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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 INTOXICATED |
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What is Operating While Intoxicated? |
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Operating While Intoxicated by alcohol is defined as:
- driving a car or having driven a car with a bodily alcohol content of .08 or greater
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- driving a car while your ability to drive is "substantially affected" due to drinking 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 Driver license suspension for 30 days, followed by restrictions for 150 days. Possible vehicle immobilization. Possible ignition interlock. Six points added to driver record. $1,000 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. Six points on driver record. $1000 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. Six points on driver record. $1000 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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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 vehicle while intoxicated by:
To prove that the defendant operated while intoxicated, 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 _______.
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To prove that the defendant operated a motor vehicle while intoxicated, the prosecutor must also prove beyond a reasonable doubt that the defendant was [either] under the influence of alcohol while operating the vehicle [or that that defendant operated the vehicle with a bodily alcohol level of 0.08 grams or more per 100 milliliters of blood / 210 liters of breath / 67 milliliters of urine].
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"Under the influence of alcohol" means that because of drinking alcohol, the defendant's ability to operate a motor vehicle in a normal manner was substantially lessened. To be under the influence, a person does not have to be what is called "dead drunk," that is, falling down or hardly able to stand up. On the other hand, just because a person has drunk alcohol or smells of alcohol does not prove, by itself, that the person is under the influence of alcohol. The test is whether, because of drinking alcohol, the defendant's mental or physical condition was significantly affected and the defendant was no longer able to operate a vehicle in a normal manner.
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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