Procedural History of the Case

Allegedly, the defendant was charged with multiple offenses, including a third offense DUI, arising out of a traffic stop. He pled no contest, after which he was sentenced to concurrent prison terms. The longest sentence was for six to twenty years for his DUI conviction. He subsequently filed a direct appeal in which he raised habeas claims. He challenged the legality of his sentence on three grounds. Specifically, he argued it was unreasonable and disproportionately harsh in comparison to the severity of his offenses, he was denied a hearing regarding his prior conviction record, and his sentence arose out of erroneous scoring of the offense variables.

Statute of Limitations for Seeking Habeas Relief

If a defendant files a habeas petition, the court must first examine it to determine if it demonstrates, on its face, that they are not entitled to relief. If so, the court should dismiss the petition. A preliminary assessment in evaluating the petition is whether the defendant filed it within the one-year statute of limitations.

The one-year statutory period can be equitably tolled, but the defendant bears the burden of proving such relief is warranted, and such relief is generally granted sparingly. A party seeking equitable tolling must demonstrate he has been diligently pursuing his claims, but an extraordinary circumstance arose that prevented him from filing the claim in a timely manner.

In the subject case, the defendant admitted his petition was five months later but argued he was entitled to equitable tolling due to conditions relating to the COVID-19 pandemic. He failed to explain how the pandemic impacted the pursuit of his claims or should that he was diligent in his pursuit, however. Thus, the court denied his petition as untimely.

Meet with a Trusted Michigan Criminal Defense Attorney

DUI offenses can carry significant penalties, and the penalties increase with each subsequent offense. If you are charged with a DUI offense, it is in your best interest to meet with an attorney to discuss your options for seeking a just outcome. Sam Bernstein of ArborYpsi Law is a trusted Michigan DUI defense lawyer with the skills and resources needed to obtain favorable results, and if you hire him, he will work tirelessly on your behalf. You can contact Mr. Bernstein via the form online or by calling (734) 883-9584 to set up a conference.

Understanding DUI Charges

Many people think that the prosecution’s case is based entirely upon how you performed in the field sobriety tests or the breathalyzer results. While these are key pieces of evidence in their case, they are susceptible to challenge, and they, therefore, need to rely on other evidence as well. For example, the prosecution will also introduce evidence concerning the following:

• Probable cause. The police need probable cause to pull you over. As a result, the prosecution will need to introduce evidence that demonstrates why you were pulled over in the first place, such as a broken tail light or you were speeding.
• The officer’s observations at the time you were stopped. For example, the prosecution may need the officer to testify that they smelled alcohol on your breath, your eyes were watery, or your responses to their questions were rambling and incoherent.
• Your own actions and statements. The officer may also testify as to what you said and did at the time you were arrested.

Ultimately, the prosecution wants their case to represent a complete picture of your guilt. Many people don’t realize that the police are trained to conduct DUI stops in a way that helps the prosecution build their case. An experienced Ann Arbor DUI lawyer can evaluate the case against you and identify potential weaknesses.

Guarding Against Probable Cause

Around the holidays and on Friday and Saturday nights, it’s no secret that many of the traffic stops conducted by police are really DUI stops. To establish probable cause, however, the police need only minimal justification for the stop. Believe it or not, the police often overreach and make traffic stops without justification. As a result, it’s a good idea to keep your vehicle in good repair and be sure to follow all traffic laws if you have had a couple of drinks. If the police cannot prove that they had probable cause, your DUI charge may be thrown out.

Remain Calm

If you get pulled over, do your best to remain calm and keep an even temper. It’s normal to be nervous during a traffic stop, but do not become overly aggressive or defensive. The officer will testify about your behavior when you were pulled over and will use your behavior as evidence of your guilt.

Watch What You Say

As mentioned above, the police are trained to ask questions that will help build their case. Even seemingly harmless questions such as “where were you tonight?” are intended to gather information that can be used against you. Many people volunteer too much information when they are pulled over – they are afraid that they will look guilty if they don’t answer all of the officer’s questions. You have the right to remain silent and are not obligated to answer questions beyond those related to your identity.

Contact Ann Arbor DUI Lawyer Sam Bernstein Today

A DUI conviction can carry serious consequences, and cooperation will not lead to a more lenient result. You need someone on your side who will fight for a fair outcome. If you’ve been charged with DUI, contact ArborYpsi Law at (734) 883-9584 to schedule a free consultation right away.

Were you charged with a misdemeanor operating while intoxicated? Being charged with an OWI is stressful, and the legal process is confusing. ArborYpsi Law is here to help you. Learn more about the process of working with an Ann Arbor DUI Lawyer.

Below is a general outline of the court process, what to expect, and an explanation of the options.

Ann Arbor DUI Lawyer’s First Step: An Arraignment

An arraignment is the first step in the court process and serves several purposes.

• First, the court informs you of the official charge and the maximum punishment of that charge.
• Second, the Court order conditions of bail and bond. Bond conditions are requirements imposed by the court that will last until the resolution of the case. Bond conditions will vary by court. For example, some courts require defendants to post a large amount of money to the court and take daily breathe tests. A different Court might just give a defendant a personal recognizance bond, which means the defendant simply promises to show up for all court dates.
• Third, a person enters a not guilty plea.

In many instances, we ask a court to waive the arraignment, or to combine the arraignment with the next step in the court process, called the pre-trial conference.

Discovery Phase

During the early stages of the case, we obtain all the evidence the prosecution has in its possession.

• We file Freedom of Information Act requests with every police agency involved in the case.
• The police agencies then give us all the police reports, the videos from the police cars, and the background information related to the testing of the breath or blood for alcohol.
• We spend time going through all of the materials we receive to gain a complete understanding of the case.

Drinking and driving cases may seem open and shut to most people because these cases involve science and numbers. The reality is that these cases can be challenged on many grounds. Thorough preparation is how we discover and take advantage of those challenges.

Pre-trial Conference

The pre-trial conference is an opportunity for the defense attorney and the prosecutor to discuss the case. This will be an opportunity to discuss a plea bargain resolution with the prosecutor. If a plea bargain is not the goal, then we inform the judge that we intend to set the case on track for trial.

Decision for Resolution

A criminal case is resolved in one of two ways, and it’s the client’s decision, not the lawyers. A person is never under an obligation to plead guilty. This holds true even if they did, in fact, drink and drive.

A plea bargain is the first method of resolution. A plea bargain is where a person admits guilt and in exchange for some benefit in return.

• For example, a person may admit guilt in exchange for a dismissal of the original charge in exchange for a conviction to an offense with lesser consequences.
• Another example would be a guilty plea in exchange for a promise from the judge for no jail time.

