Frequently Asked DUI Questions

Please note that the following DUI frequently asked questions and answers are specific to DUI / OWI cases arising in Michigan. If you have questions regarding a drunk driving case in another state, you are strongly advised to consult with an experienced and well qualified DUI/OWI defense lawyer who practices in that state.

DUI FREQUENTLY ASKED QUESTIONS 

Must an officer see bad driving before he can stop someone for suspected OWI?

The simple answer is no. Michigan law permits a police officer to make a traffic stop for any violation of the Michigan Motor Vehicle Code or a corresponding local ordinance. For example, white light emanating from a cracked tail light is a civil infraction and may provide a legal basis for a stop in the absence of any bad driving. The same would be true in the case of an expired plate or an equipment violation. In the absence of such a violation, the law requires that an officer have “a reasonable articulable suspicion” to believe that you have engaged in or were about to engage in criminal activity. Challenging the basis for the initial stop is the first line of defense in any Michigan drunk driving (DUI / OWI) case.

Do I have to answer the officer’s questions about my drinking if I’m pulled over?
No. If stopped you should remain polite and cooperative. After giving the officer your license, registration and proof of insurance you should simply ask “Officer, am I free to leave?” If he says no, then you say “I would rather consult with an attorney before I answer any further questions.” The main thing to keep in mind is that the officer is seeking any information that would support an arrest decision. The less you say, the better off you are.
Do I have to take field sobriety tests if asked by the police?

No. Just as you can decline to answer any of the officer’s questions, you can decline to submit to any field coordination or sobriety tests.

Can I still be arrested if I pass all the field sobriety tests?
Yes. Performance of field sobriety tests is only one factor that a police officer may consider in making his arrest decision. For example, Michigan law permits an officer to arrest in whole or in part based upon the preliminary breath test (PBT) results. That means that even if you pass the field tests with flying colors, you can be arrested for suspected drunk driving if you take a PBT and the results are .08 or higher.
If I’m arrested for drunk driving and the police officer asks me to take the “breath test” or some other test to determine my blood alcohol level, what happens if I refuse to take the test?

Michigan has an Implied Consent law that requires drivers to take a chemical test when asked by a police officer following a DUI-OWI arrest. If you refuse to take the test, which could be a breath, blood or urine test, your operator’s license will be suspended for one year for the first refusal and two years for a second or subsequent refusal. If you do refuse the test, you have 14 days from the date of your arrest to file an appeal and request a hearing. If you fail to file a request for a hearing within those 14 days, your driver’s license will be automatically suspended.

Do I have a right to consult with an attorney before deciding whether to take a chemical test?

Actually, it depends. There is case law in Michigan that stands for the proposition that a person has the right to seek the opinion of an attorney before deciding whether to submit to a chemical test following an arrest for suspected drunk or drugged driving. However, as noted above, upon a refusal the driver will be given a Notice of Refusal that requires an appeal  to the Administrative Hearings Section of the Michigan Secretary of State within 14 days. There is a divergence of opinion among the hearing officers at the AHS on this issue. Some routinely rule that a refusal is reasonable and not subject to suspension where the police deny a request to consult with an attorney before deciding on the test. Others, unfortunately, find that while it is good practice for the police to permit an attorney consultation in advance of taking the test, it is not required.

Do I have the right to choose which chemical test to take?

No. Michigan law permits the officer to act as “gatekeeper” regarding the method of testing. However, a person who is diabetic or suffers from hemophilia can not be forced to submit to a blood draw.

The officer never read me my rights. Now what?
It depends on what rights you’re talking about. Any OWI arrest may involve several different “advice of rights” scenarios. For example, prior to administering a PBT, an officer is required to advise that a person suspected of drunk driving is required under Michigan law to submit to a preliminary breath test at the request of a police officer; that failure to take the test will result in  a civil infraction and a fine. The failure to properly advise concerning the PBT rights could provide a basis to challenge the arrest.
Most lay people are referring to Miranda warnings when they say “ I was never read my rights.” But Miranda warnings are usually not implicated in OWI cases. Miranda warnings only apply to custodial interrogations. That means, in the absence of Miranda warnings, any incriminating statements made by a suspect while in custody in response to police questioning may be subject to suppression.
The other possible “advice of rights” scenario relates to implied consent testing. The law requires that before requesting a chemical test a police office must advise the suspect of his or her chemical test rights which includes the right to have an alternative test of the suspect’s choosing following the initial test.
Why didn’t I receive a ticket charging me with drunk driving?

Operating While Intoxicated is classified as a 93 day misdemeanor. Under Michigan law, the offense can be charged through the issuance of a traffic citation (ticket) or misdemeanor warrant. As a practical matter, virtually all arrests involving a breath test are charged through a ticket while blood draw cases are charged by warrant. Whether or not you were issued a ticket is not dispositive.

After my arrest I was issued a temporary driving permit. What happened to my license?

Michigan law requires that a police officer confiscate and destroy the actual operator’s license of a Michigan driver arrested for drunk or drugged driving. That requirement does not apply to “out-of-state” drivers licensed in another state.

I’ve just been arrested on my first DUI-OWI charge. What happens now?

Following your arrest, a date for your arraignment will be set, usually about a week to 10 days after your arrest. It is advisable to engage an attorney with experience defending against alcohol- and drug-related charges soon after your arrest to allow review of your case before the arraignment. You may read more about the DUI / OWI Court Process on this website.

