DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS

FREE CONSULTATION

We get results other lawyers do not.

Call (734) 453-7806

A Drinking and Driving arrest can turn your life upside down. Our defense firm is here to stand up for you and fight.

Driving Under the Influence is one of the most common criminal offenses that happen to everyday people, except that when it happens to you the only thing you feel is lost and alone – we are here to guide you and we have your back.

HOW OUR LAW FIRM CAN HELP

Drinking and driving (DUI) is a category of criminal offenses that involve driving under the influence of drugs or alcohol in the State of Michigan. The most common drinking and driving offense is Operating While Intoxicated. A list of common DUI offenses is on the right side of this web page.

Is drinking and driving a misdemeanor?

Most drinking and driving offenses are misdemeanors, meaning that the maximum jail time is less than one year; however, some drinking and driving offenses can be charged as felonies in cases where there is an injury or a person has prior drunk driving convictions.

What is the penalty for drunk driving?

Every drinking and driving offense has different penalties depending on the severity of the charge. A common thread among drunk driving offenses is that they all carry potential jail time, your driver license will be restricted, suspended or revoked, points will be added to your master driving record, you will be ordered to pay fines and costs, and may be placed on probation for a period of time. A drinking and driving conviction will be permanently added to your criminal history and driving record.

Entering Canada with a DUI Conviction

If you are convicted for driving under the influence you will have a difficult time crossing the Canadian boarder regardless if it is for work or for pleasure. In order to cross the Canadian boarder within the first five years of a DUI conviction you will have to have a compelling reason, such as attendance at a funeral, and you will need to apply for a temporary residency permit. After five years from the completion of your sentence you can apply for permanent rehabilitation through the Canadian Consulate. After 10 years of your first drinking and driving conviction you will automatically be deemed rehabilitated assuming you have no new convictions. 

What are the elements of Operating While Intoxicated?

Every crime is made up of elements that the prosecuting attorney must prove beyond a reasonable doubt. The elements of operating while intoxicated are that the accused operated a motor vehicle, on a public roadway, while impaired by drugs or alcohol.

What are defenses to Operating While Intoxicated?

The prosecutor has the burden to prove the elements of driving under the influence. If the prosecutor cannot prove every element beyond a reasonable doubt then the accused must be found not guilty. If the prosecutor cannot prove that the accused operated the vehicle, or cannot prove that the accused was in an area generally accessible by the public, or cannot prove impairment or intoxication then they are not guilty.

Did the police have a legal reason to stop your vehicle? The police are patrolling the roads looking for suspected drunk drivers, but the police cannot just pull people over at random. If the police pull you over without observing suspected drunk driving, or because you committed a civil infraction, then your Fourth Amendment was violated and the case must be dismissed.

Did the police have a legal reason to arrest you? Even if you were legally stopped by police the burden is on them to show that there was probable cause to arrest you. If the police do not have evidence they can point to that is indicative of drinking and driving then your Fourth Amendment was violated and the case must be dismissed.

Did the police follow proper protocol for chemical testing? Chemical testing comes in the form of blood, breath, or urine testing. The evidence must be gathered properly, there must be a proper chain of custody, and it must be tested properly by reliable testing equipment.

All of these are questions should be discussed in great length with your lawyer.

When you are facing an offense that can impact your life you need an attorney that knows the ins and outs of DUI defense. Michigan DUI Defense lawyer Aaron J. Boria has the real world experience coupled with the legal knowledge necessary to defend against driving under the influence charges.

Unlike most defense lawyers, Attorney Boria has a winning trial record. The majority of our cases result in a dismissal or a reduction. When your future is at stake make sure to choose the lawyer that knows how to get you the best result possible.

Call:(734) 453-7806

OWI – Operating While Intoxicated

    Operating While Intoxicated (OWI) is probably the most common drinking and driving offense that individuals are charged with. Under Michigan law, MCL 257.625, operating while intoxicated is charged when a person's blood alcohol level is a .08 or above.
    A first offense OWI under MCL 257.625(7)(b)(i) is a 93-day misdemeanor, and will result in the suspension of your driver's license, points added to your master driving record, driver responsibility fees, as well as court fines and costs.
    Second Offense OWI is charged when the arrest for the second offense occurs within seven years of a prior driving under the influence conviction. The potential jail time is increased for OWI second carrying a possible year in jail. OWI second also includes mandatory license revocation, license points, vehicle immobilization or vehicle forfeiture, driver responsibility fees, as well as court fines and costs.
    Operating While Intoxicated can be beat. Police will often make an illegal stop of a vehicle or an arrest when they shouldn’t. Additionally, it isn't uncommon for the police to perform chemical testing improperly. Any of these issues could lead to an OWI dismissal. A person’s medical history can play a factor in defending an OWI. Some juries may be unwilling to convict someone of OWI.