A trial is the second method of resolution. You always have the right to trial. We will take any case to trial so long as you give us the green light for trial.

• In some cases, the Client may be innocent.
• In some cases, the prosecution’s ability to prove a crime beyond a reasonable doubt questionable.

Before getting to trial, the defense attorney may file motions in order to chip away at the prosecution’s evidence.

There are advantages and disadvantages for each option. It will be necessary to thoroughly discuss the case with an attorney to understand which option is best for you fully.

Pre-trial Motion Hearings

Where appropriate, we file a pre-trial motion to schedule an evidentiary hearing before the trial. The goal of motion would be to gain a strategic advantage by suppressing the prosecution’s evidence. The suppression of evidence can lead to a dismissal of the case, or perhaps a weakening of the prosecution’s case that may lead to a favorable plea bargain.

A motion could be on any number of issues. For example;

• Did the police have the legal ability to stop your car?
• Was there enough probable cause to arrest you?
• Was the blood draw performed accurately?
• Was the breath test performed in the right way?

As in any game of strategy, the goal is to gain a better position over your opponent to increase your chance of victory. Any weakening of the prosecution’s evidence will result in a strengthening of your position. The better your position going into the trial the better your odds of a win.

Going to Trial with an Ann Arbor DUI Lawyer

If the case has not resolved with a plea resolution, then the case will go to a trial. You can choose to have either a jury or a judge sitting as the decision-maker in a trial. A jury trial is preferable. However, there may be considerations that make a bench trial appropriate.

A trial is a test of the sufficiency of the prosecution’s evidence against you. The prosecution must prove each element of the crime charged beyond a reasonable doubt for there to be a finding of guilt. This is a high burden to reach. We hold the prosecution accountable to that burden.

Statistically, a very small percentage of criminal cases go to trial.

The reality is that many more cases should go to trial. Fightable DUI cases often go unchallenged. Also, many prosecutors are unwilling to offer plea bargains on drunk driving cases.

With no available plea resolutions, your options are either plead guilty as charged or take the case to trial. When you have nothing to lose, you may have everything to gain by taking the case to trial.

A win at trial means the case is over. A conviction at trial means the person will go on to a sentencing hearing.

Sentencing

Following a plea bargain or conviction by trial there will be a sentencing hearing in front of the judge. Before sentencing, the person will meet with a probation officer, who will conduct an interview and make a sentencing recommendation.

• Possible outcomes at sentencing can include jail, probation, community service, fines, and attendance at AA meetings or educational classes.

Following a conviction, there will also be driver’s license sanctions, which vary according to the particular offense. What happens at sentencing will be based on the individual convicted and the sentencing judge. Everyone is different, with different backgrounds, past convictions, substance abuse issues, and work and family backgrounds. In addition, judges are all different too. Different judges will have sentencing philosophies that will vary.

• One Court may sentence a first offender to six months of probation with no oversight, while another Court may sentence that same person to five days in jail with 18 months of reporting probation.

At sentencing, the attorney and defendant will have a chance to speak to the judge, a speech called allocution. This is an opportunity to provide the judge with information that may impact your sentence.

Note: A felony DUI charge will involve a few more steps than discussed here. Also, DUI cases will involve consequences to your driver’s license.

Work with an Ann Arbor DUI Lawyer, Contact Us at 734.883.9584 for a Free Initial Consultation

Call Sam Bernstein at 734.883.9584 or at bernstein@arborypsilaw.com.

Sam Bernstein is a Drunk Driving Attorney in Ann Arbor.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

Interested to Learn More OWI Law? Read On

• Fighting DUI Cases
• Drug Recognition Experts
• What to Do After a DUI Arrest
• What to Do When Pulled Over for Drinking and Driving

Unfortunately, the police are very aggressive when it comes to DUI enforcement, so there probably isn’t much you can do to avoid being changed. The goal is to avoid helping the police build a case against you. If you’ve been charged with DUI, an Ann Arbor DUI lawyer can challenge the prosecution’s case and help you get a fair result.

Breathalyzer Tests

There are two breathalyzer tests that are typically administered as part of a DUI arrest. The first is a roadside test, or “preliminary breathalyzer test” (PBT). You have the right to refuse this test. If you choose to do so, you face a civil infraction and fine, but there will be no license suspension or points on your license. That said, similar to the field sobriety test, the officer may still arrest you for DUI if they believe they have sufficient basis.

There is a second breathalyzer test that is administered at the station after you have been arrested. Michigan is an “implied consent” state, which means that you have consented to a breathalyzer or blood test to demonstrate your BAC. Should you refuse either test, your license will be suspended for one year – a penalty that may be heavier than what you would face for a first-time DUI.

Breathalyzers are sophisticated pieces of equipment that must be properly calibrated and operated by people who are trained to use them properly. A skilled Ann Arbor DUI lawyer will be able to analyze the test and determine whether the results can be challenged.

Blood Tests

As mentioned above, the police may ask you to take a blood test instead of a breathalyzer test once you are taken to the police station. This is common in cases where the police suspect that you are driving while under the influence of drugs. Similar to the breathalyzer, your license will be suspended for one year if you refuse the blood test. And just as with breathalyzer tests, an Ann Arbor DUI lawyer can challenge the test on the basis that the test was performed incorrectly or the samples were mishandled.

You Have the Right to an Attorney

If you are arrested for DUI, you do not have to face your charges alone. Too many people fall into the trap of thinking that hiring an attorney will make them look guilty or that the prosecution will be lenient if they cooperate. This is not the case. The prosecution is not required to explain the law to you or reveal any weaknesses in your case. Under the Constitution, you are entitled to be represented by counsel, and you are likely to get a far better result when you work with an experienced Ann Arbor DUI lawyer.

Contact Ann Arbor DUI Lawyer Sam Bernstein Today

Hundreds of people will likely be charged with DUI this holiday season. If you find yourself facing DUI charges, attorney Sam Bernstein can help you get a fair result. Contact us today at 734-883-9584 to schedule a free consultation to begin putting your charges behind you.

Obviously, the best way to avoid a DUI is to not drive if you have been drinking or under the influence of drugs. However, it’s important to understand that you have rights in the event that you do get pulled over. In the event that you are charged with DUI, the best thing you can do is speak with an Ann Arbor DUI lawyer as soon as possible.

Know Your Rights When You Are Pulled Over

Unless you are stopped at a DUI checkpoint, every DUI begins with a traffic stop. The police can stop you for almost any reason, such as a broken tail light – it doesn’t need to be based on suspicion of DUI. Most people are inclined to cooperate with the officer’s instructions but don’t realize that the police use several tactics from the very outset to help build their case.

