Defenses, Field Sobriety Tests, Super Drunk Driving, and other Issues after an OWI/DUI Arrest in Michigan.

The temptation to drink and drive can be great. Social events, such as sports events, retirement parties, weddings, golf outing usually offer alcohol and are commonplace in our culture.

What happens when a cop pulls over a driver and suspects they have been drinking? That cop may already have it in his mind that you are over the legal limit based on your driving alone. It is the position of the police that drivers are more likely to speed, look at their phones, be distracted in general, or use poor judgment if they have been consuming alcohol. And furthermore, in many cases, poor judgment leads to serious injury accidents or death

Field Sobriety Tests

A police officer may ask a driver suspected of driving while intoxicated to engage in field sobriety tests, but in most states, these tests are voluntary, and you have a right to refuse to participate. Police officers in Michigan often want to administer one or more of these three common field sobriety tests to determine if a driver is legally intoxicated. Remember, field sobriety tests are strictly voluntary. You may refuse to take any of these field sobriety tests. There is no penalty for refusing to take one. The three common field sobriety tests are:

Horizontal Gaze Nystagmus (HGN) – This test requires you to follow a light with your eyes without moving your head. This test requires that you do not use your natural reaction of moving your head. Also, this test cannot be viewed by very easily by a body camera. Thus, it is much harder to verify.  Police officers who administer this test are looking for involuntary eye movements known as horizontal gaze nystagmus, in which a person’s eyes bounce or move erratically from side to side or up and down.

One Leg Stand (OLS) – This test involves standing on one leg and raising the other foot 6 inches in the air and holding the raised foot in place for approximately 30 seconds. This test would be extremely difficult for any older person with balance or issues with their feet.

Walk and Turn (WAT) – This test requires people to walk heel to toe in a straight line. At a certain point, the person must then turn and walk back the same way. Again, the one leg stand test can be difficult for any person. Additionally, the tests are often administered at night. This can make it difficult to see the ground and the pavement can be uneven.

Alphabet- Asking a driver to recite the alphabet without singing it. In some cases they have gone so far as to ask a driver to say the alphabet backwards or start in the middle and stop before the end. Any immigrant or person unfamiliar with the language would have difficulty completing this test.

The field sobriety test is just used to help the officer to establish in court that there was probable cause to stop the person. The test is not an objective measure of an individual’s BAC; therefore, even though the officer will use the information from the tests in court, field sobriety tests are not objective measures of legal intoxication.

There are several ways the police conclude that a driver has failed the field sobriety tests. Here are some ways officers say the test was failed:

Being unable to maintain balance while listening to the instructions

Asking to repeat instructions

Not understanding the instructions

Starting before instructions are completed

Stopping to regain balance while walking

Not touching heel-to-toe when stepping

Talking to the officer to much

 Slurred speech during test

Using arms for balance

Stepping off the straight line

Taking an incorrect number of steps

Making an improper turn

Of course, some situational factors can invalidate the use of these tests, such as a person who is on certain types of medications. A driver may have balance problems. A driver might have hearing problems.  Age could be a factor in determining the driver’s ability to perform the tests. A driver may have a language barrier.

The bottom line is that taking the field sobriety test subjects the defendant to subjective claims of signs of intoxication that will be put in the police report and used against them in court. The police feel  these tests are believed to be able to classify the majority of individuals who fail them as being potentially legally intoxicated, but obviously there can be many other reasons why an individual might fail one or more of these tests.

Breathalyzer, Blood or Urine Tests in Michigan OWI cases

Every state imposes a blood alcohol content limit of 0.08 percent for operating a motor vehicle, while commercial drivers and people under drinking age are subject to lower limits. Also there is a BAC limit for minors are .01% or .02% due to a "zero tolerance" policy with regard to alcohol consumption by minor operating a vehicle.

Super Drunk Driving

The Drunk Driving Laws are continually being changed or modified by the legislature. The changes always result in laws that are stricter. For instance, Michigan now has a Super Drunk Driving Law that applies to individuals that are arrested with BAC or Blood Alcohol Content of .17 or higher. Thus it makes it very important to challenge the result of the chemical tests where possible. The BAC result may come from the police department Data Master machine, a urine test or from a blood draw.

If a driver is charged with Super Drunk Driving the penalties are enhanced for first offenders. Those additional Super Drunk penalties include longer license sanctions, more possible jail time as well as additional counseling. The ultimate charge will determine the extent of your license suspension as well the period of time for which you can drive with restrictions. The license suspension penalty and possible jail are longer for a super drunk driving then a regular OWI. The license sanctions are always enforced by the Secretary of State in Michigan based on the driver’s master driving record.

PBT (Preliminary Breath Test)

The officer may offer you a PBT or preliminary breath test at the scene of the stop prior to the driver’s arrest.  The PBT is the hand held breathalyzer which can only be used to help establish probable cause to arrest. Refusal of the PBT is a civil infraction only and can result in a fine of $150 and it is not admissible in court. However, failure to take a PBT gives the officer probable cause to arrest and subjects a driver to the official test procedure.

Michigan’s implied consent laws for refusal of chemical test

Under Michigan law, if you have been arrested and charged with driving under the influence of alcohol, you have legally consented to take a breath, urine, or blood test to determine if you are intoxicated. If you refuse to have a blood alcohol test that is lawfully requested by the officer, the police will seek a search warrant for a blood draw. The request a search warrant will result in the judge ordering a blood draw. The driver will then be subjected to Michigan’s implied consent laws. Implied consent means that by operating on Michigan roadways you agree to alcohol tests if the police establish lawful reason for the request. The consequence of your violation of implied consent is Driver’s license suspended for one year after refusing to take blood test the first time. The suspension of the driver’s license is done by the Secretary of State.

Hire a skilled criminal defense lawyer for DUI/OWI in Michigan

The bottom line is that navigation a OWI case in Michigan is complicated.

The attorney should be able to give a realistic prediction of the results, including best- and worst-case scenarios after an OWI arrest. The outcome of your DUI case will depend on many factors, not least of which is the strength of the evidence against the driver and the seriousness of the alleged offense.

Attorney Gerald R. Stahl is experienced in OWI representation from each West Michigan Court, whether it is the 58th District Court in Holland, Grand Haven District Court, or Hudsonville District Court, or the Grand Rapids District Courts of 63rd or 61st District Court. Even under some of the most difficult circumstances, an experienced defense lawyer can achieve a reduction of charge or a reduced sentence for the client. The client should always consider the future consequences of not being adequately represented for OWI in Michigan.