FREQUENTLY ASKED QUESTIONS
This article addresses commonly asked questions and their answers regarding Drunk Driving. Its intended use is for information only. This article is not meant as a guide on how an individual should proceed with a Drunk Driving case nor it is a substitute for a consultation with an experienced criminal defense attorney.
GENERALLY SPEAKING, HOW CAN SOMEONE BE CHARGED WITH DRUNK DRIVING?
There are two ways an individual who is arrested for Drunk Driving can be charged. They can be charged with a violation of a City Ordinance or they can be charged with violating state statutes. City Ordinances vary depending on the city and may actually conflict with the Motor Vehicle Code. This article addresses those charged with a violation of state statute.
CAN THE POLICE OR COURTS DEPRIVE SOMEONE OF THEIR CAR IF THEY ARE CONVICTED
OF DRUNK DRIVING?
Yes. With the 1st drunk driving offense the judge may immobilize your vehicle, but upon 2nd or subsequent offenses the judge must immobilize your vehicle, IF the vehicle has not been forfeited. MCL 257.625(8)(e).
In fact, the courts can deprive the car owner of their vehicle under
the Drunk Driving laws even when they themselves were not driving drunk.
A new Michigan Statue outlaws a motor vehicle owner from knowingly allowing
the operation of their vehicle by a driver whose blood alcohol content
is .10 or higher.
A KID IN MY NEIGHBORHOOD GOT CHARGED WITH DRUNK DRIVING BUT THE BREATH TEST PROVED HE WAS NOT DRUNK WHEN HE WAS DRIVING. HOW CAN THEY DO THAT?
The neighbor got trapped by what is called the "zero tolerance" policy. That means zero tolerance for minors who drink any amount of intoxicating liquors and then drive an automobile. Michigan statutes prohibit individuals under the age of 21 from operating a motor vehicle on the highway, or areas generally accessible to the public, including parking lots if they have "any bodily alcohol content". MCL 257.625(6). Bodily alcohol content is defined as .02 or higher up to .07 (.08 being OVI-Operating while Visibly Impaired), or ANY alcohol found within a minor's body due to the drinking of intoxicating liquor, except where it is from a generally recognized religious service.
The following material, was adapted from materials produced by the Drunk
Driving Law Center, and is reproduced here with the permission of attorney
Lawrence Taylor of Los Angeles, California.
WHAT ARE THE POLICE LOOKING FOR IN TRYING TO IDENTIFY DRUNK DRIVERS?
According to studies on the subject, police look for driving that is erratic, slow in response and demonstrates a lack of concentration on the task of driving. Research indicates the following actions are indicators that the driver is driving while drunk.
- Turning with a wide radius;
- traddling the center of lane marker;
- Driving with the tires on the center or lane marker;
- Almost striking an object or vehicle;
- Weaving in and out of your lane;
- Driving at a speed more than 10 mph below the speed limit;
- Stopping without cause in a traffic lane;
- Stopping inappropriately (other than in lane);
- Driving on other than designated highway or road;
- Braking erratically;
- Following another vehicle too closely;
- Signaling inconsistent with driving actions;
- Slow response to traffic signals;
- Driving into opposing or crossing traffic;
- Turning abruptly or illegally;
- Accelerating or decelerating rapidly;
- Driving with the headlights off when dark.
BUT I WAS STOPPED FOR AN EXPIRED LICENSE PLATE, IS THAT ENOUGH?
Yes. The original cause for the officer's stopping you does not need to be related to driving under the influence. But the original cause for the stop must be for a legitimate infraction. Routine detentions for faulty equipment such as a cracked windshield, inoperative taillight, headlights not turned on, or maneuvering and parking violations have been held by the Michigan Courts to constitute sufficient cause to stop the vehicle.
WHAT IS THE POLICE OFFICER LOOKING FOR DURING THE INITIAL TRAFFIC STOP
TO IDENTIFY A DRUNK DRIVER?
What the police officer was taught at the police academy as to what the signals of intoxication are:
- Slurred speech;
- Flushed face;
- Red, watery, glassy and/or bloodshot eyes;
- Odor of alcohol on breath;
- Soiled, rumpled, disorderly clothing;
- Fumbling with wallet trying to get license;
- Failure to comprehend the officer's questions;
- Disorientation as to time and place;
- Swaying/instability on feet;
- Leaning on car for support;
- Combative, argumentative, jovial or other "inappropriate" attitude;
- Staggering when exiting vehicle;
- Stumbling while walking;
- Inability to follow directions.
IF I AM PULLED OVER BY A POLICE OFFICER, WHAT KINDS OF ROADSIDE TESTS MIGHT THE OFFICER ASK ME TO PERFORM?
