & Harrison Township. 

41B District Court Information, Location, Zoom Identification

The 41B District Court  has jurisdiction to handle civil, traffic and criminal cases arising in Clinton Township, Harrison Township and Mount Clemens.

  • 41B District Court Address: 22380 Starks Drive, Clinton Township, Michigan 48038
  • Map: Link to map
  • Phone: 586-469-9300
  • Zoom Administrator ID: 218-957-8812
  • Magistrate Zoom ID: 843-970-5882

Clinton Township has its own police department while Harrison Township and Mount Clemens employ the Macomb County Sheriff’s Department for police services. The 41B District Court is served by 3 judges: Judge Sebastian Lucido, Judge Jacob Femminineo and Judge Carrie Lynn Fuca. In 2020, Judge Femminineo replaced long standing Judge Linda Davis. Judge Linda Davis is now active in the organization that she spearheaded, Families Against Narcotics (FAN).

41B District Court has an expansive jurisdiction with east to west borders from Lake St. Clair in Harrison Township to Hayes Road, and north and south borders from 14 Mile Road to Hall Road. The area has a diverse mixture of established and newer real estate, shopping centers, major retailers (Target, Walmart, etc.) Macomb County Community College, and the Partridge Creek Mall. The Macomb County Sheriff’s Department and the Clinton Township Police are the predominant law enforcement agencies in the area.

More than 10% of the total number of crimes in Macomb County are reported in 41B District Court boundaries. In 2019, there were 41,683 crimes reported in Macomb County with 4,933 being reported through the Clinton Township Police Department and several more reported to the Macomb County Sheriff Department.

We are frequent practitioners in the 41B District Court with more experience in that jurisdiction than any other attorneys in Macomb County.  In our opinion, the 41B District Court will give a person a second chance and has a philosophy to encourage rehabilitation and therapeutic justice rather than jail and punitive measures. 

Hire a lawyer now! Court personnel cannot give legal advice and the prosecutor does not represent you!

The court staff, the prosecutor and judicial officers are forbidden by law to provide you with legal advice. If you are facing a criminal or drunk driving matter in the 41B District Court, you need a skilled Clinton Township criminal defense lawyer to fight for your rights and get your life back on track. The 41B District handles a wide range of the criminal cases that occur in Clinton Township, Harrison Township and Mount Clemens.  The following is list of some of the most prevalent misdemeanor and felony cases on the 41B District Court’s criminal docket:

Crimes involving firearms are also on the rise throughout Macomb County. Gun crimes include carry a concealed weapon, brandishing a firearm and possession of a firearm under the influence.

Dismissals, felonies reduced to misdemeanors: There’s always a way to resolve a legal predicament. Just because you are guilty does not mean that you will be found guilty. In many cases, there’s a way to get out of the criminal justice system unscathed and without a conviction or by getting a felony dropped down to a petty offense.  An attorney can explain how all of these special provisions of law are utilized in the 41-B District Court which can result in a dismissal of a criminal matter:

Multiple criminal offenses and drunk driving are eligible for expungement

Michigan has adopted Clean Slate legislation that enables eligible individuals to get multiple offenses, and one drunk driving offense, expunged. For the first time ever (effective February 19, 2022) an individual can file a petition to get any of the following offenses for drinking or drugged driving expunged:

  • Operating While Intoxicated (OWI)
  • Operating While Visibly Impaired (OWVI)
  • High BAC .17 or more or Super Drunk Driving
  • Minor with any BAC (Zero Tolerance)
  • Operating with the Presence of a Controlled Substance conviction

The following driving offenses are not eligible for expungement:

  • OWI with a child (passenger under 16)
  • OWI or Impaired Driving causing serious injury
  • OWI or Impaired Driving causing death.

Retail Fraud Cases in the 41B District Court: DISMISSED!

The offense of retail fraud, also known as shoplifting, can occur when an individual intentionally does any of the following at a retail or business establishment:

  • Conceals property with the intent to steal
  • Changes a price tag or packaging of an item
  • Attempts to defeat the checkout scanner

If you are charged with retail fraud, chances are that you have not been in trouble before and had the money to pay for the goods. If a client is not a US citizen, we will take extra measures in our negotiations to AVOID DEPORTATION. Getting the best 41B District Court retail fraud lawyer is important if you want to keep your dignity, keep your case private, avoid deportation and get the charge dismissed with NO JAIL.

Domestic Violence

Are you being charged with domestic violence in the 41B District Court? Are other attorneys telling you to just plead guilty? Have you been told that you can’t get the no-contact order lifted? Does your significant other, spouse or other side want the case dismissed? If you are in this position, get a Macomb County domestic violence lawyer to explain how you can get the charge DISMISSED, can get the no-contact order lifted and will not be labeled with an assault crime.

