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What is Operating while Intoxicated causing death? |
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Operating while intoxicated causing death is defined as driving under the influence of drugs or alcohol and killing another with your vehicle.
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Penalties: |
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Up to 15 years in prison and/or $2,500 to $10,000
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Possible vehicle forfeiture
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1 year license revocation
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Vehicle immobilization up to 180 days
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$1,000 per year for two years in driver responsibility fees
If the death is of a police officer, firefighter or emergency response personnel:
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Up to 20 years in prison and/or $2,500 to $10,000
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Possible vehicle forfeiture
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1 year license revocation
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Vehicle immobilization up to 180 days
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$1,000 per year for two years in driver responsibility fees
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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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Death Not Caused by Operation of the Vehicle: |
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The prosecutor must prove that the victim's death was "proximately" caused by the perpetrator's driving. For example, John is severely intoxicated while driving and sideswipes Mary's car when she drives through a red light. He could be innocent of OWI Causing Death because the accident was actually caused by Mary's driving, even though John was drunk at the time. |
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Police Violate Procedures Relative to the Chemical Testings: |
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The taking of breath and blood samples is governed by statutes and administrative rules, as is the calibration and maintenance of the testing instruments. If it can be proven that the police did not follow the rules then the test results can sometimes be thrown out. This will not result in a dismissal but will likely result in the prosecutor making an offer that you cannot refuse, like careless driving. |
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Inaccurate Breath/Blood Test: |
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The machines used by the police to test a person's breath/blood all have inherent inaccuracies. It is impossible for any testing instrument to be 100% accurate all the time. Blood testing is more accurate than breath testing. Just because you tested over the limit does not mean that you have no defense. It is necessary to retain an expert to explain to the jury how these instruments work and why your test is likely not reliable. |
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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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Contaminated Breath Test: |
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The administrative rules require that a person who is going to be tested not put anything in their mouths for 15 minutes prior to testing. If a person has gum disease, recently sustained a mouth injury, this may contaminate the sample. This was our defense in People v. Edwards. National Patent Analytic Systems, the manufacturer of the B.A.C. Datamaster, the breathalyzer used in Michigan, claims that this is not possible because the machine is designed to detect alcohol/blood in the mouth. Other published and peer reviewed research proves this not to be true. Effects of Mouth Alcohol on Breath Alcohol Results |
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Illness: |
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If a person suffers from congestion, the phlegm in the throat can retain alcohol like a sponge and cause an inaccurate breath test. |
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Length of Blow: |
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Research by Dr. Dennis Simpson shows that the longer you blow the higher it goes! A six second blow will result in a .04 lower result than a 24 second blow. For example a .10 result may actually be a .06. Getting the video from the police booking room is essential in establishing this defense. Most departments only preserve the video for 30 days so it is important to act quickly in your defense. |
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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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he defendant is charged with the crime of operating a motor vehicle while intoxicated or while visibly impaired causing the death of another person. To prove this charge, 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] in the [county / city] of [state jurisdiction]. Operating means driving or having actual physical control of the vehicle.
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Second, that the defendant was operating the vehicle on a highway or other place that was open to the public [or generally accessible to motor vehicles, including any designated parking area].
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Third, that while operating the vehicle, the defendant was intoxicated or visibly impaired.
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Fourth, that the defendant voluntarily decided to drive knowing that [he / she] had consumed alcohol [or a controlled substance or a combination of alcohol and a controlled substance] and might be intoxicated or visibly impaired.
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Fifth, that the defendant's operation of the vehicle caused the victim's death. 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.
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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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Related Topics |
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