The Free Press this week is working on uncovering just how where you are arrested can affect your sentence in an OWI case. Because judges are allowed a great deal of discretion in misdemeanor cases like those involving drunk driving, what might get you no jail time in Utica could land you over 30 in Warren.

Under Michigan law, a first offense OWI conviction can carry up to 93 days in jail, 180 days suspended driver’s license, 360 hours of community service, a $500 fine, and 6 points on your driver’s license. Do all OWI cases result in the maximum sentence? Not hardly. As a matter of fact, it is incredibly rare for a judge to sentence someone to the maximum, especially for a first offense.

Instead, judges in Michigan usually sentence people to a few days (if any) jail time. Community service, probation, fines, and license suspension are used far more often with first offense drunk driving charges. But not all judges use jail time as sparingly as the majority. Some dole it out on a regular basis.

District Judge Kimberly Small in West Bloomfield is notorious for ordering jail time on first offense drunk drivers. Others see it as pointless. Small says the only difference between a first time offender who causes the death of someone and one who doesn’t is luck. She sees jail time as the wakeup call needed to prevent future drunk driving offenses.

There seems to be no evidence, however, that jail time on a first offense OWI is any more effective at reducing recidivism and 2nd offense OWI charges than probation or fines and community service. “I think jailing somebody on a first offense is really a political thing. Look how tough I am,” says one judge. “Statistics show that treatment is what works.”

This isn’t something unique to the Detroit area, nor is it unique to Michigan—it happens all around the country as sentencing guidelines are extremely rare for misdemeanor cases. Judicial discretion is a cornerstone of the criminal courts as the judge should be able to take into consideration all of the facts of a case. But sometimes, judges use this to “send messages” more than to dole out appropriate justice.

Knowing how different judges handle OWI cases differently is just one benefit of having a local criminal defense lawyer. If you’ve been charged with drunk driving and you’re unsure of the penalty you might face, contact our attorneys today to discuss the details of your case and how the jurisdiction in which you were arrested may affect the outcome.

The Farmington Patch this week ran a story on the 47^th District Sobriety Court and some of the successes this alternative court has seen. According to the piece, this court and others like it in the region save the local governments money while assisting offenders in recovery, providing a win-win situation.

Sobriety court is a program within the 47^th District Court that allows for intensive treatment and assistance for people accused of alcohol or drug related offenses. While the guidelines state the offender must be accused of a OWI where their blood alcohol content was greater than .15, exceptions can be made at the administrator’s determination.

The main purpose of this program is to assist the offender in recovery and reduce recidivism. According to the Patch, it’s successful in these regards.

This particular Sobriety Court has graduated 40 offenders in recent years, none of which have appeared again in the court system. As a matter of fact, some of the original graduates return to watch the newer ones go through their graduation ceremony, as a reminder of where they began.

The program includes substance abuse treatment, education, drug and alcohol testing, and AA or NA twelve step programs. Often, in other jurisdictions where such programming isn’t available, similar offenders are not given the same tools at recovery and are found back in front of the judge again and again.

This program tries to identify those people who truly have alcohol and drug problems, those who can’t “get better” without some help and treatment. By giving them the help they need and access to counseling the Sobriety Courts assist the offender and likewise decrease future burdens on the courts.

In the world of crime and punishments, punishment often doesn’t do the job. Instead, the needs of the offender and the needs of public safety are better served with rehabilitation, or prevention. Although Sobriety Courts like this one aren’t available in every jurisdiction, there are other treatment options across the state.

When you are facing criminal charges and you need assistance for addiction or alcoholism you may get access to treatment and help through the courts. Contact our attorneys to discuss your charges and the programs available in your area.

If some lawmakers get their way, Michigan will become the first state to allow law enforcement to test for drugs when they suspect a driver is under the influence. Similar to breath tests used in suspected DUI cases, these tests would reportedly alert cops to the presence of illegal drugs in a suspect’s body.

Representative Rick Jones is sponsoring the legislation and states the tests are both effective and affordable. Another selling point—they could minimize the current methods of dealing with suspected drugged drivers, requiring warrants and blood draws.

According to The Free Press, the detections machines work on a bit of saliva from the person’s mouth. It can reportedly detect marijuana, cocaine, meth, and other drugs within six different categories. Currently, the state uses such tests on parolees but never before as a roadside detection method.