If the Police Officer believes you have been drinking they may ask you to do Field Sobriety Tests at the scene. Generally, these tests gage your current mental and physical abilities. Police officers usually use three to five of the Field Sobriety Tests during a traffic stop of a suspected drunk driver. Field sobriety tests include:
- walking along a straight line;
- reciting the alphabet;
- counting backwards from 100;
- touching your individual fingers to your thumb;
- touching your nose with your finger, elbow out;
- standing on one foot at a time;
- walking heel to toe;
- leaning forward and backward with your eyes closed.
Note that recently many cities have added videotape on their patrol cars. If your city has, then the Field Sobriety Tests may be caught on video, as well as written in the Police Officer's reports.
CAN I REFUSE TO TAKE FIELD SOBRIETY TESTS?
Unlike the chemical tests, where refusal to submit may have serious consequences,
(a civil infraction and driver's license confiscation), you are not legally
required to take any FSTs. Remember you are not required to provide evidence
against yourself (your 5th Amendment rights). But anything you do or say
MAY be used against you.
In reality the Police Officer may have already made up their minds to arrest you when they ask you perform the Field Sobriety Tests. Performing the tests may simply provide additional evidence against the driver when they "fail" the Field Sobriety Tests.
Depending on the facts, a polite refusal "until I speak with my attorney" may be appropriate in your case. Also remember that if you appear drunk in a videotaped Field Sobriety Test, it will not impress the judge or jury in your case.
WHAT HAPPENS IF A POLICE OFFICER ASKS ME TO TAKE A ROADSIDE BREATH TEST?
MUST I TAKE ONE?
A "roadside breath test," also called a preliminary breath
test or "PBT," indicates the presence and/or concentration of
alcohol based on a breath sample. You will be asked to blow into a PBT.
The purpose in giving this test is to determine if there is probable cause
to arrest you for driving under the influence.
While you have the power to refuse to take the test, your refusal may not stop the officer from arresting you if there is other evidence of alcohol usage (e.g., slurred speech, bloodshot eyes, clumsiness) that would affect your ability to drive.
A refusal has other consequences as well. Michigan is an "Implied Consent" state, meaning by being a licensed driver you consent to having your blood alcohol level concentration analyzed, (it is in the fine print when you fill out your application for a driver's license). If the driver refuses the police officer's request for a roadside PBT, the officer can cite the driver for the civil infraction of refusing the PBT ($100.00 fine).
I WAS NEVER OFFERED A ROADSIDE BREATH TEST. HOW COME?
The police officer is not required to offer you a roadside breath test, also known as the PBT. If you refuse the officer's request that you submit to the PBT, the officer can cite you for the civil infraction which carries a $100.00 fine (but does not trigger the license revocation provisions). Also keep in mind that in order to offer a driver a PBT the officer must be trained and certified in the use and operation of the PBT (most police officers do not have this certification), and there must be an available PBT machine in the officer's car. A lack of training and physical equipment has resulted in few street officers being able to offer the PBT.
AFTER I TOOK THE ROADSIDE BREATH TEST, THE OFFICER TOOK MY LICENSE. HOW
CAN HE DO THAT IF I'M PRESUMED INNOCENT?
As of October 1, 1999 Michigan law mandates immediate confiscation of the driver's license if the breath test result is above the legal limit of .08 if you are over age 21, and .02 if you are a minor. If the officer confiscates the driver's license, they then issue a temporary driving permit. Then you have 14 days in which to request a hearing regarding your driving privileges or your license will be automatically suspended.
THE OFFICER USED A PENLIGHT. IS THIS A FIELD SOBRIETY TEST?
Yes, this is a type of FST. If you have a penlight moved in front of your face and the police officer asks you to follow it with your eyes, this is the "horizontal gaze nystagmus" test. With it the police officer is attempting to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for eye jerking); if the eyes jerk sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go.
DO I HAVE THE RIGHT TO AN ATTORNEY WHEN AN OFFICER STOPS ME AND ASKED
TO TAKE A FIELD SOBRIETY TEST?
No. There is no right to counsel before or during Field Sobriety Tests. There is also no right to counsel during the pre-arrest questioning of a suspected drunk driver nor during FST's that are conducted following a driver's booking at the police station. Most significantly, there is no right to counsel during the breath test.
WHEN DO I HAVE THE RIGHT TO A LAWYER?
