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Drugged & Drunk Driving

Everything you need to know when charged with a drugged or drunk driving offense, and how we attack the issue head on to either vindicate you or mitigate your charges

What Are the Different Drugged & Drunk driving Charges In Michigan?

Drugged & Drunk Driving

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused was operating a motor vehicle;
    1. with an unlawful bodily alcohol level (0.08); or
    2. while under the influence of alcohol; or
    3. while under the influence of a controlled substance; or 
    4. while under the influence of an intoxicating substance; or
    5. while under the influence of a combination of alcohol and controlled substances

Special Considerations

  • Merely being behind the wheel in a running vehicle is not enough; there must be some overt act, such as putting the car in gear.
  • A person in their private drive can be convicted.
  • “Under the influence” means that because of drinking alcohol or using or consuming a controlled/intoxicating substance the defendant’s ability to operate a motor vehicle in a normal manner was substantially lessened. To be under the influence, a person does not have to be falling down or hardly able to stand up. On the other hand, just because a person has drunk alcohol or smells of alcohol, or consumed or used a controlled or intoxicating substance  does not prove, by itself, that the person is under the influence. The test is whether, because of drinking alcohol or using or consuming a controlled or intoxicating substance, the defendant’s mental or physical condition was significantly affected and the defendant was no longer able to operate a vehicle in a normal manner.

Penalty

  • First conviction: up to 93 days in jail, community service up to 360 hours, and/or a fine of $100–$500; permissive vehicle immobilization up to 180 days. 
  • Second violation within 7 years of preceding conviction: a fine of $200–$1,000 and one or more of the following: imprisonment for 5 days–1 year, with not less than 48 hours served consecutively; community service for 30–90 days; permissive vehicle forfeiture; mandatory vehicle immobilization for 90–180 days if no forfeiture. 
  • Third violation regardless of the number of years that have elapsed since any prior conviction: felony subject to imprisonment for 1–5 years or probation with jail imprisonment for 30 days–1 year, with not less than 48 hours served consecutively, and community service for 60–180 days; mandatory fine of $500–$5,000; permissive vehicle forfeiture; mandatory vehicle immobilization for 1–3 years if no forfeiture. 

Also 

  • First offense: 30-day hard suspension followed by 150-day restricted license
  • Second offense (in 7 years): minimum 1-year revocation
  • Third offense: minimum 1-year revocation or 5-year revocation

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused was operating a motor vehicle;
  2. The accused was operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles; and
  3. The accused operated the vehicle with a bodily alcohol content (BAC) of 0.17 grams or more per 100 milliliters of blood / 210 liters of breath / 67 milliliters of urine.

Special Considerations

  • We always consider going to trial on a high BAC charge if the prosecutor will not negotiate. There is almost no downside to a trial except the time involved. A jury verdict of anything less than a high BAC could save the defendant money. The fine for a high BAC is $200–$700, and the mandatory interlock can cost up to a thousand dollars. In addition, the license sanctions are nearly doubled for a high BAC compared to a conviction for OWI. A lesser conviction also exposes the defendant to only 93 days in jail as opposed to 180 days for a high BAC. This is very important in jurisdictions where the court has a reputation for imposing the maximum penalty for a probation violation.
  • If the BAC is close to .17, we always consider a motion to eliminate the high BAC charge. The Datamaster is considered accurate only to plus or minus 5 percent.

Penalty

  • First conviction: up to 180 days in jail, community service up to 360 hours, and/or a fine of $200–$700; permissive vehicle immobilization up to 180 days.
  • Second violation within 7 years of preceding conviction: a fine of $200–$1,000 and one or more of the following: imprisonment for 5 days–1 year, with not less than 48 hours served consecutively; community service for 30–90 days; permissive vehicle forfeiture; mandatory vehicle immobilization for 90–180 days if no forfeiture. 
  • Third violation regardless of the number of years that have elapsed since any prior conviction: felony subject to imprisonment for 1–5 years or probation with jail imprisonment for 30 days–1 year, with not less than 48 hours served consecutively, and community service for 60–180 days; mandatory fine of $500–$5,000; permissive vehicle forfeiture; mandatory vehicle immobilization for 1–3 years if no forfeiture.