One has to question the reliability of these machines and the training that will be required for the officers planning on using them. If they are anything like breathalyzers, they may occasionally give false readings due to calibration or error in usage. If legislation is passed, I foresee this being an issue down the road.

According to the deputy director of NORML, the National Organization for the Repeal of Marijuana Laws, the roadside testing could potentially help law enforcement though he also questions the reliability of the devices and their actual effects on public safety.

Currently, if you are found to be under the influence of any illegal drug while behind the wheel, you can be charged with drugged driving. Similar to driving under the influence of alcohol, you can face OWVI or OWI charges. Both of these carry the potential for jail time, fines, and license suspension.

While drunk driving is a far more common charge than drugged driving, this could potentially change if the legislation allowing roadside drug testing is passed. Regardless of what you are accused of being under the influence of, however, you will need someone on your side to make sense of the charges and help you weigh your options.

If you’re facing OWI charges, contact our attorneys today to discuss the case against you.

Depending on the specific circumstances, we may be able to challenge the evidence against you in hopes of getting the charges reduced or dropped altogether.

The 2007 Drunk Driving Audit, which is an annual report compiled by the Michigan State Police in concert with Michigan Department of State and Michigan Department of Transportation documenting arrest, accident, injury, and fatality information from all Michigan counties, indicates there was a 13% drop in alcohol/drug related fatalities from 2006 to 2007 (440 to 382), which is a 10 year low.  There were 49,867 alcohol/drug related driving arrests in 2007 which is 3,500 less than 2006.

Further, 47,267 of the 2007 arrests resulted in convictions of operating while intoxicated (OWI) or impaired driving, which is almost 95%. (see http://www.michigan.gov/msp/0,1607,7-123-1586_1710-195921–,00.html ). Only, 776 convictions, less than 2%, were reduced to non-alcohol related offenses, such as Reckless Driving or Disorderly Person. (see page 485 of Audit).  The remainder were dismissed or resulted in acquittals.

However, what the Audit fails to indicate clearly is the number of repeat offenders contained within this data.  Therefore, despite reduction in arrests, the question arises whether the appropriate sentence has been ordered to help curb these numbers, or even whether there were intervening factors such as less police presence because of cut-backs.  As to sentencing, there is a mixed ideology on this very sensitive issue.  Is Jail appropriate? Is rehabilitation appropriate?  Is a vehicle interlock (breathalyzer) appropriate? 

Over half of drivers arrested for drunk driving in the nation are repeat offenders, according to a 2003 AAA Foundation for Traffic Safety study.  There does not appear to be a clear answer, but a stronger focus on individualized treatment, education, and rehabilitation may be the answer.  It is important to structure an appropriate type of treatment for each individual because each substance abuse issue or each individual may require a different type of treatment.

Unfortunately, most judges will give more credence to the recommendation of a probation officer or their own typical sentencing policy than that of a licensed substance abuse professional and/or psychiatrist/psychologist.  Has an individual gained any insight to there possible substance abuse issue by attending 10 AA meetings but sitting in the corner and not sharing? Maybe he or she would get much more from speaking one on one with a counselor.  These questions can not be answered with blanket sentences, but require individualized sentencing appropriate for each individual and there possible substance abuse issue.

The 2007 Drunk Driving Audit is available online. To view the entire report, visit www.michigan.gov/msp, then click on Publications, Forms & Statistics. Next, click Statistical Information, then Traffic Crash Statistics, then click Michigan Drunk Driving Audit.

by attorney Michael J. Boyle, Barone Defense Firm

On December 19, 1008, Michigan Enrolled Senate Bill 1134 passed both houses of Michigan’s Legislature, and is now awaiting the Governor’s signature. Known as the “Super Drunk” bill, this legislation amends several sections of Michigan law, and most notably adds a new crime for drivers with a bodily alcohol content (BAC) of .17 or greater. Under this new statutory definition of operating while intoxicated these high BAC drivers are required to have a breath alcohol ignition interlock device (BAIID) placed on their vehicle. This new law will not take effect until October 31, 2010.