• You have the right to remain silent. The officer will ask you several questions about where you are coming from, where you are going, or whether you have had anything to drink. Most people will answer these questions because they are afraid to appear uncooperative. However, you are not obligated to answer these questions. Keep in mind that your passengers also have the right to remain silent.
• You are not obligated to roll your window down all the way. This is a tactic that police employ to allow them to smell alcohol or marijuana. You only need to roll the window down far enough so that you can communicate with them clearly.
• Do not consent to a search. The police must have a warrant to search your vehicle unless you give them permission.

Remain calm, turn on your interior lights, keep your hands on the steering wheel, and do not be disrespectful towards the officer. Do not search for your license and registration until instructed to do so.

The Field Sobriety Tests

If the officer has reason to suspect that you are driving under the influence, they will likely ask you to perform field sobriety tests. Under Michigan law, you are not required to comply with this request. However, be aware that the officer may still arrest you for DUI and the prosecution may attempt to use your refusal as evidence against you.

Field sobriety tests are often administered incorrectly and the results are often unreliable. An experienced Ann Arbor DUI lawyer can review the tests performed and determine whether they were administered correctly.

Charged with DUI? Contact Ann Arbor DUI Lawyer Sam Bernstein

For most people, DUIs are some of the most serious charges you can face. A conviction could have long term consequences and cost you thousands of dollars in fines. If you’ve been charged with DUI, you need a lawyer who will protect your rights and make sure you get a fair result. Call us at 734-883-9584 or contact us online to schedule a free consultation to discuss your case and how we can help.

If your child is facing charges related to underage drinking, you should contact an Ann Arbor DUI attorney as soon as possible. They can help you understand your options and fight for your child’s future.

Drinking at Home or Alone

Because public gatherings are limited, many underage people choose to drink at home or in smaller groups. While large parties tend to focus on law enforcement’s efforts to stop underage drinking, you should be aware that police are always concerned about underage drinking. A routine traffic stop or responding to a complaint can quickly result in a criminal charge.

Michigan’s Underage Drinking Laws

Like every other state, it is against the law in Michigan for anyone under the age of 18 to purchase, consume, or possess alcohol. The penalties you could face are as follows:

• A first offense is considered a civil infraction with a fine of $100. You may also be ordered to undergo substance abuse counseling and perform community service.
• A second offense is a misdemeanor. You could face a fine of up to $200 and up to 30 days in jail. Again, the judge may order you to undergo substance abuse counseling and to perform community service.
• A third offense is also a misdemeanor, punishable by up to 60 days in jail and a fine of $500.

Keep in mind that you can be charged with Minor in Possession even with an empty bottle or can. You can be charged even if the container isn’t in your actual possession.

Underage DUI Charges

Michigan has a “zero tolerance” law when it comes to underage drinking and driving. People over the age of 21 face DUI charges if they have a blood alcohol content (BAC) of .08% or higher. Persons under the age of 21 can be charged with DUI with a BAC of only .02%, which is significantly lower. If convicted, you could face the following penalties:

• First offense: a fine of $250 and up to 360 hours of community service. Your license will also be suspended.
• Second offense: a fine of $500 and up to 93 days in jail plus up to 60 days in jail, in addition to the suspension of your license and other penalties.

Contact an Ann Arbor DUI Attorney Today

Charges related to underage drinking are serious and can carry significant consequences, even if you are a first-time offender. Ann Arbor DUI attorney Sam Bernstein has the knowledge and experience you need to put this behind you. If you’d like to discuss your case and how he can help you get a fair result, call us at 734-883-9584 or contact us online to schedule a free consultation.

Of course, that doesn’t mean that you can’t still be arrested for DUI. If you find yourself facing charges, you should discuss your case with an Ann Arbor DUI attorney as soon as possible.

DUI Charges are Often Unexpected

For those of us who have lost income due to the pandemic, going out to a bar or restaurant may not be in the budget right now. While there is nothing wrong with enjoying some drinks with friends or family while at home, you could be stopped and arrested for DUI on your way home or to go somewhere else. As in every other state, you can be charged with DUI in Michigan if you have a blood alcohol content (BAC) of .08% or higher. Depending on your weight and several other factors, this could be far fewer drinks than you realize, perhaps as few as two drinks. You should also be aware that, under Michigan law, you can be charged with DUI even without a breathalyzer if the officer believes that you were driving while visibly intoxicated.

Marijuana

The recreational use of marijuana is now legal in Michigan for people over the age of 21. However, it’s important to remember that, just as with alcohol, it’s illegal to drive while under the influence of marijuana. Any presence of marijuana in your system is sufficient to justify a DUI charge.

There are a number of particular issues in a DUI case that involves marijuana. For example, marijuana can be detectable in your system far longer than alcohol. As a result, you may be able to challenge the assumption that you were impaired or that your impairment was due to the presence of marijuana. If you’ve been arrested for a marijuana-related DUI, an experienced Ann Arbor DUI attorney can evaluate your case and explain your options.

What You Can Do

The best defense to a DUI charge is to avoid getting arrested in the first place. Here are some practical tips to avoid getting a DUI charge:

• The best option is to avoid driving altogether if you are drinking or using marijuana. Ask a friend to drive, order an Uber, or take public transportation.
• Do not drink or use marijuana in your car, even if you are not driving. You could be charged with DUI even if the engine is off.
• If you know you will have to drive later on, stop drinking long before you have to leave. If you are using marijuana, wait until you are certain that you are completely sober.
• Be mindful of your consumption and practice moderation.
• If you are on prescription medications, be aware of any side effects that may occur when combined with other substances. You can be charged with DUI while under the influence of prescription drugs.

Charged with DUI? Contact an Ann Arbor DUI Attorney at ArborYpsi Law

A DUI conviction carries serious consequences – your license will be suspended, you face thousands of dollars in fines, and you could even go to jail. Fortunately, you don’t have to face your charges alone. Ann Arbor DUI attorney Sam Bernstein can help you get a fair result. Contact us today at 734-883-9584 for a free consultation to start putting your charges behind you.

Two lawmakers in Wisconsin are trying to change this. These are State Rep Jim Ott and State Senator Alberta Darling, whose goal is to bring harsher OWI laws to Wisconsin.

What Would Change For Wisconsin Laws?

In one proposal, Wisconsin’s first-offense OWI would become a misdemeanor, punishable by 30 days in jail and a $500 fine. At the discretion of a judge, the misdemeanor could be reduced to a civil infraction if the person does not receive another OWI conviction within five years.

A first-time offender would have to appear in court if the OWI remains a civil infraction.

