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Contact Daniel Ambrose for fast answers to your criminal law questions. He can be reached at his office at (248) 624-5500, his cell phone (248) 808-3130 or by email at Daniel@ambroselawgroup.com
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| OPERATING WHILE VISIBLY IMPAIRED |
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What is Operating While Visibly Impaired? |
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Operating While Visibly Impaired is defined as driving a car in a manner that a normal person would believe that your driving was affected by alcohol. |
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Penalties: |
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First Offense
Up to 93 days in jail Fines Up to 360 hours of community service Possible vehicle immobilization. Possible ignition interlock. Driver license restriction for 90 days. Four points added to driver record. $500 Driver Responsibility Fee for two consecutive years
Second Offense (within 7 years)
Up to one year in jail Fines 30 to 90 days community service. Driver license denial/revocation for a minimum of one year Vehicle immobilization 90 to 180 days unless vehicle is forfeited. Four points on driver record. $500 Driver Responsibility Fee for two consecutive years.
Third Offense (within lifetime):
Up to five years imprisonment 60 to 180 days community service Driver license denial/revocation for a minimum five years Vehicle immobilization one to three years unless vehicle is forfeited. Four points on driver record. $500 Driver Responsibility Fee for two consecutive years
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Did you refuse the Breathalyzer test ? Click here to learn more |
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What Defenses are THERE? |
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Improper Stop: |
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If it can be proven that the police did not have "reasonable suspicion" to stop your car, then the case will be thrown out. This is usually only possible when there is an in-car video to prove the officer is not being truthful. "Reasonable Suspicion" is defined as an articulable suspicion that criminal activity was afoot, or a violation of the traffic code, such as speeding or weaving that provides a basis for the stop. |
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No Evidence of "Operation": |
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A person may be in the driver's seat but not operating the car. To "operate" a motor vehicle, a person must be in "actual physical control" over the vehicle. This determination will depend on the specific facts of your case because the Michigan Courts have ruled that "once a person using a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of harm, this person continues operating the vehicle until it is returned to a position posing no such risk." Consequently, if your car is running, but does not pose a risk, then your attorney might be able to argue that you were not "operating." There is also a recently decided case in Michigan where an individual was found in a parking lot of a golf course, asleep at the wheel, with the engine running. Here the Court concluded: "that this evidence fails to establish that defendant possessed the requisite specific intent. The evidence does not sufficiently establish that defendant was intending to use his truck as a motor vehicle as opposed to just a shelter. The mere fact that the engine was running does not sufficiently establish that defendant had or was intending to put the vehicle in motion. As one of the arresting officers conceded, it was possible that defendant was simply keeping the truck warm while he slept." Every case is different, that is why creativity is essential in defending these cases. |
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Driving Affected by Something Other than Alcohol: |
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If something else affected your driving, such as diabetes or another medical issue, then you might be innocent. |
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Jury Instruction |
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To prove that the defendant operated while while visibly impaired, the prosecutor must prove each of the following elements beyond a reasonable doubt:
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First, that the defendant was operating a motor vehicle [on or about (state date)]. Operating means driving or having actual physical control of the vehicle.
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Second, that the defendant was operating a vehicle on a highway or other place open to the public or generally accessible to motor vehicles.
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Third, that the defendant was operating the vehicle in the [county / city] of _______.
To prove that the defendant operated while visibly impaired, the prosecutor must also prove beyond a reasonable doubt that, due to the drinking of alcohol[*], the defendant drove with less ability than would an ordinary careful driver. The defendant's driving ability must have been lessened to the point that it would have been noticed by another person.
As you consider the possible verdicts, you should think about the following:
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What was the mental and physical condition of the defendant at the time that [he / she] was operating the motor vehicle? Were the defendant’s reflexes, ability to see, way of walking and talking, manner of driving, and judgment normal? If there was evidence that any of these things seemed abnormal, was this caused by drinking alcohol?
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You may also consider bodily alcohol content in reaching your verdict. In that regard, [was / were] the test(s) technically accurate? Was the equipment properly assembled and maintained and in good working order when the test(s) [was / were] given?
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Were the test results reliable? Was the test given correctly? Was the person who gave it properly trained? Did the circumstances under which the test was given affect the accuracy of the results?
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One way to determine whether a person is intoxicated is to measure how much alcohol is in [his / her] [blood / breath / urine]. There was evidence in this trial that a test was given to the defendant. The purpose of this test is to measure the amount of alcohol in a person’s [blood / breath / urine].
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If you find that there were 0.08 grams or more of alcohol [per 100 milliliters of the defendant’s blood / per 210 liters of the defendant’s breath / per 67 milliliters of the defendant’s urine] when [he / she] operated the vehicle, you may find the defendant guilty of operating a motor vehicle with an unlawful bodily alcohol content, whether or not this alcohol content affected the defendant’s ability to operate a motor vehicle.
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You may infer that the defendant's bodily alcohol content at the time of the test was the same as [his / her] bodily alcohol content at the time [he / she] operated the motor vehicle.[*]
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In considering the evidence and arriving at your verdict, you may give the test whatever weight you believe that it deserves. The results of a test are just one factor you may consider, along with all other evidence about the condition of the defendant at the time [he / she] was operating the motor vehicle.
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Why Hire the Ambrose Law Group for your Drunk Driving Case? |
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We are Michigan Drunk Driving lawyers located in Walled Lake, Troy, Berkley, Roseville, and Oxford. We offer FREE case evaluations, and will give you personalized advice and information so that you know what you are up against and understand what defenses you have. We have the experience, the knowledge, and the resources to protect you.
Not All Law Firms Are The Same! Where most Drunk Driving Attorneys work alone, the Ambrose Law Group has a staff of trial lawyers to investigate, prepare, and defend you at trial! The lawyers of the Ambrose Law Group are graduates of the National College of Drunk Driving Defense, The Western Trial Advocacy Institute, and Gerry Spence's Trial Lawyer's College.
We engage in full discovery in every case. We can’t advise you on the best course of action in your case until we know everything about it. When we are hired, we immediately demand the police reports, in-car videos, and booking videos before the police have an opportunity to destroy them. Only after having reviewed the police reports and videos can we advise you on how to best resolve your case.
You may have defenses that other lawyers will not find for you. You should not simply walk into court and plead guilty without first having your case evaluated by a skilled, knowledgeable and trial-tested lawyer. Not all cases are defendable, but all situations are explainable. It only makes sense to know all of your options before making a decision that will affect the rest of your life.
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