Over 200 Charged with Operating While Intoxicated in the 41B District in 2019

There is always a consistently high number of OWI/DUI cases in the 41B District Court. From our experience, you are not looking at jail or losing your license for a first time drinking/drugged driving offense. In addition, if you are charged with a felony OWI/DUI (OWI Third), there is a good chance it can be reduced to a misdemeanor with the right 41B District Court drunk driving lawyers. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. Fortunately, the judges in the 41B District Court have a sentencing philosophy that encourages rehabilitation rather than incarceration.

If a person is charged with Super DUI (BAC .17 or greater), there is a good chance it can be reduced to a lower offense. Using local Clinton Township drunk driving defense lawyers that know the local policies, practices and prosecutors is your best bet if you are looking to get significant deal on any drunk driving case.

All of the 41B District Court Judges have been in private law practice 

The 41B District Court bench all had careers in the private sector running their own law practices. The 41B District Court Judges all know what its like to stand next to another person that is falsely accused of a crime or needs someone to fight for their rights. The 41B District Court is a court system that works with lawyers and those accused of crimes to deliver just and fair results.

From the moment that there is an arrest or a criminal investigation, you need to all of the protection that a local criminal defense attorney can offer. Getting a local Clinton Township criminal defense attorney that knows the system is the best place to start if you are looking to get out of the court system with the best possible outcome.

The 41B District Court Probation Department

It is within the judge’s discretion whether or not to place an individual on probation after being convicted of a criminal or drunk driving offense. For most criminal matters, there will be a period of probation imposed. The maximum period of probation that can be imposed for a misdemeanor is 2 years.  Probation may be non-reporting or require the individual to REPORT (to a probation officer. In certain situations, a skilled criminal defense lawyer can advocate for a short term of probation (3-6 months) or for NO PROBATION.

Probation Violations: The 41B District Court lists various situations that can result in a probation violation:

If you violate your probation for any reason, probation can be terminated, any deal or deferral can be taken away and jail can be imposed. The list below contains common reasons for a probation violation warrant.

  • Alcohol and drug testing violations (failing tests, missed tests).
  • Failure to appear for probation appointments.
  • Getting charged with a new criminal matter.
  • Failure to obtain permission to leave the State of Michigan.
  • Failure to provide current address to the probation department.
  • Failure to attend counseling or program as ordered by the Judge.
  • Failure to pay fines & costs by the due date.
  • Failure to pay restitution.

Probation Modification Hearings: In Michigan, probation can be imposed for up to two (2) years for a misdemeanor offense. While on probation, a person’s right to travel or consume alcoholic beverages can be restricted. Other rights can also be limited or denied while on probation. Probation is an alternative to jail but it also a restraint on personal freedoms and rights. If you are on probation and have been compliant, the 41B District Court Judges may consider modifying or terminating your probation. You will need to talk to an attorney about filing a motion to modify or terminate probation. There are three major reasons that clients ask us to file a motion to modify probation:

  1. Motion to terminate probation early.
  2. Motion to amend probation from reporting to non-reporting.
  3. Motion to amend probation regarding termination/reduction of alcohol/drug testing.

Isolated Incident, First Offender, Not Likely to Get Into Trouble Again: An attorney can advocate for lesser probation, non-reporting probation or a shorter period of probation for eligible offenders.

Traffic Violations in the 41B District Court: Reduced to Avoid Points and Record of any Conviction!

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 41B District Court. Gratiot Avenue, Metro Parkway, a stretch of I-94 and Hall Road all contribute to the traffic volume in the 41B District Court.  When resolving a traffic matter in the 41B 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. 

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Detroit Making a Comeback

Detroit is a comeback city with growth at every level. Detroit’s growth includes a real estate boom, renovations of historic structures, updated infrastructures, and new housing developments.  The downtown area and surrounding neighborhoods are experiencing an population influx which is likely to continue for several years to come.  The City of Detroit is also attracting visitors for entertainment and tourism from the suburbs, Canada, other states and countries. Places like the Eastern Market, Greektown, Midtown, Little Caesars Arena, the Fox Theatre, Belle Isle, the DIA casinos, festivals, concerts, and restaurants have become major attractions in the City of Detroit.  In addition, all of Detroit’s professional sports teams (Tigers, Lions, Red Wings, Pistons) have returned to downtown Detroit.

There are many dimensions to the City of Detroit. Detroit is known for its hard working and hard partying people. It is also a devoted sports town. Detroit is uniquely situated geographically with an international border shared with the Country of Canada which is divided by the Detroit River and accessible by crossing the Ambassador Bridge or Detroit/Windsor Tunnel . Detroit has 3 major casinos and hosts the International Auto Show each year.