Another proposal would create a mandatory minimum of at least five years in prison for a drunk driver who kills someone. For fifth and sixth OWI offenses, jail time would be a minimum of six months to 18 months.

A different lawmaker introduced a bill that would require all OWI offenders to have an ignition interlock in their car.

First-Offense Wisconsin OWI Has Some Strict Penalties

A first-time OWI offender still faces penalties for the civil infraction. With the civil infraction comes a license suspension of 6 to 9 months. Drivers with a blood alcohol content of over .15 must place an ignition interlock in their car.

Contrast that with the driver’s license penalties in Michigan. A first-offense operating while visibly impaired carries no driver’s license suspension, just restrictions. An operating while intoxicated conviction has a 30-day suspension followed by restrictions. And an operating while intoxicated with a BAC of .17 carries a 45-day suspension, restrictions for a year, and an ignition interlock in the vehicle for one year.

Neighboring States

In Minnesota, a first offense is a misdemeanor, with a possible 90 days in jail and a $1,000 fine. A first-offense in Illinois carries up to one year in jail and a $2,500 fine. A first-offense in Michigan is a 93 day misdemeanor.

Drinking in Wisconsin

The University of Wisconsin Alcohol Policy Project estimates that on average, Wisconsin drinkers have 634 drinker per year. This is 25% higher than the national average. The 5,000 member Tavern League of Wisconsin is a powerful industry lobby. The state’s drinking culture may have contributed to the lax OWI policies.These factors may ensure that Wisconsin laws don’t change anytime soon.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Criminal Defense Attorney focusing on DUI Law in Washtenaw County.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

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After Campbell was charged, investigators reached a conclusion that although her Honda Odyssey was involved in the crash, Campbell was not the one at the wheel. Since then Campbell’s felony DUI charge has been dropped. She has now been charged with accessory to a felony. According to her attorney, Randy Chambers, Campbell has consistently maintained her innocence. She has claimed from the beginning that she was not driving at the time of the accident.

What Lead to the Incorrect Charge?

Since Campbell owned the Honda Odyssey a traffic ticket was issued under her name. In addition, there was a warrant granted after Faucett’s death that stated it believed Campbell was drinking and driving or using drugs and driving the night of the incident.

Who was driving?

Investigators determined that James Michael Smith was the driver. He has now been charged with a hit and run resulting in death, failure to yield the right of way, resisting arrest, trafficking meth or cocaine base, possession of marijuana with intent to distribute, and driving under suspension. Since 2005 Smith has also been convicted of burglary, drug and driving crimes.

The Aftermath

Now Campbell faces charges that she allegedly assisted Smith to cover up the hit and run resulting in death. However, there is no documentation from the Freedom of Information Act (FOIA) that indicates how she assisted Smith.

In South Carolina, a hit and run resulting in death can result in anywhere from 1-25 years in prison with a $10,000-25,000 fine

In Michigan, a hit and run resulting in death can result in a criminal felony charge. If convicted. the defendant can serve up to 15 years in prison and/or be responsible for a $10,000 fine.

Felony OWI in Michigan

A person can be charged with a felony OWI in Michigan if they have had two previous drunk driving convictions, regardless of how old a previous conviction may be. A previous conviction includes convictions in other states. The first two OWIs a person is charged with is charged as a misdemeanor. A felony OWI is more serious than a misdemeanor OWI. A felony OWI is punishable by a minimum of 30 days in jail, or prison. This means a conviction for a third-offense operating while intoxicated will result in incarceration of some length.

ArborYpsi Law Takeaways

Campbell was falsely charged with a crime that she did not commit. In serious DUI and hit and run cases, like the one above, it is best to not talk to the authorities. Instead let your attorney communicate with the investigators so that your innocence can be proven.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a criminal defense lawyer in Washtenaw County.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

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Call ArborYpsi Law if You’ve Been Charged With Drunk Driving

Not all attorneys are the same. Not even all criminal defense attorneys are the same. Many criminal defense attorneys are unwilling or unable to proactively fight OWI charges. This is not the case with ArborYpsi Law. We will fight your DUI case. We do not just walk clients in and plead them guilty to the first offer on the table (which is usually the only offer in OWI cases). We study the law and the science. Several times a year we attend Michigan OWI Attorneys seminars to improve out OWI trial skills, learn the science, and perfect our craft. Beating OWI charges is not easy and takes a lot of work – hard work is really the secret. That, and an attitude that OWI cases must be fought and can be won.

In Mitchell v. Wisconsin, The Supreme Court ruled that police generally do not need a warrant for a blood draw on an unconscious DUI suspect. This is because situations with unconscious DUI suspects generally require increased responsibilities for police and prevent them from immediately getting warrants. There may some exceptions to this rule, however, such as where the situation does not prevent police from getting a warrant immediately.

What Happened in the Case

Mitchell was arrested for operating while intoxicated. A preliminary breath test (PBT) revealed a blood alcohol content of .24. While en route to the police station to take a more accurate breath test, he passed out, making it impossible to perform the breath test. Police brought him directly the hospital for a blood test. A police officer read Mitchell his implied consent rights.

Implied consent is law in Wisconsin and every other state. Implied consent essentially means that drivers arrested for driving under the influence automatically consent to an alcohol or drug test. The driver will be read their rights. The rights basically say a driver consents, but if they don’t consent, then police will get a warrant (and they always will be able to get a warrant). Each state will have driver’s license penalties for refusing consent to a test. In Michigan, that penalty is a one-year driver’s license suspension, although you can get a restricted license.

Back to the story. When the police officer read Mitchell his implied consent rights he got no response. The officer then went forward with the blood test without a warrant.

What Happened Legally Speaking

Mitchell was charged with two counts of operating while intoxicated crimes. He moved to suppress the blood results on the grounds that the blood test violated his Fourth Amendment rights in that it was an unreasonable search and seizure. He lost his motion to suppress, then lost the trial, then appealed all the way to the U.S. Supreme Court.

The Court’s Ruling

At a starting point, a blood test for blood alcohol content is a search. To conduct a search, police either need a warrant, consent, or exigent circumstances. An exigent circumstance is a compelling need to act without a warrant. One type of exigent circumstance is where evidence of a crime might disappear.

The Court first looked back to its decision in Missouri v. McNeely. In McNeely, the Court ruled that police must get a warrant to perform a blood test of DUI suspects. Prosecutors had tried to get a ruling from the Court saying that alcohol leaving the body at a quick rate is an exigent circumstance justifying a warrantless search.

The exigent circumstance would have been the disappearance of evidence. That is, the evidence that someone had alcohol in their system might disappear if police are forced to get a warrant. Alcohol leaves the body at a rate of about one drink per hour. Waiting too long to test a driver’s blood for alcohol might mean that no alcohol would remain in the body by the time a test is done. In other words, if police have to wait too long to get a blood test, then the person would get away with the accused crime.