Under the bill high BAC drivers are subjected to other more punitive sanctions. For example, a first offense high BAC drunk driver’s license is suspended for one year. The first 45 days of this year is considered a “hard” suspension, meaning absolutely no driving is allowed. During the remaining 320 days the offender is entitled to restricted driving privileges, but must have an ignition interlock device placed on their car during this period. Fines are increased to $200.00 – $700.00, and potential jail time is increased from up to a possible 93 days to as much as 180 days. The court must also order a mandatory minimum one-year alcohol treatment program. The high BAC sanctions only apply to first offenders – repeat offender sanctions remain unchanged.

The bill proposes to create a second new offense related to the monitoring of the BAIID. Accordingly, any violation of the driving restrictions imposed, or operating or attempting to operate a vehicle with a BAC of 0.025 or greater, results in a doubling of the license penalty. Thus, offenders who violate their license restrictions will have a second set of identical driver license sanctions imposed, meaning a new 45 day period of no driving followed by 320 days of restricted driving with the BAIID.

Once installed, a typical BAIID requires a driver to blow into the device when they first start their car, and then retest within the first 5 to 15 minutes. The BAIID will not allow the car to be started if it detects a BAC of .025 or greater. When driving for longer periods of time the driver must also test about twice every hour. The device records each test and any violation is reported to the monitoring agency. If during operation it detects a BAC of greater than .025, then a warning signal will be emitted, and after coming to a complete stop the car cannot be re-started until the driver has a BAC of less than .025.

A BAC of .025 is equal to about one drink of alcohol for a person weighing approximately 160 pounds. But that’s probably not the reason .025 was chosen as a lower limit. Illinois’ new BAIID law uses a slightly lower number of .024, and these numbers really represent the lower limit of the BAIID’s ability to measure breath alcohol. Anything less than .025 could literally be nothing but electronic noise.

The new law also makes drunk driving far more expensive because it is the driver’s responsibility to pay the cost of installing the BAIID as well as the monthly fees required to maintain it. While the state does not regulate the cost of ignition interlock devices, the Legislature had previously limited the amount that can be charged to people on low-incomes to a maximum of $1.00 per day. The new law increases this minimum to $2.00 per day, and for certain low income drivers the installation fee is waived. Drivers that do not meet the low income deferment requirements must pay the BAIID vendor’s usual rates. In Michigan installation fees are around $50.00, and depending on the vendor, monthly fees can be as high as $100.00 month.

The new law also provides for a sanction of impoundment where a person required to have a BAIID is stopped in a car without one. If this non-BAIID vehicle is individually or jointly owned, the vehicle registration plate will be confiscated and destroyed. A new temporary plate will be issued and the Secretary of State will be notified. This is considered to be an “offending vehicle” sanction, meaning the owner and not necessarily the driver of the car remains liable for all expenses incurred in the removal and storage of the vehicle.

In a rather peculiar change, the owner or person in charge or control of a vehicle who knowingly allows an intoxicated person to drive that vehicle must have that vehicle immobilized for 90 to 180 days. Immobilization can be avoided, provided a BAIID is installed and the owner or person in charge or control of the vehicle obtains a restricted license from the Secretary of State. However, the court may reinstate vehicle immobilization if the ignition device is tampered with, circumvented, disabled, or the person’s restricted license is suspended or revoked.

In passing this legislation, Michigan’s lawmakers stopped short of matching a law recently enacted in Illinois requiring a BAIID device be installed for all offenders. The Illinois law, which went into effect earlier this year, requires the BAIID as a condition of driving even before there has been a conviction.

While certainly less encompassing some states, it is also unclear if this new law will truly impact many of Michigan’s drunk drivers as a matter practice. Under the current law it is quite common for first offense drunk drivers to plead guilty to the lesser included offense of impaired driving. Depending on how plea bargaining is handled for the new offense the new law will either have no impact, or will severely clog the courts with unnecessary trials. This is because it seems entirely plausible that high BAC first offenders will be offered the option of pleading guilty to traditional operating while intoxicated or operating while visibly impaired, thereby avoiding this BAIID requirement altogether. If such pleas are not offered, then it is likely that the court system will be clogged by more drunk driving trials.

The new law is also likely that more hearings will be scheduled contesting faulty BAIID results, further clogging court dockets. Because BAIID use electrochemical fuel sensor technology there is always the possibility of false positives. This is because these devices are known to respond alcohols other than beverage alcohol. And, because the driver license sanction for a false positive is so severe, there now is a real incentive to fight the alleged BAIID violation.

