Michigan’s new texting law is about to go into effect so of course it’s been the topic of conversation among defense attorneys.

According to attorney Stuart G. Friedman:

There are more holes in this law than in the IRS tax code.  We face two separate issues with this law:  (a) can we win our own tickets; and, (b) can we stop bogus traffic stops and driving while Black cases.

I think the answer to (a) is “yes.”  The problem with “b” is the tendency of judges to treat law enforcement’s erroneous interpretation of the law as probable cause.

Furthermore, Mr. Steward says that the Chief of Farmington Hills “is saying that if you are looking down at the phone you are violating the law.”   In other words, looking down towards the device was grounds in his opinion.

Attorney Mark Clement raises this question:

With the text ban almost here, the inevitable is going to happen where the cop grabs the drivers cell phone and starts going through it to determine if the driver was  texting…..Any thoughts about the legality of that, alone?

What about when they stumble upon other evidence on the phone leading to other crimes?

Attorney Mike Nichols answers:

Mark: you posit a scenario in which an officer takes someone’s  phone to search for evidence of a violation of the civil infraction of texting  while driving. It strikes me as the sort of search for an extremely minor offense that, without a warrant or exigent circumstances, offends the  constitution using an analysis similar to that of Judge Lawson’s in Platte and Spencer (Platte v Thomas; Spencer v Bay City).

Mr. Friedman brings another issue, which is the probable existence of privileged information on a lawyer’s phone.  He characterizes it this way:

The problem for attorneys who carry smart phones is that it would be an ethical violation for us to let a cop look at our phone and we will have that fight.  The cops will cloud the issue by alleging weaving, belligerence, etc.

For more information see:

• Texting While Driving Causing Death
• Texting While Driving Unlawful in Michigan

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Punishment for MI DUI

If you have been arrested for drunk driving in Michigan, one of the first things on your mind is “what will happen to me?”  In other words, “what are the penalties for a Michigan DUI?”

Well, as you may have guessed, there are very few absolutes when it comes to punishment, and even figuring out what law applies can be a great challenge.  At the Barone Defense Firm other lawyers often ask us about sentencing issues such as vehicle immobilization, mandatory incarceration, hours of community service, ignition interlock and the like.

To help lawyers and clients figure out what punishment to expect after a Michigan DUI, we’ve created the following charts which you may download and print:

1. OWI 1ST Flow Chart Barone
2. OWI 2nd Flow Chart Barone
3. OWI 3rd Flow Chart Barone
4. OWI Under 21 Flow Chart Barone

In looking at these charts keep in mind that they’ve not been updated to include the Michigan super drunk/extreme drunk driving law that goes into effect October 31, 2010.

Also, keep in mind that these charts where prepared for use by judges and lawyers.  If you have been arrested for a DUI in Michigan, and are facing a possible conviction, then it’s best to review this charts with a Michigan DUI lawyer.

Finally, when reviewing these DUI penalties charts consider the fact that there is a great deal of discretion regarding punishment.  Because of this the lawyer that you choose can make a big difference in the eventual outcome.  Consequently, it’s important to choose a top Michigan DUI lawyer to represent you.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Michigan has adopted sentencing guidelines that apply to all felony cases including felony drunk driving.  In Michigan, felony drunk driving with injury or death is a “crime against the person” and a class “C” felony, and is punishable by up to 15 years.  There is no minimum sentence for these more serious drunk driving offenses.

Michigan’s other felony drunk driving laws[i] require that an individual convicted of a violation after two prior convictions that is sentenced to a probationary term must be also sentenced to no less than 30 days in the county jail, with 48 hours being served consecutively.

This would be considered a “standard” felony drunk driving in Michigan, which is a “crime against public safety” and a class “E” felony.[ii] This is the category and class that will apply to all third offense drunk driving cases in Michigan.

In most instances, felony drunk drivers who have not injured or killed anyone will have sentence guideline ranges of either 0-6 or 0-9.  Certain things, like prior criminal offenses of any kind, and very high breath or blood test results, will increase the guidelines.  The same is true of “habitual offenders,” that is, those who have more than one felony conviction of any kind.

Bear in mind that the Michigan drunk driving law requires a minimum sentence of 1-5 years, with the first 30 days served behind bars, at least 48 hours of which must be consecutive.  So, even though the guidelines say, for example, 0-6, you must still serve at least 30 days in jail.

If you are facing a felony drunk driving charge then it is best to hire an experienced lawyer who can help you obtain the best possible sentence.  At the Barone Defense Firm we have handled hundreds of felony cases, and typically handle 20-30 per felony drunk driving cases each year.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

Sentencing Guidelines Addendum:

As indicated in the sentencing manual itself: [I]n general, the statutory sentencing guidelines apply only to felony offenses for which the penalty prescribed is an indeterminate sentence, and the sentencing court retains discretion in imposing an offender’s sentence. That is, the guidelines are not applicable to offenses for which the applicable statute establishes a mandatory determinate penalty or a mandatory penalty of life imprisonment for conviction of the offense. [iii] Consequently, the sentencing guidelines will only apply to Michigan felony drunk driving.