The Court in McNeely believed that just because alcohol disappears from the body at a quick rate is not enough to justify a warrantless search. Essentially, the Court said that police are able to get warrants very fast in this modern world, thus eliminating the urgent need to take blood without a warrant. Technology facilitates police ability to get warrants from magistrates and judges.

Then in a later case, the Court ruled that the disappearance of alcohol from the body did justify a warrantless blood test for a drunk driver who got into a car accident. This is because the car accident created further duties for the police which delayed the ability to get the warrant. There was an increased chance that the alcohol would be gone from the body in this scenario because the police are busy with tending to the car accident.

In other words, the urgency to get a warrant in a standard DUI case isn’t that high. Police are able to get a warrant quickly enough and in the standard DUI case there is no other delay. There is a higher urgency in a case where there is more going on than a plain old pull-over and arrest. This is because police are not able to get the warrant as quickly because they have other things to do (such as tend to a car crash scene).

Exigent Circumstances

The Court in this case is focused on a category of DUI drivers – unconscious drivers. At a starting point, an unconscious driver cannot take a breathalyzer or datamaster breath test at the police station. Because they are unconscious, they cannot blow into the machine. An unconscious DUI suspect must have a blood test for police to get the BAC.

In the Court’s view, unconscious drivers created more work for officers because the driver must be taken to the hospital for medical attention or at the least time spent on medical attention at the scene of arrest. Also, an unconscious driver might also mean an unsafe or dangerous situation that officers need to attend. The increased responsibilities of officers with unconscious drivers means less time to get a warrant. Less time to get a warrant means increased possibility that the evidence of blood alcohol content will be gone by the time a blood test can be performed.

Exception to the Rule

The Court did make one exception for these unconscious driver cases. The Court did not “rule out the possibility that in an unusual case a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.” This means there may be times where although s suspect is unconscious, police are not prevented from quickly getting a warrant due to other responsibilities. This will be an area of litigation in these cases.

Call us

Contact Sam Bernstein at 734-883-9584 or by e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a DUI Lawyer in Ann Arbor.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

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ArborYpsi Law Focuses on Drinking and Driving Cases

Many people charged with operating while intoxicated don’t take the charge seriously. They walk into court and plead guilty to the first opportunity. Which usually means they plead as charged or at the best to operating while visibly impaired, which in Michigan is essentially the same thing as operating while intoxicated. Why don’t people take it seriously? Well, because it doesn’t seem like a big deal, or just to “get it over with,” or because they think there’s nothing that can be done with the case. Or because the person’s lawyer doesn’t treat the case seriously.

These are serious cases. A first-offense OWI usually doesn’t result in jail time. But it is a criminal misdemeanor which will go on your record for life. An OWI conviction can never be removed from your permanent record. It can always be looked up and can follow you for life.

We take OWI charges seriously. We will thoroughly review the case for all potential legal challenges because you deserve nothing less. OWI cases can be challenged. We will do everything in our power to challenge your case to keep your record clean.

The Mothers Against Drunk Driving group believes this particular law will reduce the casualties of drunk driving. Mary Kate DePamphilis, a program director for MADD, claims other states have seen a 50% decrease in drunk driving related casualties since implementing an interlock device law. The state of Massachusetts, which does not have interlock legislation in place for first time offenders, saw 120 drunk driving casualties in 2017 and 148 drunk driving casualties in 2016.

Interlock devices have reduced drunk driving fatalities by seven percent in participating states. Currently 32 states require an interlock system to be installed if an individual’s BAC is .08 or higher.

What are Michigan’s Ignition Interlock Laws?

A person convicted of operating while intoxicated with a high BAC (.17 or over) must have an ignition interlock with a restricted license for a period of one year following a 45 day license suspension.

Other people convicted of non-high BAC operating while intoxicated offenses may still be ordered by a court to use an ignition interlock device. However, this is not a mandatory sanction by the Secretary of State.

Two OWI convictions within seven years results in a revocation of the driver’s license, meaning no driving privileges whatsoever. After one year of revocation a person can apply for a license. The first step for that person is an ignition interlock in the car for at least one year if they are successful in getting a license.

If the ignition interlock system is tampered with or the system detects alcohol or is tampered with there can be another revocation of the license.

ArborYpsi Law Takeaways

Interlock systems have and will continue to save lives. While drinking and driving is a dangerous habit the interlock systems are put into place to allow first and repeat offenders to continue with their day-to-day life. Driving under the influence offenders have jobs they have to travel to in the morning. They have children and family that they need to transport to and from school and other activities. The interlock systems, while they are pricey and inconvenient, give DUI offenders the opportunity to continue to drive safely.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

ArborYpsi Law is located at 570 S Maple Ann Arbor, MI 48103.

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All We Do is Criminal Defense

Sam Bernstein is a criminal defense attorney in Ann Arbor, MI. He has represented clients in Washtenaw, Wayne, Livingston, Oakland, Lenawee and Jackson County. He has practiced criminal defense in Ypsilanti, Novi, Plymouth, Westland, Livonia, Ann Arbor, Saline, Chelsea, Jackson, Dexter, Brighton, Howell, and Wyandotte among other Metro-Detroit cities.

If you have been charged with Driving Under the Influence (DUI) or Driving While Intoxicated (DWI) call attorney Sam Bernstein. At ArborYpsi Law we hold no judgement for DUI offenders. Our goal is to obtain the best possible outcome for our clients. Drinking and driving can greatly alter an individual’s life, especially if a license if revoked. We want our clients to keep their jobs and be functional members in their families and communities. In order to do that we will fight for you regarding your DUI or DWI charge.

Sam Bernstein is a Washtenaw criminal defense attorney that represents clients charged with sexual assault, drug possesion, expungements, domestic violence, sex crimes, childhood endangerment, child abuse, diviorce, rape, driving under the influence, driving while intoxicated, traffic tickets, retail fraud, and assault and battery.

In 2017, a pilot program for a roadside saliva drug test was tested in five counties. This program involved the use of a quick drug test designed to see if a driver had certain drugs in their system. The test is similar to a preliminary breath test for alcohol. The test gives the police probable cause to make an arrest for an OWI.

This year the use of the roadside saliva test will expand statewide.

Results of the Roadside Saliva Test

Here are the number of arrests by county for the initial pilot program:

• Berrien – 23
• Delta – 3
• Kent – 12
• St. Clair – 3
• Washtenaw – 52

Is Drugged Driving on the Rise in Washtenaw County?