It seems that Michigan’s law makers simply want to pass a new, tougher drunk driving law each year. This new BAIID law is expensive, terribly onerous and unreasonably punishes first time offenders who may not have an alcohol problem. This new law essentially takes the position that all high BAC drivers are untreatable alcoholics who, without technological assurance, can’t be trusted not to drive drunk. This is an untenable position for two reasons. First, it assumes that the high BAC chemical test is always correct, and second, that alcohol treatment programs don’t work. As absolutes, both positions are wrong. Any criminal law that unreasonably places everyone into the same category for sentencing purposes, regardless of individual differences, is as wrong as any law that unreasonably places every individual into the same category.

Like Illinois, the Michigan law was actively supported by MAAD as it is their belief that the BAIID requirement saves lives. One is left to wonder however if the changes were really necessary or if they will make any meaningful difference in driver safety. After all, Michigan’s drunk driving laws were amended several years ago to allow the BAIID as a condition of bond or probation, so the courts have already been given this tool. It looks more like pandering to MADD than an honest effort to make Michigan’s drivers safer.

Posted by Patrick T. Barone / Barone Defense Firm

In a first-of-its-kind study, the Substance Abuse and Mental Health Services Administration (SAMSA) has determined that Michigan ranks near the top of the list of the states with the most instances of drunk or drugged driving. Michigan came in at number eleven, and according to the report, as many as 19% of Michigan’s drivers aged 18 and above unlawfully drove under the influence of either alcohol or drugs last year. The study, which examined a period between 2004 and 2006, calls upon States to use “their efforts and resources to address this preventable menace.”

What is interesting to note about this study is that it followed almost immediately on the heals of Michigan’s 2003 re-write of the State’s drunk driving laws. In this package of changes the State promised to lock-up repeat drunk drivers and in some instances to revoke their licenses for life. This study proves that the threat of punishment does little to actually curb or deter behavior. Clearly as a society we must employ other means to address this societal problem. One answer might be sobriety courts. In 2007 the Michigan Supreme Court released its study entitled “Michigan DUI Court’s Outcome Evaluation.” (see http://spa.american.edu/justice/documents/2352.pdf). This study lauds the effectiveness of treatment in preventing recidivism, especially when sobriety courts are compared with incarceration.

Just a few days before SAMHSA report was released the United States Supreme Court seems to have come to a slightly different opinion on the topic, but one that is appears to be at least somewhat in concert with the position that sobriety courts are a better solution than incarceration. In the case of Begay vs. United States, 553 U. S. ____ (2008), the Court acknowledged that drunk driving presents a serious potential risk of physical injury to another. According to the Court “drunk driving is an extremely dangerous crime. In the United States in 2006, alcohol-related motor vehicle crashes claimed the lives of more than 17,000 individuals and harmed untold amounts of property.” Nevertheless, in its opinion, the Supreme Court was unwilling to characterize drunk driving as a crime of violence because the drunk driver does not typically intend to engage in violent and aggressive conduct as do the offenders of clearly violent crimes like burglary, arson, extortion, and crimes involving the use of explosives. The irony here is that under certain circumstances, drunk drivers in Michigan receive penalties that are more severe than those meted out for offenders of these violent crimes.

As part of a rather routine effort to influence the judiciary in this Country, MADD’s press release, which is dated the same day as the Supreme Court’s opinion, states that they were “deeply disappointed” by the ruling. It is probably safe to say that some of Michigan’s trial judges feel similarly. Nevertheless, a copy of the Begay opinion, along with a copy of the Michigan Supreme Court’s study, should be presented to any judge who, at sentencing, suggests that the simple act of drunk driving, including those cases that involve no injury or death, is no different from violent criminal behavior, and then uses this belief as a basis to impose lengthy incarceration. Both the Michigan and the United States Supreme Court have stated that such reasoning is without merit.

Posted by Patrick T. Barone / Barone Defense Firm

The Michigan state senate approved a measure last week to require the installation of an ingintion interlock device in cases of a 1st offense OWI conviction with a BAC result of .15 or higher. The house may act on this proposal to enact it into law next week in the lame duck session of the legislature.