Also

  • First offense: 45-day hard suspension followed by 320-day restricted license (with proof of interlock installation; interlock not to be removed without Secretary of State’s permission)
  • Second offense (in 7 years): minimum 1-year revocation
  • Third offense: minimum 1-year revocation or 5-year revocation

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused was operating a motor vehicle; and 
  2. due to the drinking of alcohol, use or consumption of a controlled or intoxicating substance, or consumption of a combination of alcohol and substances, the defendant drove with less ability than would an ordinary careful driver.

Special Considerations

  • The accused’s driving ability must have been lessened to the point that it would have been noticed by another person.
  • The crimes of operating under the influence and operating while impaired are distinguished by the degree of intoxication established. The degree of intoxication may be established by bodily alcohol test results or by testimony of someone who observed the impaired driving. So, it’s important to remember that an OWVI charge does not require a bodily alcohol test.

Penalty

  • First OWVI Conviction: A fine of up to $300, along with either 93 days in jail, 360 hours of community service, or both. You could also face driver’s license sanctions, vehicle immobilization, up to 4 points on your Michigan driver’s license, and potential driver responsibility fees.
  • Second OWVI Offense: A fine of between $200 and $1,000, along with either a jail sentence of between 5 days and 365 days, 30 to 90 days of community service, or both. Your driver’s license could also be revoked for a year or more, your vehicle could be immobilized or forfeited, 4 points could be added to your driver’s license, and you could face possible driver responsibility fees.
  • Third OWVI Conviction (Felony): Fines of as much as $5,000, along with either imprisonment for between 1 and 5 years, or probation combined with a jail sentence of between 30 days to a year. You could also face community service for up to 180 days, driver’s license revocation, vehicle immobilization or forfeiture, 4 points on your driver’s license, driver responsibility fees, and more.

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused was operating a motor vehicle;
  2. The accused was operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles;
  3. While operating the vehicle, the accused had any amount of a schedule 1 or 2 controlled substance in his or her body; and
  4. The accused voluntarily decided to drive, knowing that he or she had consumed or used a controlled substance.

Special Considerations

  • For questions regarding driving under the influence of marijuana see my blog
  • Accidental ingestion is a defense to this charge.  This means that the prosecutor must prove that the defendant intended to ingest drugs before operating a motor vehicle.
  • We will be prepared to attack the admission of the scientific evidence. The prosecution must lay a proper foundation to admit the chemical test results. The following are considerations that we will  raise regarding the admission of scientific evidence:
    • Were proper collection methods followed?
    • Was the chain of custody properly handled?
    • Were the testing methods based on sound scientific principle?
    • Were proper testing methods followed?
    • Is the analyst qualified to testify as to the results?

Penalty

  • First conviction: up to 93 days in jail, a fine of $100–$500, and/or community service up to 360 hours; permissive vehicle immobilization up to 180 days. 
  • Second conviction within 7 years of preceding conviction: imprisonment for 5 days–1 year, with not less than 48 hours served consecutively, and/or community service for 30–90 days; a fine of $200–$1,000; permissive vehicle forfeiture; mandatory vehicle immobilization for 90–180 days, if no forfeiture. 
  • Third conviction regardless of the number of years that have elapsed since any prior conviction: felony subject to imprisonment for 1–5 years or probation with jail imprisonment for 30 days–1 year, with not less than 48 hours served consecutively, and community service for 60–180 days; mandatory fine of $500–$5,000; permissive vehicle forfeiture; mandatory vehicle immobilization for 1–3 years, if no forfeiture. 

Also,

  • First offense: 30-day hard suspension followed by 150-day restricted driver’s license
  • Second offense (in 7 years): minimum 1-year revocation of driver’s license
  • Third offense: minimum 1-year revocation or 5-year revocation of driver’s license

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused was operating a motor vehicle;
  2. The accused was operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles;
  3. While operating the vehicle, the accused was intoxicated, visibly impaired, or with any amount of a Schedule 1 or 2 drug in their system;
  4. The accused voluntarily decided to drive knowing that he or she might be intoxicated or visibly impaired; and 
  5. The accused’s operation of the vehicle caused the victim’s death.

Special Considerations

  • To “cause” the victim’s death, the defendant’s operation of the vehicle must have been a factual cause of the death, that is, but for the defendant’s operation of the vehicle the death would not have occurred. In addition, operation of the vehicle must have been a proximate cause of death, that is, death or serious injury must have been a direct and natural result of operating the vehicle.
  • We always consult an independent accident investigator to determine the cause of the accident.

