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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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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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Blood alcohol content (BAC), Michigan State Police Statistics

Blood alcohol content (BAC) refers to the amount of alcohol which is estimated within a person’s blood as determined by a blood alcohol test.  Blood tests and breathalyzer tests are the most common methods for testing BAC. The Michigan State Police maintains statistics with respect to BAC testing, DUI convictions, average BAC levels and the number of convictions for those charged with a DUI offenses.  The statistics are further broken down for each county and each district and circuit court. In 2016, the Michigan State Police Drunk Driving Audit revealed the following statistics for those who submitted to a breath or blood test in Macomb County:

  • 2,182 tests were administered for breath or blood samples (breath tests accounted for 1,404)
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What is EtG?

Ethyl Glucuronide (EtG) is a metabolite of beverage alcohol (ethanol), which means that it is used by the body to break down alcohol in the system. According to the drugtestingnetwork.com, the presence of EtG is a conclusive sign of recent alcohol consumption.

What is an EtG Test?

The EtG test, which can be implemented by a Court for a variety of reasons, is able to detect alcohol in a person’s system when a standard breathalyzer is not sufficient. Ethyl Glucuronide is detectable for up to 80 hours after an individual stops drinking, but can vary depending upon the person’s metabolism and the amount of alcohol that was consumed.

The EtG Testing Process (provided by uatests.com, a testing facility)
EtG testing is a process similar to other lab-based drugs of abuse testing. The following steps are typically followed:
Step 1: A chain of custody form is completed
Step 2: The subject voids into a standard collection cup. The temperature of the urine is checked, using a temperature strip on the collection cup, to assure it is a valid sample.
Step 3: A urine specimen syringe device is used to collect a sample of the urine.
Step 4: The syringe device, and related paperwork are sent to the lab. This is easier, cleaner and less expensive than sending a bottle of urine.
Step 5: The test samples are shipped to the lab. The most economical and effective method of getting your sample to the lab will depend on your location.
Step 6: Results are typically reported within three days of receipt at the lab.

Why is the EtG test ordered?

Individuals on probation for a criminal offense are sometimes subjected to random alcohol testing, which dictates that they blow into a portable breathalyzer. This test will only show the alcohol (ethyl alcohol) which remains in the bloodstream and is expelled as vapor from the lungs. Therefore, this test will only give information on whether or not the individual has drank alcohol within hours of taking the test.

Under certain circumstances the Court will order an EtG test for someone who is prohibited by law from consuming alcohol, based on an alcohol-related offense (usually drunk driving). The test is also used to screen for drinking problems, intervention evaluation, employment purposes and to motivate changes in drinking behavior.

Is the EtG Test reliable?

According to the Substance Abuse and Mental Health Service Administration, the EtG test is inaccurate and may actually be unreliable. The SAMHSA discusses the test’s sensitivity to even small amounts of alcohol that can be present in daily-use items. Examples include hand sanitizer, hair spray, laundry detergent, aftershave and even some cosmetic items. The information provided in the SAMHSA advisory notice led the U.S. Department of Health to deem the test “experimental”. The EtG test can produce positive results when an individual is simply exposed to any number of products which contain ethanol.

Despite EtG testing’s scientific unreliability, the test continues to be widely-used across the country. For this reason, our law firm is against the use of EtG tests.
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In Michigan, a common sanction by both the courts and the Secretary of State is the required installation of an interlock ignition device on the defendant’s (or petitioner’s) automobile. Colloquially referred to as a ‘blow and go’, these devices can be a tremendous headache for those required to install them. In our experience, there are a number of situations where these devices are compelled to be installed on our clients’ vehicles. These scenarios include;

– A ‘superdrunk’ conviction,
– Certain drunk driving convictions with aggravating circumstances,
– As a mandatory condition of a restricted license upon a successful license appeal,
– And certain crimes which may have resulted from an underlying drinking problem.

1) What is an interlock ignition device?

The cell-phone sized device is installed so it connects to an automobile’s ignition system, usually inside of the glove compartment. After installation, the driver is must blow into the device before the car will start.

2) Where can these devices be installed and how much do they cost?

Many locations in Southeast Michigan offer install services for the ignition interlock device:

American Interlock 800.580.0504 Michigan Interlock, LLC 888.786.7384 National Interlock Service 888.294.7002
New Horizon Interlock, Inc 800.597.5054 Smart Start Michigan 888.234.0198
Prices vary from company to company, but range from $50 to $200, based upon the make and model of the car. The device also holds a monthly rental fee, which can be as high as $100.00.