An ignition interlock device is a system that requires a clean, alcohol-free breath sample for a car to start. This “rolling breathalyzer” system is a common penalty in Michigan Second Offense OWI convictions.

Critics argue that such systems are easy to thwart, by driving a vehicle without an IID, or having someone else provide a breath sample. However, both such examples would be additional criminal offenses under Michigan OWI laws. And newer systems are able to take a photo of the person providing the sample at the time of the test, to insure that it is the required licensee passing this test.

High BAC laws that require ignition interlock devices as a condition of license reinstatement are becoming more commonplace nationwide. Many experts believe an IID to be both more effective at reducing drunk driving and more fair than license suspensions in cases of people with multiple OWI offenses.

According to the National Highway Traffic and Safety Administration (NHTSA), more than half of all alcohol related deaths are in cases where the driver records a .15 or higher BAC. The legal limit for Blood Alcohol Content nationwide is .08%.

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If you are accused of drunk driving, OWI, or any other criminal offense in Michigan, please contact our attorneys to take advantage of out free criminal case evaluation offer. Just becase you are arrested doesn’t mean you are guilty.

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More coverage here.

Following up on the previous news about Davenport University president Randolph Flechsig who was arrested on Drunk Driving charges last month, and claimed to not be drunk, but to have been suffering from a diabetic episode. After his blood test results were revealed, Mr. Flechsig apologized for his handling of the incident, and having “jeapordized the trust” of the students at his school.

Tests showed his blood alcohol content at the time was .09%, above the legal limit of .08% set by Michigan OWI laws, and the standard nationally. His initial claim was that his blood test would establish that he was not impaired or over the limit at the time of his arrest.

He is expected to plead guilty in court today.

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If you are charged with a drunk driving OWI offense in Michigan, please contact our attorneys today for a case evaluation. We can help you defend your license, and protect your rights and freedom in court. The consultation is free.

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Ref: Mlive, WZZM

A prominent Michigan man pleaded not guilty to drunk driving in Cascade District Court Tuesday after being arrested Sunday night by East Grand Rapids, MI police on suspicion of OWI (operating while intoxicated).

Randolph Flechsig, the president of Davenport University, released a statement claiming that he was not intoxicated, but was having a diabetic reaction at the time, which caused him to drive and act erratically.  His statement suggested that blood test results taken will substantiate the claim that he was not under the influence of alcohol at the time.

Under Michigan’s OWI laws, Flechsig could face 93 days in jail and a $500 fine for a first offense OWI charge if he is found guilty.

He also refused a prelimary breath test at the scene of the stop, which is subject to a $100 fine. Most OWI defense experts recommend refusing the portable breath test (PBT) because the results are not scientifically accurate, and the penalty for refusing is minimal.

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If you are charged with drunk driving in Michigan, please contact us for a free case evaluaton. We’ll provide you with advice from an experienced Michigan OWI defense attorney, with no obligation.

Michigan newspapers are editorializing support for the proposed, so-called “Extreme Drunken Driving” bill, which would toughen penalties for those convicted of OWI / drunken driving in Michigan with high BAC levels (.15 BAC and above).

The bill has not been voted on on the Michigan state Senate, but it believed to have a support of the majority of legislators. The Governor is believed to be prepared to sign the bill into law, if passed. Delays have been based on some senators concerns about removing judicial discretion in sentencing, and details on the requirements for the alcohol treatment programs.

Among the proposed changes to the law are:

If a person is convicted of a first offense drunken driving charge in Michigan and registered a .15 BAC or higher on a breathalyzer (almost double the legal limit of .08 BAC), he or she will face:

• A 45 day driver’s license suspension
• Required entry into an alcohol abuse education and treatment program
• After the 45 day suspension, the offender will be eligible for a restricted driver’s license that would require an ignition interlock device be installed on his car for 1 year

If cases of a second offense Michigan drunken driving conviction, the “Extreme Drunken Driving” law changes would be in effect for any BAC over the legal limit of .08%.

If you are facing a drunken driving charge in Michigan, please contact us for a free legal case evaluation and consultation. Our Michigan OWI defense lawyers know how to help you fight the charges and protect your license and freedom to drive.

For your free OWI / drunken driving consultation, contact us today.