Do I have the right to represent myself?

Any person charged with a crime has three options: 1) appear “in pro per” and represent himself or herself; 2) request a court-appointed attorney or 3) hire a private attorney. 

How should I choose a lawyer?

Schedule an initial consultation. Ask about the lawyer’s practice: how much of it is devoted to OWI defense? How many jury trials has the lawyer conducted? What kind of advanced training and continuing legal education has the lawyer undertaken. What is his Martindale Hubbell rating? Has the attorney ever been subject to a state bar disciplinary proceeding? What is the amount of the fee and what does it include? These are all good questions.

Will I go to jail if I am convicted on a first offense drunk driving?

It all depends. The court has the authority to sentence you up to 93 days in jail if you’re convicted on a first offense. Historically, most first-time offenders were placed on probation with no jail time; however, some judges now routinely impose jail time on a first offense. It really depends on the judge and the circumstances of the individual case.

Is it possible to avoid the one-year license revocation for a second drunk driving conviction?

No. Following a second conviction for drunk driving, the defendant must serve a one-year revocation period. The courts have no authority to modify the period of revocation. An exception to the one year mandatory revocation is where the driver is enrolled in an approved Sobriety Court program. Anyone so enrolled is eligible for a restricted license after 45 days.

I was arrested for DUI-OWI after being stopped on the basis of a 911 phone call. Is that legal?

Possibly. Each case involving a stop and arrest based upon a 911 phone call presents many possible defenses. For example, if the arresting officer did not personally observe any erratic driving and the 911 caller refused to give his or her name, there may be a basis to challenge the legality of the stop.

Is it legal for the police to force me to take a blood test if I refuse to consent to any chemical tests?

Yes, if the proper procedures are followed. Under Michigan law, a police officer may obtain a blood test based on a valid search warrant. However, in the appropriate case, your defense attorney may challenge the validity of the warrant. A successful challenge could result in the dismissal of the charges or, at the very least, result in a more favorable outcome to the case.

What are the driver responsibility fees in DUI-OWI cases?

A person convicted of OWI must pay an additional fee to the state of $1,000 each year for 2 consecutive years. A conviction for operating while visibly impaired (OWVI) requires payment to the state of $500 each year for two consecutive years. 

Are the results of the Preliminary Breath Test admissible in court?

Yes, under certain conditions. Michigan law permits a police officer to require that a person submit to a Preliminary Breath Test (PBT) if the officer has reasonable cause to believe the driver’s ability to operate the vehicle was affected by drinking alcohol. However, the prosecution cannot admit the PBT results into evidence at trial to prove intoxication. On the other hand, the defense attorney may use the PBT to rebut testimony that the accused driver’s BAC was higher at the time of the arrest than at the time the PBT was administered. Also, the results may be used by the prosecution to rebut defense testimony from a prosecution witness that the accused driver’s BAC was lower at the time of the arrest than when the test was administered.

How long does a DUI-OWI conviction stay on my Michigan record?

In Michigan, a DUI / OWI conviction stays on your record for life. A DUI-OWI in Michigan is a misdemeanor unless it is a third offense, in which case it is a felony.

Can I have my drunk driving conviction set aside or expunged?

No. Michigan statutes prevent a person from having a conviction for a traffic offense, including any drunk driving conviction, set aside or expunged.

If I had a drunk driving (DUI-DWI-OWI-UBAL-OUID) conviction in another state, will it show up in Michigan?

Yes. It’s not uncommon for drunk driving convictions from other states to show up in a computer search when the prosecutor is preparing a case. The Secretary of State also may gain access to these records. It’s the role of an experienced DUI attorney to thoroughly prepare when establishing a defense strategy. Be sure to inform your lawyer of all past charges, but be assured that this information will not be shared unless ethically or strategically necessary. It is important for your defense attorney to be prepared to address the issue of out-of-state convictions should the prosecutor present it in court.

How will a DUI-OWI arrest and conviction affect me if I’m licensed from out-of-state?

If you are a nonresident and arrested while driving in Michigan, you will be required to appear at your scheduled arraignment, which will be in Michigan. It is advised that you be accompanied and represented by an attorney who is licensed to practice in the state of Michigan. If you fail to appear, a bench warrant will be issued for your arrest. If you are convicted of drunk driving in the state of Michigan, Michigan cannot suspend your out-of-state license. Only your home state can order a license suspension. However, Michigan can suspend your privilege to drive in the state of Michigan.

How much is it going to cost me to hire an attorney to defend me against my charges?

Fees vary widely based upon the experience and qualifications of the attorney. Some attorneys who handle a variety of matters such as divorces, real estate, etc. may charge as little as $1,500.00 for a first offense. Experienced attorneys who specialize in drunk and drugged driving cases and are highly credentialed may charge as much as $25,000.00.

Does my employer have to find out about this arrest?

No. You are under no legal obligation to inform your employer about your arrest or conviction. The court will not notify your employer of your conviction. However, local newspapers have been known to publish court records, which have included lists of names and convictions. Your employer may find out through a published list or anecdotally, but there is no requirement in Michigan that you report your arrest or conviction to a current or future employer.

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Summary
DUI Frequently Asked Questions
Article Name
DUI Frequently Asked Questions
Description
A list of the most popular DUI Frequently Asked Questions and their answers. Answers provided by expert drunk driving attorney Edward Earl Duke II.
Author
Duke Law Group