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What is Operating While Intoxicated - Minor (Zero Tolerance)? |
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Operating While Intoxicated -Minor (Zero Tolerance) applies to anyone under 21 who has a bodily alcohol content of .02 to .07 and drives a car. |
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Penalties: |
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Up to $250 fine and/or
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Driver license is restricted for 30 days.
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Four points on driver record.
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$500 Driver Responsibility Fee for 2 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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Police Violate Procedures Relative to the Chemical Testing: |
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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 or has 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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Jury Instruction |
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The defendant is charged with operating a motor with a bodily alcohol content of .02-.07 B.A.C. To prove that the defendant operated 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 a motor vehicle while intoxicated, the prosecutor must also prove beyond a reasonable doubt that the defendant operated the vehicle with a bodily alcohol level of 0.02 grams or more per 100 milliliters of blood / 210 liters of breath / 67 milliliters of urine].
As you consider the possible verdicts, you should think about the following:
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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 0.02 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.
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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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