One Washtenaw Sheriff’s Deputy trained to detect drugged drivers stated drugged driving is on the rise. For Washtenaw County, in 2018, 81 traffic stops were based on drugged driving. In 2019 so far, 28 people have been pulled over for drugged driving. Statewide, drugged driving arrests are up 15%.

This begs the question – are more people driving while impaired by drugs or are police noticing and enforcing against drugged drivers more? Probably the latter.

The use of the roadside saliva test focuses enforcement on drugged drivers. In addition, more officer are trained as so-called “drug recognition evaluators,” officers looking for drivers who are impaired by drugs. The stepped up enforcement and education of officers may be the cause for the increased arrests. There is an increased recognition by officers of drivers impaired by prescription medications, as well.

So while drugged driving arrests have increased, it’s not necessarily true that more people are driving under the influence of drugs. It may just be that more officers are on the lookout for those drivers.

Call Us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Criminal Law Attorney in Ann Arbor.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI.

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For the last year or so, the Michigan Impaired Driving Safety Commission has researched whether the law should have a legal limit for marijuana.

The Commission declined to create a legal limit for marijuana.

This means to be in trouble for driving under the influence of marijuana, a person must actually be impaired from the marijuana. A person cannot be in trouble for simply driving with marijuana in their system, regardless of the amount.

Why Won’t There Be a Legal Limit?

The Commission gave two reasons why it declined to create a legal limit.

First, marijuana affects each person differently. More frequent users develop a tolerance to marijuana. This means a frequent user can use a greater amount of marijuana but not be as effected by the marijuana as a non-user. It’s difficult to say that a certain amount of marijuana equals impairment for a user when all users are different.

Second, marijuana leaves the system very fast. Marijuana may be out of a person’s system by the time the person gives a blood test. In addition, frequent users retain THC in their system longer than non-regular users. A blood test can falsely conclude a person is impaired by marijuana.

What Do Other States Do?

Other states chose to create per se amounts of marijuana.

• Colorado – 5ng
• Montana – 5ng
• Nevada – 2ng
• Ohio – 2ng
• Pennsylvania – 1ng
• Washington – 5ng

In these states, a driver with an amount of marijuana in their system over these amounts is presumed to be legally intoxicated. A driver under the amount is not assumed to be intoxicated, but could still be impaired.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is an Ann Arbor DUI Attorney.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

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Looking Toward the Future

Marijuana is now legal in Michigan. Some fear an increase in drivers impaired or intoxicated by marijuana. Whether the fear is real or not, ArborYpsi Law stays current on the marijuana laws. The laws on operating while intoxicated are complicated and are strict on drivers. ArborYpsi Law studies the law and science to bring you the best results.

Have you been arrested for a drinking and driving or drugged driving offense? The last thing you want to do is walk into court and plead guilty. A DUI conviction is a conviction that will always be on your record. It’s important to study the case for potential challenges. We will do that for you and challenge the case wherever possible. Call us for more information. Keep an eye out for future articles on marijuana and driving to learn more on this rapidly developing area of the law.

It is currently against the law to drive after drinking when a person has a .08 blood alcohol content. Many safety groups are unsatisfied with the .08 amount.

What Would This Mean Legally Speaking?

Right now, it is against the law to drive with a blood alcohol content of .08 or over. The law assumes a person is intoxicated at this level. A driver with a .08 BAC can be convicted of operating while intoxicated.

The change in the law would mean a person can be convicted of operating while intoxicated with a BAC of .05 or higher. The proposed law would assume that a person with a .05 BAC is intoxicated.

Are Drivers Impaired at .05?

Each person is different and alcohol effects each person differently. For example, BAC and effects of alcohol vary depending on a person’s weight, tolerance to alcohol, or how fast they have been drinking.

A .05 BAC is about a standard drink or maybe a little more than a standard drink less than .08. For some people, a .05 could be about two drinks or perhaps two large drinks.

Logically, a person would be less impaired at .05 than at .08. With the new law we would see more people arrested and convicted who weren’t truly impaired by alcohol.

Change in the Law Coming?

The proposed law comes after a change in the legal limit in Utah. Last December, Utah became the first state to lower the legal limit from .08 to .05. Utah was also the first state to lower the legal limit from .10 to .08 back almost thirty years ago. Whether Michigan actually makes this change remains to be seen. The legal landscape in Michigan is very different than Utah, which has a large conservative religious population.

Call Us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is an Ann Arbor DUI Attorney.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

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What Would This Mean?

These safety advocates would want to see an ignition interlock device in every car. An ignition interlock device is technology where a driver blows into a tube and it measures the driver’s blood alcohol content. The car won’t start if the person registers a blood alcohol content.

There are several companies that are working on less invasive alcohol-measuring devices. These include a device that detect alcohol through the fingertips or a device that measures the normal breathing of the person behind the wheel. These companies acknowledge that these newer technologies are not yet complete and are still in the early stages of development. The ignition interlock is still the go-to device for alcohol-measurements for drivers.

How Close is This to Reality?

The big car manufacturers are not advocating for this technology to be placed in cars. In reality, big companies generally push back against federal regulations which force changes to be made.

In addition, the technology isn’t free. The cost would be passed on to consumers, and this would create more push back by the public.

An ignition interlock device in every car would be unpopular and cumbersome for people who do a lot of driving. Your author, for instance, travels to three different courts a day, starting and stopping his car every time. Blowing into a machine every time would be a hassle and waste of time (I generally don’t drink between court hearings, don’t worry). I imagine this same mindset would apply to many others. Remember, the vast majority of drivers and not drinking and driving.

The Problem With Ignition Interlock Devices for the Public

Many of these ignition interlock devices are far from perfect. As machines, they have problems. They often shut down whenever a car has a battery issue (read Michigan wintertime).

Whenever this occurs, the Michigan Secretary of State hauls the driver into a hearing in which the driver must prove they did nothing wrong and should keep their driving privileges. The driver’s license gets suspended when an alleged violation with the ignition interlock occurs. The hearing usually takes at least a month to schedule, during which time they cannot drive. This could result in thousands and thousands of people losing their driving privileges either for a short period of time or longer.

The Current Status of Ignition Interlock Laws in Michigan

In Michigan, only certain drivers are required to put ignition interlock devices in their cars. These include people convicted of operating while intoxicated with a high BAC (a BAC of .17 or higher). These drivers must keep an ignition interlock device in their cars for about a year with a restricted driver’s license.

Also, people who lose their license from two or more DUI convictions must have an ignition interlock device in their car with a restricted license for at least a year before they may drive with a full license without an ignition interlock.