3) How do these devices work?

According to igntioninterlockdevice.org, the driver blows about 1.5 litres of air into the device, which is located on the car’s dashboard. Drivers can also be subjected to “rolling tests”, which require the driver to use the device once the car is moving. If the driver fails one of these “rolling tests” the device sounds a warning, which may consist of flashing lights or honking horn and will sound until the ignition is turned off (the ignition will not automatically shut off while moving). Each device contains a computer chip, which requires monthly downloads. The information is sent to the overseeing court and analyzed for blood alcohol content levels as well as attempts at tampering with the device.

4) When required by the State in a driver’s license restoration case, what will result in a violation?

The State of Michigan has divided violations into two main categories:

Minor Violations

-After the trial period, the driver fails three start-up tests (car will not start)
-If the driver fails to have the device serviced within 7 days of his/her scheduled date
Major Violations

-Failure of a “rolling test”, which is either failing to take the test when prompted or the result is greater than 0.25% and a subsequent sample is greater than 0.25%
-An arrest or conviction for drunk/drugged driving -Tampering with the Blood Alcohol Ignition Interlocking Device -Circumventing the device, by allowing a passenger to blow into the device -Three minor violations within the monitoring time (required time for device to be installed)
-Removing the device without having it re-installed within 7 days (unless Secretary of State approves)
-Operating a vehicle without a properly installed device
In the State of Michigan, a minor violation will result in a three-month extension before another driving license appeal can be requested. Major violations will cause the original driver’s license revocation to be immediately reinstated, which means the driver will no longer be able to operate any vehicle, even with an ignition interlock device installed.

5) Are these devices reliable?

Despite widespread implementation of ignition interlock devices many have doubts as to their reliability. Significant issues arise out of false positive results, which could be caused be a number of daily-use products. They include mouthwash (because of its minimal alcohol content), some medicines, and even some beverages.
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If you spend enough time in the back of a court room you will hear a few common explanations for positive drug and alcohol tests. Often when faced with a probation violation (or show cause while on bond, or if you are appealing to get your license back) defendants/petitioners will attempt to offer an innocent reason for their positive test. What defendants often do not know, that practicing attorneys do, is that Judges have heard it all. While our strategy varies from case to case – we advise that our clients NEVER* to use the following explanations when standing in judgment. Probation violation hearings are oftentimes much more serious than the underlying charge, as the Court will view the defendant as somebody who has been unable to prove themselves. Further, the sentencing Judge has the authority to sentence defendants to the maximum term of incarceration for the underlying charge. Beneath are some common excuses that come up in court. I’ve done some basic research into each of these explanations to see if they are at all supported by science, unfortunately it seems that they are not.

Excuse #1: ‘It Was Secondhand Marijuana Smoke’

When defendants test positive for THC they will sometimes tell the Judge that it was merely secondhand smoke. The Wikipedia page on drug tests (which has a wealth of other relevant information) states that “[t]his legend is technically true but highly misleading.” In order for a test to be positive from secondhand smoke one would have to be in a small unventilated space for hours with marijuana smokers. Based on this, it seems that somebody who is by marijuana smoke for a short amount of time would not have THC levels to yield a positive test. The possibility of a positive test aside, Judges hear this excuse all of the time and know it is just that. Dishonesty will always put you in a worse position than where you started.

Excuse #2: ‘The Cocaine Seeped Through My Skin’

Though a somewhat more isolated excuse, this still comes up time and time again. Karch’s Pathology of Drug Abuse indicates that a positive drug test from this type of exposure is unlikely unless dealing with a large quantity of cocaine. No surprise that Judges do not buy into this explanation. Beyond the fact that it most likely isn’t true, there isn’t a solid legal reason to be handling a large quantity of cocaine. As advised above, this is a defense that will get you nowhere and if anything will set you back should you use it before a Judge.