Generally there is no right to an attorney until the driver has been formally charged. However, you do have the right to a lawyer if you are arrested AND the police officer wants to interrogate you. The driver is officially under arrest when they are handcuffed at the scene, when the officer leads them back in to the scout car or states something to the effect of "you are under arrest..." The reason you have the right to a lawyer when you are questioned (post-arrest) is your 5th Amendment privilege against self incrimination.
WHAT KIND OF EVIDENCE DOES AN OFFICER NEED TO ARREST A MOTORIST SUSPECTED
OF "DRUNK DRIVING"?
Generally speaking, there are three kinds of evidence that a police officer
will consider and gather in their investigation to determine if the officer
has "probable cause" to arrest the driver:
General observations of behavior.
- Specific observations of balance and coordination, the "Field Sobriety Tests".
- Scientific chemical test results of the driver's breath, blood and/or urine.
- A police officer may arrest a driver if the cumulative effect of
the evidence gives the Police Officer probable cause to believe the
driver was driving under the influence of alcohol or drugs. Probable
cause to believe the driver committed the offense, (which would allow
an arrest), is a much lower standard than the standard of proof at a
THE OFFICER NEVER GAVE ME A MIRANDA WARNING. CAN I GET MY CASE DISMISSED?
No. The police are only required to give you your Miranda warnings if you are under arrest and the officer wants to interrogate you. Your Miranda warnings a.k.a. your Miranda rights are your right to remain silent, that anything you say may be used against you in a court of law (your 5th Amendment rights) and that you have a right to consult an attorney, and if you can not afford one you have a right to have a lawyer appointed for you (your 6th Amendment rights). Sometimes officers do not give the warnings. The only consequence of not informing you of your rights is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. But if you do not receive your rights AND volunteer any statement to the police, those statements are admissible in court against you.
The courts in Michigan have held however that an alleged drunk driver is to be allowed an opportunity to call and talk to a lawyer before they decide whether to submit to a chemical test. If the driver refuses to submit to a chemical test BUT the police refused to give them an opportunity to call a lawyer, their driver's license cannot be suspended under Michigan's "Implied Consent" law.
IF THE POLICE OFFICER ARRESTS ME, WHAT TYPES OF CHEMICAL TESTS CAN BE
GIVEN TO DETERMINE THE LEVEL OF ALCOHOL IN MY BLOOD? DO I HAVE A CHOICE?
HOW ARE THEY DIFFERENT?
In Michigan, there are three ways to determine how much alcohol you have
in your system: breath, blood and urine. The vast majority of chemical
tests done in Michigan are breath tests. You may have the option on which
test you want to take, after you have submitted to the officer's request
for the Datamaster (a breath test at the station).
For a breath test, you will blow into a machine called a BAC Verifier Datamaster (Datamaster) that will determine the blood alcohol content in your breath. The Breathalyser was used in Michigan until 1995, when all law enforcement officers in Michigan had switched over to the Datamaster due to decreased errors, ease of operation and greater speed in testing. The Datamaster is located in the police station/post/precinct, as opposed to the PBT which can be transported in a vehicle. Both the Datamaster and the PBT require the operator to have completed training and to be certified in its use and operation.
You can request a urine test, but be aware that they are the least reliable of all the chemical tests. That is why the police rarely ask a driver for a urine sample. Usually if you request a urine test you will be transported to a local hospital.
The third option, a blood sample, is generally the most accurate. However there are two types of blood testing, whole blood and blood serum. Whole blood is generally drawn at the station when the driver consents to the chemical testing. Whole blood is expressed in numerical terms that are in accord with the Administrative Rules governing blood tests. Blood serum is blood that is drawn at a hospital (usually in cases of an accident or a search warrant). For blood serum the hospital "spins out" parts of the blood to leave just the serum, which is then tested. The problem with testing the serum is that it results in a higher BAC level than had the test been done on whole blood (as required by the Administrative Rules). Blood serum contains approximately 20% more alcohol than whole blood!
WHAT HAPPENS IF I REFUSE BLOOD-ALCOHOL CONCENTRATION TESTING?
Refusing a chemical test (not the PBT) at the request of a police officer results in a 6 month license suspension for the first refusal and a 1 year suspension for the second refusal in 7 years. But refusing to submit does NOT mean the police can not get a sample. The police officer may obtain a search warrant for your blood from a Judge based upon probable cause that the driver is intoxicated. If the search warrant is granted then the police may draw your blood with out your consent; generally this is done at a local hospital.
DO I NEED A LAWYER OR CAN I REPRESENT MYSELF?
You allowed to represent yourself, but it is a horrible idea. Imagine
doctors trying to perform open heart surgery on themselves.