The 36th District Court in Detroit is where criminal offenses which are classified as misdemeanors are resolved. A misdemeanor is defined as a criminal offense which can carry up to 1 year in jail. An offense that carries more than 1 year in jail is classified as a felony.

36th District Court is the busiest in Michigan

The 36th District Court is by far the busiest district court in the State of Michigan. It has a single location at 421 Madison, Detroit, Michigan 48226. There are 30 judges at this location that have demanding criminal, drunk driving and traffic dockets. Most misdemeanor and traffic matters are now handled remotely via Zoom. Here is a link to join any remote hearing which is scheduled via Zoom at the 36th District Court.

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Winding up in the 36th District Court can be an intimidating place without the guidance of an attorney. Dealing with security on the main floor, locating your court room and attempting to discuss your case with the prosecutor can be overwhelming and sometimes futile. By saying the wrong thing without proper representation, you could wind up having your case scheduled for jury trial and miss an opportunity to get out of the system.  If you find yourself in this position, getting experienced 36th District Court defense attorneys is crucial to navigate you through this major urban court system. Here are a few things that you should know up front about the 36th District Court:

  • Court employees and court officers are prohibited from giving any legal advice.
  • You are not allowed to bring your cell phone into the court building.
  • You will be required to appear for an arraignment and will be unable to make any progress without an attorney.
  • You will be required to appear for a pretrial conference if you are unable to resolve your case at the arraignment.
  • Your case will be handled by either the Wayne County Prosecutor or Detroit City Attorney for purpose of negotiations, plea bargaining and trial.
  • You will be required to pay all fines and costs on the date of your sentence.

There are very solid reasons why you should hire a lawyer and why court employees should never give legal advice. Employees of the court must remain neutral and cannot promote or recommend a particular course of action. Even though a court employee may have processed hundreds of similar types of cases, he or she is not in a position to know what is in a litigant’s best interest. Only litigants or their attorneys can make thatdetermination. In addition, court employees have an “absolute duty of impartiality.” A court employee can “never give advice or information for the purpose of favoring one court user over another.” Advising a party ‘what to do’ rather than ‘how’ a party might do what it has already decided crosses the line from impartiality to partiality, from providing permissible information to giving prohibited ‘legal advice’ or engaging in the unauthorized practice of law.”

Most prevalent crimes handled at the 36th District Court

Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 36th District Court. The following is list of the most prevalent cases that we regularly see on 36th District Court’s docket:

Offer to Engage or Solicitation of a Prostitute

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It is a crime in the State of Michigan to offer to engage another person to commit an act of prostitution. In plain English, this means that it is illegal to offer money for sex. The Detroit ordinance which makes it a crime to “offer to engage” another for an act of prostitution carries a mandatory jail sentence. Hiring an attorney that knows the 36th District Court system is your best option to AVOID JAIL and AVOID A CONVICTION FOR A SEXUAL CRIME.

What to expect at a bond hearing in the 36th District Court

If you are arrested or arraigned for a criminal matter in the 36th District Court, you will appear before either 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. 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.

Crime classification: Misdemeanor or Felony

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.  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. 

Economic and property crimes: Larceny, embezzlement, retail fraud and malicious destruction of property to name a few, are all crimes where the classification (felony or misdemeanor) and potential punishment is dependent upon the amount of property loss. For most property crimes, if the amount involved in $1,000.00 or more, it is classified as felony.

Case results in the 36th District Court

The outcome of a criminal case in the 36th 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

All these special provisions of law are possible in the 36th District Court which can result in the ultimate dismissal of a criminal matter:

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

Non-Resident or Canadian: If you reside outside of Michigan, consider getting an attorney that is experienced with the 36th District Court system and will provide you with efficient representation to get your life back on tract and get you out of the criminal court system!

Drunk Driving Cases in the 36th District Court

Based upon 2016 statistics compiled by the Michigan State Police, the Detroit Police Precincts reported numerous drunk driving cases in the City of Detroit. Law enforcement in the City of Detroit is also provided by the Wayne County Sheriff’s Department and the Michigan State Police. There was a total of 11,903 injury crashes in Wayne County with 648 involving alcohol, drugs or a combination of alcohol and drugs. Another 183 fatality crashes were reported with 76 involving alcohol, drugs or a combination of alcohol and drugs.

1st offense drinking and driving:  For most first time drinking and driving offenders, jail is not likely absent some other aggravating circumstances in the 36th District Court. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired’. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. 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 (discretionary)
  • Possible drug testing, alcohol testing, AA meetings (discretionary)
  • 4 points on driving record

Super Drunk Driving: If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain for a lower offense. Super DUI convictions will result in mandatory license suspension for 45 days followed by a restricted license for a period of 320 days with the requirement of a vehicle breathalyzer ignition interlock device (BAIID). The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of any drinking and driving offense, not just a Super DUI.