Excuse #3: ‘I Was Drinking Cough Syrup’

Perhaps the most common of all of the excuses, when defendants test positive for alcohol they often say that it is from drinking cough syrup. I couldn’t figure out the exact amount, but alcohol is listed as an inactive ingredient in Nyquil. Some sources stated as low as 10% and some as high as 25%. Nyquil can cause a positive alcohol test. However, it would seem that one would need to drink a large quantity to have a positive BAC or drink cough syrup immediately before blowing. MOST OF THE TIME, this excuse does not hold up. Oftentimes Judges see through this smoke screen and view the defendant as being dishonest and uncooperative. Further, a term of probation is typically no consumption of alcohol, because there is alcohol in some cough syrup this is a straightforward violation. HOWEVER, in some instances (specifically in license appeals at the DLAD) we have been successful in bringing this defense where there is corroborating evidence and/or a doctor’s note.
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bus.jpgAlmost every week a very familiar scenario plays out in our office. A client will come in, sit down for a consultation, and discuss with us the facts of his or her license revocation history. Many times it will be the instinct of one of our Firm’s attorneys that the client had a winnable case. However, the catch is that they didn’t win, and in many instances have created a mess for themselves that will take years, literally years, to unravel. Why didn’t this client win?

Oftentimes it is because they appealed their license revocation unrepresented, assuming that it was a simple and straightforward procedure. Further, it is often assumed that the hearing officers will summarily rubber stamp petitioners with a license after they wait their year. This is very much not the case. License appeals are substantively and administratively complex, and oftentimes become unmanageable for people who do not retain the assistance of an attorney. The stakes are high, losing an appeal typically results in an additional year revocation. Moreover, any inconsistencies stated in an initial hearing will come back to haunt the petitioner in future hearings. Losing a DLAD appeal means that the petitioner will have to continue asking friends and family for rides, or risk breaking the law and driving without a license. Beneath are some common mistakes that petitioners make when appealing their revocations without the assistance of counsel.

Procedural Mistakes

The DLAD has strict procedural guidelines for filing these appeals. Often unrepresented petitioners will miss deadlines, file the wrong documents, or fill out documents/background letters incorrectly. When you have a case with strong facts (IE over one year of demonstrated sobriety) it is a waste to wait an additional year because of a procedural mistake.

Substantive Mistakes

Without counsel, petitioners will often make substantive mistakes. Most commonly, petitioners who have not met the one year of mandatory sobriety will disclose that they have consumed alcohol in the last 12 months. We always counsel clients to wait that year, and will assist them in finding programs and counselors to assist them with their sobriety. Further, unrepresented petitioners tend to get nervous, and put inconsistencies on the record because they buckle under the pressure. A first hearing is intimidating, and that pressure can often cause a petitioner to lose his or her cool, become mentally unorganized, and forget vital dates – thus making a winnable case a loser.

Our Program for Getting You Back On the Road

Our law firm has a comprehensive program for getting petitioners back on the road. From our initial consultation we look at all the facts and organize them to avoid both procedural and substantive mistakes. Our firm has appeared on hundreds of license appeals and has a streamlined process for gathering and filing the documents, thus eliminating confusion on behalf of the client. Further, in our representation we include a mock hearing where you and one of the Abdo Law attorneys will go through the questions that will be asked at the hearing. The goal is to reduce anxiety and eliminate as much as possible the element of surprise in the hearing room.
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If a revoked driver (habitual violator of Michigan drunk driving laws) meets the burden of proof by clear and convincing evidence and wins at the first Driver’s License Appeal Division (DLAD) hearing, he or she will be allowed to drive a vehicle subject to restrictions and with an ignition interlock device. The driver will be able to drive on a restricted basis during certain designated hours or for a designated purpose, such as employment and/or education. In addition, the ignition interlock device must be installed for a minimum period of 1 year on the vehicle which is operated by the person. The ignition interlock is an alcohol monitoring device which requires breath samples of a person while one is operating a vehicle. The purpose of the ignition interlock device is to measure the bodily alcohol content (BAC) of an intended driver and to prevent the motor vehicle from being started if alcohol is detected.

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

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

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

A hearing will be held in a small office with your attorney and a hearing officer in attendance. The hearing officer is an attorney who works for the Michigan Secretary of State. For all purposes, the hearing officer is the judge and jury. It is our job to present all of the evidence and testimony in an organized and persuasive manner. In addition, a closing argument to sum up the evidence and testimony presented at the hearing is often made after all of the proofs are presented. The hearing officer cannot award a restricted license to someone unless the burden of proof is satisfied by clear and convincing evidence.
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Contact Information
42550 Garfield Rd #104-A
Charter Twp of Clinton, MI 48038
Phone: (586) 412-5555Fax: (586) 412-5888

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