Penalty

  • Up to 15 years (20 years if the victim is a police officer, firefighter, or other emergency response personnel) in prison, a fine of $2,500–$10,000, or both; permissive vehicle forfeiture; mandatory vehicle immobilization up to 180 days, if no forfeiture. 
  • Violation occurring while the person has a BAC of 0.17 or more and within 7 years of a prior conviction: felony punishable by imprisonment for not more than 20 years, a fine of $2,500–$10,000, or both; the court may order vehicle forfeiture, and vehicle immobilization is required if the court does not order the vehicle to be forfeited.

Also,

  • First offense: minimum 1-year revocation of license
  • Second offense or prior revocation or denial (in 7 years): minimum 5-year revocation of license
  • Third offense or two prior convictions under MCL 257.625: minimum 1-year revocation or 5-year revocation of license

To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

  1. The accused was operating a motor vehicle;
  2. The accused was operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles;
  3. While operating the vehicle, the accused was intoxicated, visibly impaired, or with any amount of a Schedule 1 or 2 drug in their system;
  4. The accused voluntarily decided to drive knowing that he or she might be intoxicated or visibly impaired; and 
  5. The accused’s operation of the vehicle caused a serious impairment of a body function

Special Considerations

  • The statute, MCL 257.58c, provides that serious impairment of a body function includes, but is not limited to, one or more of the following:
    • (a) Loss of a limb or loss of use of a limb.
    • (b) Loss of a foot, hand, finger, or thumb or loss of use of a foot, hand, finger, or thumb.
    • (c) Loss of an eye or ear or loss of use of an eye or ear.
    • (d) Loss or substantial impairment of a bodily function.
    • (e) Serious visible disfigurement.
    • (f) A comatose state that lasts for more than 3 days.
    • (g) Measurable brain or mental impairment.
    • (h) A skull fracture or other serious bone fracture.
    • (i) Subdural hemorrhage or subdural hematoma.
    • (j) Loss of an organ.

Penalty

  • Up to 5 years in prison, a fine of $1,000–$5,000, or both; permissive vehicle forfeiture; mandatory vehicle immobilization up to 180 days, if no forfeiture. 
  • Violation occurring while the person has a BAC of 0.17 grams or more and within 7 years of a prior conviction: felony punishable by imprisonment for not more than 10 years, a fine of $1,000–$5,000, or both; the court may order vehicle forfeiture, and vehicle immobilization is required if the court does not order the vehicle to be forfeited.

Also,

  • First offense: minimum 1-year license revocation
  • Second offense or prior revocation or denial (in 7 years): minimum 5-year license revocation
  • Third offense or two prior convictions under MCL 257.625: minimum 1-year revocation or 5-year revocation of license

What will we do as your Defense Attorney?

These are very serious charges that require an aggressive defense in which all of the facts of the case are thoroughly reviewed. We listen carefully to what our clients tell us in order to both put together a strong defense and mitigate sentencing. We do this in several ways.

First, we never take for granted that the police report is an accurate representation of the incident in question. These reports are usually very biased towards convicting the accused, and are therefore often filled with inconsistencies. We use our client’s testimony, research, private investigators, and crime scene visits to poke holes in the prosecution’s case, and ultimately, prove your innocence or argue that the facts are so that a lenient sentence is appropriate. We always visit the scene of the crime. It’s the only way to learn details showing that the police investigation was flawed or that the prosecution’s eyewitness could not have seen what he or she claims.

With Drugged & Drunk Driving charges, most of the evidence comes from the testimony and procedures of the police. Many times, the arresting officer does not follow proper procedure during field sobriety and blood alcohol tests. Charges can be reduced or even dismissed when we bring these missteps to the prosecution.

Convincing the prosecutor to reduce the charge to a OWVI should always be on the table.  Also important is to show that the accused is seeking treatment at AA or taking other steps to kick their bad habit.  In other words, the punishment must fit the crime or we will not stand for it. 

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Email: kerrylawpllc@gmail.com

Tel: (734) 263-1193

Address: 214 S. Main St. Ste 200
                 Ann Arbor MI, 48104
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