Repeat DUI Offender: 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 offense to reduce the likelihood of incarceration in almost every court.

Third Lifetime DUI = Felony: DUI 3rd is a felony/with a maximum penalty of 1-5 years in prison.  Felony matters begin in the district court and can remain in the district court for purpose of sentencing and probation ONLY if reduced to a misdemeanor. Felonies that are not resolved in the district court are handled in the Circuit Court after the probable cause conference or preliminary examination. Click here for more information on felony procedure.

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The “bill of rights” spells out the immunities and protections granted to citizens of the United States of America. On September 25, 1789, the First Congress of the United States proposed to the state legislatures 12 amendments to the Constitution.  The Second Amendment, the Right to Bear Arms, is contained within the Bill of Rights. The Bill of Rights also guarantees civil rights and liberties to the individuals such as freedom of speech, press, and religion.

The Rights of the Accused Party in a Criminal Matter 

The cornerstone of personal rights for an individual charged with any criminal offense can be found in the 4th, 5th, 6th and 8th Amendments to the United States Constitution.

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An alien (non-US citizen) faces deportation for certain crimes such as retail fraud or domestic violence. Among other steps, getting the crime dismissed or amended to a non-deportable crime is the  key to avoiding deportation.

What does INS stand for?

INS  is the abbreviation that stands for the United States Immigration and Naturalization Services. The INS is responsible for handling immigration and naturalization issues. The immigration arm of INS is responsible for the process of a foreign person, alien to the United States, to become a permanent citizen. Becoming a citizen is a complex process. A person that is found guilty of certain crimes may not only be denied citizenship but also face deportation.

What types of crimes can result in deportation?

An individual that is not a United States citizen (alien) may face deportation if convicted of a crime that constitutes either of the following:

According to federal laws, 8 U.S. Code 1227, an alien may be deported for the following: 

  • Crimes of moral turpitude: Any alien who is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status) after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.
  • Multiple criminal convictions: Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.
  • Aggravated felony: Any alien who is convicted of an aggravated felony at any time after admission is deportable.
  • High speed flight: Any alien who is convicted of a violation of relating to high speed flight from an immigration checkpoint is deportable.
  • Failure to register as a sex offender is deportable.
  • Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.
  • Retail fraud (shoplifting).

Can an alien that is convicted of drunk driving or impaired driving be deported?

A conviction of an offense in Michigan for operating while intoxicated (OWI) or impaired driving (OWVI) is NOT a crime that involves moral turpitude and is not deportable.

Can a person be deported upon being convicted of drunk driving or impaired driving?

Deportation is not imposed against an alien convicted of drunk driving or operating while impaired. However, a person convicted of drunk driving that has other criminal convictions may face deportation because of a bad criminal record. In addition, a drunk driving with other aggravating factors may result in deportation. Drunk driving that involves a serious personal injury or death are felonies and are deportable crimes.

Retail Fraud is a deportable offense

A crime involving moral turpitude (CIMT) is defined as an act that is depraved, dishonest, or vile.  A misdemeanor or felony may constitute a CIMT. Some examples are rape, fraud, murder, arson, and assault with the intention to rob or kill. A person may be deported if convicted of a CIMT within five years of admission to the US or if they commit 2 or more unrelated CIMTs at any time after they are admitted. A petty offense exception may apply if the penalty for the crime is less that 1 year.  In Michigan, the crime of shoplifting is called retail fraud. Retail fraud is a deportable crime in because it is a CIMT that involves dishonesty.

There are ways for an alien that is charged with retail fraud, or other CIMT or aggravated felony, to avoid deportation. The key is to get the CIMT charge amended to one that is a non-deportable crime. There are other measures that need to be taken to avoid the scrutiny of deportation scrutiny. Once the charge is reduced, the original police report cannot be used on the court record as a factual basis to establish the amended outcome.

Criminal charges can have a huge impact on immigration status. Immigration status can be changed Do not hesitate to hire a criminal defense lawyer that understands how to represent aliens facing criminal charges that can . You absolutely need to hire the best criminal defense lawyer if you are not a United States Citizen and you are  charged with a felony or crime involving moral turpitude!

The prosecutor’s consent is required to get a plea bargain, or to get the charge reduced or amended to an offense that does not require deportation. The prosecutor may also need to obtain the consent of the victim. There may be other steps that we would recommend to insure a soft landing which may include: attending a counseling program paying restitution to the retail establishment and obtaining character letters. We have had extremely favorable results representing aliens charged with a CIMT,  such as retail fraud or larceny,  by getting the CIMT dismissed and amending it to a non-deportable charge such as “disturbing the peace” or disorderly conduct.

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