The third group of drivers with ignition interlock devices are those people in sobriety court. Sobriety court is a court program for those convicted of at least a second DUI offense. A second DUI conviction within seven years results in a driver’s license revocation. Sobriety court is a way around this, allowing drivers to keep their licenses while going through a rigorous program to help them achieve and maintain sobriety.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Washtenaw County Criminal Defense Attorney.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

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Roadside Saliva Tests

These saliva tests are similar to the preliminary breath test (PBT) given to drivers suspected of drinking alcohol. A positive test will give the police officer cause to arrest the person for drugged driving. Like the PBT, the test needs to be confirmed by a more reliable test – which means a blood test.

The saliva test is designed for limited types of drugs – amphetamines, benzodiazepines, marijuana, methamphetamines, and opiates. The big one police are looking for is marijuana.

Michigan voters have approved the use of legal marijuana. Police expect to see an increase in the number of drivers who use marijuana. The majority of positive tests in the pilot program are for marijuana.

Success Rate of Test?

Last year during the pilot program, 92 people were given the saliva test. Of the 92 people, 74 of them tested positive for marijuana. Later blood testing confirmed that only 63 of the 74 people had marijuana in this system. Blood tests is the most accurate form of testing.

What does that mean exactly? This means 11 people who tested positive for marijuana with the roadside test did not have marijuana in their system. That’s a large error rate.

Pilot Program Expanded

The roadside saliva drug tests started as a pilot program in Michigan. Five counties originally tried them out, including Berrien, Delta, Kent, St. Clair, and Washtenaw Counties. Police want to continue use of the test statewide to combat drivers high on marijuana. Read the ArborYpsi Law article on the Pilot Program.

There has been an increase in the number of Michigan traffic crashes for drivers with marijuana in their system. There were 78 marijuana-related traffic crashes in 2013. In 2017, that number was 169. In 2013, 70 of those were fatalities and in 131 of them were fatalities in 2017.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Criminal Defense Lawyer in Ann Arbor.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

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What Happened

WAZE is an App on which drivers share information about traffic, weather, accidents, etc. Users can post information so that other drivers can make good decisions. For example, a user might post information about a traffic backlog from an accident. Then a WAZE user would know to take another route.

Lately, users have been posting police DUI checkpoints on the App.

What’s a DUI Checkpoint?

A DUI checkpoint is where police set up a barrier make every car on the road stop to check if drivers have been drinking or using drugs. An older court case says police are allowed to do this (although it obviously sounds like a Fourth Amendment violation). Police obviously like DUI checkpoints because it eliminates the requirement of a reason to pull a driver over. In a DUI checkpoint, the police simply get to pull over every driver for no reason.

Police Are Upset

The New York Police Department, and presumably other departments, were upset at users posting DUI checkpoints. The NYPD told Google that these posts amounted to obstruction of justice. Google did not agree. Google responded that the feature is just another way drivers can make informed decision about the road.

Is This Really Obstruction of Justice?

While not making any legal conclusions, it’s difficult to say that this is truly obstruction of justice. Police activity is a matter of public importance. Sharing information on matters of public importance would seem to be protected by the First Amendment.

Notably, this police activity is not some state secret spy operation. The police are out in the open stopping cars. There’s nothing secret about it. Publishing such information in no way endangers the police.

The Future

Police are of course upset that the WAZE feature enables drunk drivers to get away with drinking and driving. A DUI checkpoint is an easy and cheap way to catch drunk drivers, so they make a lot of sense from an enforcement perspective. DUI checkpoints may not be the best police tactic in the age of information sharing technologies. Police might have to revert to such things as real work to stop drunk drivers.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Criminal Lawyer in Ann Arbor and Ypsilanti.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

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ArborYpsi Law Focuses on Drunk Driving Laws

Representing a client with a drunk driving charge is very different than in the past. Long gone are the days where a criminal defense attorney could get away with just standing next to his client and begging the judge for mercy after an OWI conviction. The law regarding the charge of operating while intoxicated has become more complex and strict and criminal defense attorneys must adapt. We must be prepared to challenge any and all evidence with a charge. To truly represent a person on an OWI requires the lawyer to make a commitment to study these cases and be prepared to fight them.

This is exactly what we do at ArborYpsi Law. Nowadays, many prosecutor office will not offer even the simplest plea bargain deals to defendants charged with operating while intoxicated. Criminal attorneys should respond with their own deals – a commitment to fight the case. At ArborYpsi Law, we spend generous amounts of time each year studying the law and science on OWI cases so that we may give you the best representation.

This chemical test will either be in the form of blowing into a machine at the police station or will be done through a blood draw. The test could be a urine test as well but that’s not common.

When is the Chemical Test Given?

Your general OWI fact pattern goes like this. A person is pulled over by a police officer. The officer has the person go through a series of field sobriety tests. The person is then given a preliminary breath test if the officer believes the person has been drinking.

Refusal of the preliminary breath test (PBT) is not the chemical test. A PBT refusal is a zero-point civil infraction. (Unless you’re under 21 – then it’s a 2 point civil infraction. Or unless you’re a CDL holder driving a commercial vehicle, then refusal of the PBT is a misdemeanor). Anyways, for most people, refusal of the PBT is not a big deal, and refusal is advisable if a police officer asks you to take a PBT (because you’re denying the police officer evidence to arrest you).

The chemical test is a different test than the PBT. The PBT is merely to give the police officer probable cause to arrest you. The chemical test is to measure the amount of alcohol or drugs in your system.

The consequences of refusing the PBT and refusing the chemical test are very different – more on the consequences for refusing the chemical test below.

The chemical test will be offered after a person suspected of operating while intoxicated is arrested. The person will be taken to the police station or to a hospital for a blood draw. Before either test is given, the police officer will read the person what’s called their chemical test rights.

The reality is these rights are impossible to understand for someone whose had a long night of cocktails. The rights are long-winded even for stone-sober people. The chemical test rights are not rights so much as they let you know the consequences of refusal. As far as rights go, a person who submits to a chemical test may also request the officer to take them to obtain a second, independent chemical test of their own.

What Happens if You Refuse the Chemical Test?

A refusal of a chemical test will result in a one-year suspension of your driver’s license. For most people, this penalty is often much steeper than the penalty for the OWI itself.

Most first-offense OWIs penalties, with the exception of some courts (mostly in Oakland County in southeastern Michigan), result in probation, testing, community service, educational classes, and no upfront jail time. A one-year driver’s license suspension can really hurt a person, though.

The suspension that results from a chemical test refusal is called an Implied Consent Suspension. The name comes from the legal concept that drivers in Michigan give implied consent to a chemical test if they are offered such a test when arrested for operating while intoxicated.

What Can You Do About an Implied Consent Suspension?