Additionally, the statutory sentencing guidelines apply to listed felony offenses[iv] that were committed on or after January 1, 1999.[v] The statutory sections listing the felony offenses to which the guidelines apply contain brief descriptions of the felonies listed there “for assistance only.”[vi] The language contained in the statute defining the felony offense itself governs application of the sentencing guidelines.[vii] The statutory sentencing guidelines in effect on the date the offense was committed govern the calculation of an offender’s minimum sentence.[viii]

When an offender is convicted of multiple offenses, a sentencing information report (SIR) should be completed for the sentencing offense that has the highest crime class. In instances where the sentences imposed will be served consecutively, an SIR should be completed for every crime that will be served consecutively.

[ii] 2009 Michigan felony list by statute number

[iii] MCL 769.34(5).

[iv] MCL 777.11 to 777.19

[v] MCL 769.34(2).

[vi] MCL 777.6; MCL 777.11 to 777.19

[vii] MCL 777.6.

[viii] MCL 769.34(2).

zero tolerance drug

There are four ways for a prosecutor in Michigan to prove that you were drunk driving or “OWI” (operating while intoxicated).  Two of them involve alcohol (OUIL/UBAL) and two of them involve drugs (OUID/OWPD).

To show that a person was OWI due to OWPD (operating with presence of drugs), a prosecutor must only show that certain “schedule 1” drugs were present, in any amount, in the driver’s blood.  Because the prosecutor need not show that these drugs caused intoxication or impairment, these schedule 1 drugs are thought of as “zero tolerance” drugs.

Schedule 1 includes “marijuana,” which is defined by Michigan law as:

(3) “Marihuana” means all parts of the plant Canabis sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted there from, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.

Of course when determining if someone has used marijuana before driving the police don’t look for the marijuana itself, but instead, have the blood inspected for evidence that marijuana has been used.  The active ingredient in marijuana is THC.  As THC breaks down inside the body, 11-carboxy-THC is produced.

In the Michigan case of People v. Derror, the defendant was found guilty of OWI causing death based only on the presence of 11-carboxy-THC. The issue in this case was whether or not 11-carboxy-THC was a “derivative” of marijuana. The Derror case involved two companion cases, and in both cases, blood tests only revealed the presence of the metabolite 11-carboxy-THC. The active and impairing THC was not found in either of the driver’s blood samples.

The Derror court ruled that 11-carboxy-THC was actually a derivative rather than just a metabolite of marijuana, and based this decision in part on expert testimony by a state witness and in part on an online medical dictionary, which indicated that a derivative is that “which is produced by modification of something preexisting.”  The court further found that one may be convicted of drunken driving causing death based only on the presence of this derivative.

The Michigan Supreme Court, in People v. Feezel, No. 138031 (June 9, 2010) has ruled that 11-carboxy-THC is not a derivative of marijuana, and in so doing, has completely overruled People v. Derror,  475 Mich 316, 715 NW2d 822 (2006).

Feezel looked at several factors including:

1. Strict Interpretation – The fact that schedule 1 does include the word “derivative” but does not include the word “metabolite.”
2. Effect on Existing Law – Other criminal statutes do specifically include the word “metabolite,” and legislatures are presumed to know and to have considered the effect on all existing laws when enacting new legislation.
3. Federal Law – The Michigan definition of marijuana is identical to that contained in federal statutes, and that by failing to construe the applicable portions of the Public Health Code to achieve consistency with federal law, and by failing to examine the statute in light of other relevant statutory provisions, the Derror majority failed to effectuate the Legislature’s intent.
4. The Michigan Medical Marihuana Act – Under the majority’s interpretation of the statute in Derror, however, individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired. Indeed, in this case, experts testified that, on average, the metabolite could remain in a person’s blood for 18 hours and in a person’s urine for up to 4 weeks.

Feezel has reversed Derror, and in doing so, has removed 11-carboxy-THC from the list of “drugs” that can be considered zero tolerance.  In some small way therefore Michigan’s zero tolerance law has become slightly more tolerant to marijuana.  Thus, while still a zero tolerance drug; this Feezel decision also has the effect of making the defense of those accused of OWI based on marijuana more feasible than previously thought.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!

DUI Breath Testing

Breath test results are the most common forms of evidence used to convict Michigan drivers accused of drunk driving.  There is an expectation and a trust that because these breath testing machines, in Michigan called “DataMasters,” are properly maintained by the police.  Other states have shown that this trust is often misplaced.

This time the culprit is the District of Columbia, where D.C. Attorney General Peter Nickles said the breath testing machines were improperly adjusted by city police.

Mary Pat Flaherty, Washington Post Staff Writer (Thursday, June 10, 2010) has indicated that “nearly 400 people were convicted of driving while intoxicated in the District since fall 2008 based on inaccurate results from breath test machines, and half of them went to jail, city officials said Wednesday.”

Furthermore, D.C. Attorney General Peter Nickles said that the jailed defendants generally served at least five days.

The report indicates that all machines tested where wrong, usually by 20%.  A lawsuit has been filed by those wrongfully convicted.

But the District isn’t the only state to have such problems.  Here is a list of prior articles dealing with the same issues:

• DUI Dismissals Result From Faulty Breathalyzers
• Thousands DUI Cases Possibly Dismissed Over Invalid Breath Test Certificates
• Radio Frequency Can Cause Falsely High Breath Test Results
• Thousands of Breath Tests Improperly Admitted in Michigan DUI Trials

If you’ve been arrested for DUI in Michigan, and believe the test results are flawed, then you should seek out a top DUI lawyer to assist you with your case.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159, or filling out this consultation request form. Call now, there’s no obligation!