"Drunk driving" is an extremely complex area of the law and Michigan has the toughest penalties in the nation! There are a minefield of complicated constitutional, evidentiary, procedural, sentencing and administrative license issues. Remember, even if you do not have a lawyer to represent you, the Government will ALWAYS have a lawyer representing them. The government lawyer, generally the Prosecuting Attorney can cause you to be incarcerated and forfeit your property; basically they can ruin your life if you do not have the protection of a lawyer.
An experienced attorney, can review the case for defects, obtain expert witnesses for trial, have the court suppress evidence, compel discovery of such items as calibration and maintenance records for the breath machine, have blood samples independently analyzed, have blood samples thrown out due to improper testing, negotiate for a lesser charge or reduced sentence, contest the administrative license suspension, fight the vehicle forfeiture or immobilization, etc.
ARE THERE ANY DEFENSES IN A DRUNK DRIVING CASE?
Yes. There are several potential defenses that can be raised in a drunk driving case. Generally, most of the defenses fall into one of the following categories:
- Lack of probable cause. Illegally obtained evidence can be suppressed if the police officer did not have probable cause to stop, detain, seize or arrest.
- Lack of driving. Intoxication is not sufficient. The Prosecuting Attorney on must also prove that the defendant was driving. This can be difficult if, as in the case of accidents, there are no witnesses who saw anyone driving the vehicle.
- Lack of implied consent warnings. If the police officer fails to advise the driver of the consequences of refusing to take a chemical test or gives the warnings incorrectly, the test results may not be admissible at trial. Also if the police officer failed or faulty advised the driver of the consequences of a "refusal", then the driver's license may not be suspended.
- Refusal of police officer to allow driver a reasonable opportunity to call an attorney. Under these circumstances, the driver's license could not be suspended
- Lack of Miranda warnings. The driver's statements can be suppressed as illegally obtained evidence if the warnings were not given while the driver was under arrest and the police officer was questioning them.
- Testing during the absorptive phase. Chemical tests are unreliable if the driver is still absorbing alcohol. Alcohol absorption is affected by dozens of factors like weight, recent food consumption and drinking history. Drinking alcohol right before driving can lead to inaccurate results when tested (the rising BAC defense.
- Blood alcohol concentration. There are dozens of problems with BAC testing. Use of certain mouth sprays or food can alter the accuracy of breath tests. Blood drawn at a hospital tests blood serum instead of whole blood. Urine tests are so unreliable that they are always suspect. These and may other BAC testing problems can be brought out at trial, either through cross examination of the prosecution witnesses or by having a forensics expert testify on behalf of the driver.
- Independent witnesses. They could testify as to their own opinions and observations, that the driver did not appear to be under the influence. The defense of questioning the officers conclusions, observations, and the field sobriety test "results", based on the police officer's bias of what they consider "failing".
- Proper blood alcohol testing. The prosecuting attorney must prove that the chemical test complied with the law as to the operator's certification, the machine's calibration and maintenance, whether the blood testing facilities were sterile, etc.
- Drivers license Revocation. Was the driver properly given their chemical rights? Was the driver allowed to contact an attorney before deciding to blow or not? These and many other issues can be raised to fight the drivers license revocation.
WHAT IS A "RISING BAC DEFENSE"?
A rising BAC defense refers to the fact that it generally takes between 1 to 3 hours after drinking alcohol for the alcohol to be absorbed by the body. (Alcohol absorption rates will vary with each person and are influenced by numerous factors like body weight, drinking history, recent food consumption, etc..) A delay in the body's alcohol absorption means the driver's BAC level may rise for a duration after they are arrested.
It could be 1 hour or 4 hours between when the driver is arrested and when the BAC level is tested. Depending on the community, the necessity of a search warrant, locating an officer who is certified to test, travel time to the hospital, the general busyness of the police at the time of arrest, etc., these factors will determine how soon the driver is tested. Since it is illegal to have the unlawful blood alcohol concentration at the time of driving, not at the time of testing, this is the rising BAC defense.
For example, if the driver's BAC level is .07% when they are driving, but it takes two hours to test the driver after they are arrested, and then their BAC level is now .10%, because the driver's body had two hours to absorb the alcohol, then a rising BAC defense may be appropriate.
IF I AM CONVICTED OF "DRUNK DRIVING", CAN MY INSURANCE COMPANY
RAISE MY AUTO INSURANCE RATES?
Yes they can, but they will not necessarily do so.
The results may vary company to company, and may depend on such factors as how long you have been insured with the company and your past driving record. If you are dropped, you will have to shop around for a new insurer and chances are your rates will be much higher. Your increase in insurance rates can constitute the single biggest financial cost of being convicted for drunk driving.