There are two things you can do when faced with an implied consent suspension.

First, you can fight the implied consent suspension. You must request a hearing with the Secretary of State within 14 days of getting notice of the suspension. This request must be sent, in writing within 14 days. Missing the 14 days period means missing the opportunity to proactively fight the suspension.

In an implied consent hearing, you will have an opportunity to fight the suspension. The main grounds on which to fight the suspension is that the refusal was reasonable. It is rare that the Secretary of State will agree that a refusal is reasonable, but it’s not impossible. It’s important for your attorney to aggressively represent you at this hearing where there are grounds to fight the suspension. There’s nothing to lose in the fight because you’re facing the suspension anyways and the attorney should always fight hard where there’s so much on the line.

Having said that, it is very difficult to fight the implied consent suspension at the hearing for two reasons.

First, the grounds on which to prevail are limited. And second, the burden of proof on the officer for proving there was an implied consent violation is much lower than the burden of proof at a criminal trial. The burden of proof at an implied consent hearing is preponderance of the evidence (like over 50%), whereas at a criminal trial the burden of proof is beyond a reasonable doubt (much higher, though giving it an actual percentage depends on who you ask).

Read More: What is an Implied Consent Hearing?

Hardship Appeals

The second way to deal with an implied consent suspension is to apply for a restricted license. This is called a hardship appeal. This appeal is done through circuit court. Although an implied consent suspension results in a one-year suspension, you may be eligible for a restricted license for that year. A restricted license means you can continue driving to all of the important places you must drive to, such as school and work. This restricted license is a huge relief to what would otherwise be a costly chemical test refusal.

Read More: What is a Hardship Appeal?

Will Refusing the Chemical Test Prevent Me From Being Prosecuted for Driving Under the Influence?

Many people arrested for an OWI believe that refusing the chemical test will help them beat the OWI. The reality is that refusal of the test will not prevent the police from getting a measurement of the alcohol or drugs in your system.

Read More: What to do When Pulled Over for Drinking and Driving

Once you refuse the test, the police will apply for a search warrant that enables them to take your blood, and by force if necessary. The police will apply for a search warrant and 99.99% of the time they will be granted the search warrant to obtain your blood. So your refusal of a chemical test will not prevent the police from measuring the drugs or alcohol in your system. The police are still going to get that measurement but with the refusal you get a license suspension in the process.

So What Does This Mean?

Best practice would be to submit to the chemical test (not the PBT). The police are going to get your blood if they want to. Don’t make it so you lose your license in the process.

Of course, if you’re reading this far into the article then you’ve probably already refused the chemical test. It happens, and from this point the best thing course of action would be to exercise both options for dealing with the implied consent suspension. The best thing to do would be to request a hearing on the implied consent suspension while also preparing for the hardship appeal. This gives you the opportunity to fight the suspension at the hearing (while delaying the suspension to work on the appeal), while also preparing for the appeal.

This Was a Lot of Information

If you’ve made it this far into the article I can certainly understand if this feels like a lot of information, possibly overwhelming. That’s what lawyers are for.

Call ArborYpsi Law to see how we can help you navigate these legal fields. Every week we help people with driver’s license issues and we look forward to helping you with any you might have. We have lots of experience with implied consent hearings and hardship appeals, and can assist you in your case.

Call us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is an Ann Arbor attorney focusing on DUI law and criminal defense.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

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Any Driver’s License Suspension Leads to 36 Months of CDL Eligibility

For starters, any type of driver’s license suspension or revocation will make you ineligible for a CDL for 36 months (3 years).

Two of the most common DUI charges carry a driver’s license suspension. The standard DUI charge, operating while intoxicated, carries a 30-day driver’s license suspension. Operating while intoxicated with a high BAC carries a 45-day driver’s license suspension. So a conviction for either of these two offenses means you cannot apply for a CDL within 3 years from the date of conviction.

Also, both of these convictions result in the addition of 6 points to your driver’s license. A person receiving any 6-point driving offense will be ineligible for a CDL for 36 months. This is an alternative way in which these standard OWI convictions make you ineligible for a CDL.

Operating While Visibly Impaired

A conviction for operating while visibly impaired, another common drinking and driving offense, will make you ineligible for a CDL for 24-months. This is a year less than the ineligibility from the OWI or OWI-High BAC. A person convicted of operating while visibly impaired receives no driver’s license suspension, only driver’s license restrictions.

Operating while visibly impaired carries only 4 points, as opposed to 6 points.

The Reality of a DUI Conviction for a CDL

A conviction for any drinking and driving offense will always be on your criminal and driving record. These types of convictions can never be expunged. This means an potential employer for a commercial driver will see you received a DUI at some point, even if you have a current valid CDL.

A DUI conviction could be a job-killer for those interested in driving a commercial vehicle. If you have been charged with a DUI and have a CDL or wish to begin a career driving commercially, do not simply go into court and plead guilty. Have a lawyer look over the charges to see how you can fight them. A DUI conviction can have a life-long impact because it will always be on your record. It is worth your time to see if you can fight the charge and keep your record clean.

Call Us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Criminal Defense Lawyer in Ann Arbor and Ypsilanti.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

Read More

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DUI stands for driving under the influence. OWI stands for operating while intoxicated.

Both phrases mean the same thing, which is a term for the crime drinking and driving (or drugged driving). The phrase operating while intoxicated is the correct term from a legal standpoint. However, the phrase driving under the influence is used so often that people use it for operating while intoxicated. Perhaps other states have a law called driving under the influence on the books.

The Main Difference Between OWI and DUI

The biggest difference between OWI and DUI lies in the difference between “driving” and “operating.” I’ve discussed this difference more fully in other articles, such as What is the “Operating”in Operating While Intoxicated? The act of operating encompasses more activity than simply driving. The people who wrote the law did this to ensure that drinking and driving is more than just driving.

“Operating” means actual physical control of the vehicle. We all know what driving means. Operating is more than just driving. One example of operation could be sitting in the car with your foot on the brake while the car is running. This wouldn’t necessarily be driving, but would be operation, at least according to courts.

Under the Influence v. Intoxicated

Both of these terms are found in the operating while intoxicated legal statute. Intoxicated can mean a person either has a blood alcohol content of over .08 or is “under the influence” of alcohol. “Under the Influence” means a person ability to drive is substantially effected by alcohol or drugs. So the phrases reference the same thing but in different ways.

What is Driving While Intoxicated?

Driving While Intoxicated is just another way of saying driving under the influence or operating while intoxicated.

Contact Us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is a Criminal Defense Attorney in Washtenaw County.

ArborYpsi Law is located at 570 S Maple, Ann Arbor, MI 48103.

Read More

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