Michigan DUI Lawyer
What to Expect When Charged With Driving Under the Influence (DUI)
Driving offenses stemming from drug and alcohol use have continued to evolve in recent years. These cases may also involve prescription drugs, property damage, or weapons charges.
Elements of DUI in Michigan:
Operating a motor vehicle;
On a highway or other place open to the general public, or generally accessible to motor vehicles;
While under the influence of alcohol and/or with an unlawful bodily alcohol level of .08 grams or more.
What Must the Prosecution Prove For Michigan DUI?
That the defendant was operating a motor vehicle on a highway, another place open to the general public or generally accessible to motor vehicles, or a parking area;
That he or she did so while under the influence of alcohol, controlled substances, or a combination of these;
That as a result of the drinking, he or she was substantially deprived of normal control or clarity of mind; and
That he or she was unable to drive normally.
This element was examined at length in People v Walters, 160 Mich App 396, 407 NW2d 662 (1987), a case that may be considered the “low-water mark” in terms of the amount of evidence needed to send an OWI charge to a jury.
A police officer saw defendant drive normally for about 30 feet before backing into a driveway; on leaving his vehicle, defendant appeared intoxicated and ultimately admitted to drinking several beers.
Finding that evidence marginally sufficient to survive a motion for directed verdict, the appellate court ruled that the amount of driving observed must be sufficient to make a proper determination of whether the defendant could drive normally.
See also People v Raisanen, 114 Mich App 840, 844, 319 NW2d 693 (1982); People v Kelley, 60 Mich App 162, 230 NW2d 357 (1975).
Michigan Prescription Drugs DUI Laws
Prosecutors may charge a defendant with operating with the presence of a controlled substance (OWPCS) under MCL 257.625(8) or operating while intoxicated (OWI) under MCL 257.625(1) when prescription drugs are detected in blood samples. Drivers are sometimes charged with OWI when intoxicating substances such as some herbal supplements are detected in the blood. These cases may or may not involve the presence of alcohol or the combination of prescription and herbal supplements.
A conviction for OWPCS requires proof of “any amount” of a controlled substance in the defendant’s body. The prosecution need not prove the defendant was “under the influence.” However, the prosecutor must prove beyond a reasonable doubt in an OWI case that the defendant was operating the motor vehicle “under the influence” of the prescription or herbal supplement.
When confronted with one of these cases, be sure to determine whether the prescription or herbal supplement is, in fact, either a controlled substance under the public health code, see MCL 333.7212, .7214, or an intoxicating substance as defined in MCL 257.625(25).
Cases where the defendant had a valid prescription may prove more difficult for the prosecution who must then prove the levels in the defendant’s system were above therapeutic levels. Of course, the lack of a current prescription or evidence the defendant was aware of the intoxicating effect of the prescription or herbal supplement and then operated a motor vehicle anyway are problematic for the defense.
Be sure to review all of the prosecution’s evidence along with your medical records. Determine whether there is need to hire an expert witness such as a pharmacologist or toxicologist. It may be appropriate to file a motion to suppress, conduct a preliminary examination, or go to trial.
Michigan DUI Restitution Law
Many driving under the influence cases involve accidents resulting in personal injuries or property damage. Defendants convicted of driving under the influence must be ordered to pay restitution for the full amount of the victim’s losses resulting from the criminal conduct. A victim’s losses may include medical bills, wage loss, and property damage, among other things. The defendant may dispute the appropriateness and amount of restitution with an evidentiary hearing. The burden of proof is on the prosecutor to prove the amount of loss by a preponderance of the evidence. See MCL 769.1a, 771.3, 780.766 et seq..
Some insurance companies will not pay claims involving driving under the influence. Some defendants and victims are uninsured. Restitution can add up to many thousands of dollars.
In People v Byard, 265 Mich App 510, 696 NW2d 783 (2005), defendant was ordered to pay over $900,000 in restitution to the victim and the insurer as part of a no contest plea in an OWVI causing serious impairment of bodily function. Costs for psychological and medical treatment must be reasonably determined and actually or reasonably expected to be incurred as a result of the crime. People v Corbin, 312 Mich App 352, 880 NW2d 2 (2015). Civil judgments and restitution orders resulting from a drunk driving incident are not dischargeable in bankruptcy under 11 USC 523(a)(9).
Michigan DUI Concealed Carry Weapon Law
Defendants arrested for driving under the influence while carrying a concealed weapon face an additional civil infraction or misdemeanor charge under MCL 28.425k(2). A blood alcohol content (BAC) of .02 to .08 could result in a civil infraction and a one-year suspension of the concealed weapon license. A conviction involving a BAC of .08 to .10 will result in a three-year suspension of the license. A conviction involving a BAC of .10 or higher or a controlled substance will result in permanent revocation of the license. Review the statute for permitted methods of transporting a weapon even while under the influence.
Recent Cases on Michigan DUI Law As of Summer 2017:
In People v Rea, No 324728, 2016 Mich App LEXIS 777 (Apr 19, 2016), the circuit court dismissed a charge of OWI against defendant when he was arrested after driving only in his driveway. The court of appeals affirmed because no one could reasonably conclude that defendant’s conduct met the statutory requirement of operating a motor vehicle in an area open to the public or generally accessible to motor vehicles.
In People v Dunbar, 499 Mich 60, 879 NW2d 229 (2016), the court held officers lawfully stopped defendant when a towing ball attached to the driver’s pickup truck partially obstructed the officers’ view of the registration plate. The officers smelled burned marijuana in the vehicle and found contraband (marijuana, cocaine, and a handgun) after a search. In upholding the trial court’s denial of defendant’s motion to suppress, the court held the officers had a lawful basis to stop the vehicle for the civil infraction and lawfully discovered the contraband.
In People v Miller, 498 Mich 13, 869 NW2d 204 (2015), the legislature did not expressly authorize multiple punishment for two offenses (OWI and OWI causing serious impairment of body function) arising from the same criminal conduct. Convicting defendant of both offenses is a violation of double jeopardy under both the U.S. and Michigan Constitutions.
In People v Carlton, 313 Mich App 339, 880 NW2d 803 (2015), the Michigan Medical Marihuana Act immunity and defenses do not apply to a person who smokes marijuana in his or her own car while parked in a private business parking lot that is open to the general public.
In People v Lyon, 310 Mich App 515, 872 NW2d 245 (2015), a defendant operating an electric scooter or personal assistive mobility device, low-speed vehicle, or moped on a public highway may be prosecuted for OWI. Under MCL 257.79, a vehicle includes “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.”