Super Drunk – High BAC .17 or Higher

High BAC Greater than .17, more commonly referred to as “Super Drunk”, is a fairly new drinking and driving offense that became law in 2010. Per MCL 257.625(1)(c) Super Drunk is charged when your blood alcohol level is alleged to be a .17 of greater (grams per 100 milliliters of blood).

Per MCL 257.625(9) The offense carries penalties greater than an OWI that include jail time of up to 6 months for a first offense with the loss of your license for an entire year. You would be eligible for a restricted license after 45 days of a hard suspension, but a Breath Alcohol Ignition Interlock Device (BAIID) or blow and go must be installed in the vehicle.

As of today, breath testing is not calibrated at a .17 level, which can cause doubt in the minds of jurors. Other defenses applicable to the Super Drunk offense are all of those that would apply to the lesser offense of OWI.

Driving on Drugs – Operating With Controlled Substance

Operating with the Presence of a Controlled Substance makes it illegal for a person to operate a motor vehicle with any amount of a scheduled 1 controlled substance in their system. Prosecution must prove that the active drug was in your system at the time of driving.

Another common drug driving offense is Driving While Impaired by a Controlled Substance. 

The prosecution must prove not only was a drug in your system but also that the drug impaired your ability to drive. This offense is usually charged when a person has a prescription like Xanax, Vicodin, or marijuana is in their system but they have a medical marijuana card.

A first offense for driving on drugs carries 6 months in jail, 6 points on your driving record, and the loss of your license. A second offense carries a year in jail with mandatory jail time and a third offense is a felony that carries prison time.

Driving on drugs, like any driving under the influence charge, can be defended. The prosecution must prove that a controlled substance was in your system and they are often trying to do so using complicated measurements with room for error. Other common defenses include a bad stop, a bad arrest, or a bad investigation by police.

Child Endangerment – DUI Children in the Vehicle

If you were arrested for suspicion of driving under the influence with children in your vehicle under the age of 16 then it is likely that you will be charged with Child Endangerment. The prosecution must prove beyond a reasonable doubt that you were operating a motor vehicle while impaired by liquor or a controlled substance and there was a child, under the age of 16, in your car at the time you were driving. First offense Child Endangerment is a misdemeanor with up to a year in jail; plus fines and the loss of your license. Second offense Child Endangerment is a felony.

The same defenses that are available for Operating While Intoxicated, or Operating While Impaired by a Controlled Substance, are available in trial endangerment. A violation of your rights by the police could mean an outright dismissal.

Felony OWI - Felony Drunk Driving

Operating While Intoxicated Third Offense is a felony.  In 2006, Michigan's Drunk Driving law was amended to make any third offense OWI in a person's lifetime a felony regardless how much time has passed since prior offenses.

Penalties for OWI third are a fine of $500-$5000 plus costs, 1 to 5 years in prison, or a minimum 30 days jail with 60 to 180 days community service, vehicle immobilization, driver license points and driver responsibility fees. A third offense OWI will also result in the driver license being suspended or revoked.

Felony OWI is more common than you would think. Drinking and driving is probably the only criminal offense that you can make an effort not to break and still be charged with, after all, you are legally allowed to drink and drive, its illegal to be over the limit while driving. Graduation parties, work parties, anniversaries, celebrations, and having a drink or two with a friend can result in an operating while intoxicated charge. Many people believe that alcohol metabolizes in the body one drink per one hour. However, there are so many more factors and the rate is truly different for every person.

Like all driving under the influence offenses OWI third can be fought. Any defense that would apply to misdemeanor driving under the influence would apply to felony driving under the influence. As a DUI defense lawyer, we look to see if we can challenge the stop, challenge the arrest, challenge the chemical testing, and challenge the prosecutor's ability to meet the elements of the charge.

Zero Tolerance - Minor BAC

    Michigan law, MCL 257.625(6), makes it illegal for a person less than 21 years of age, to operate a motor vehicle, while having the presence of a bodily alcohol.
    The penalty for a minor operating with any BAC is up to 360 hours of community service, $250 fine, cost of prosecution, and rehabilitative programs, MCL 257.625(b)(5). A second offense minor with any BAC is punishable by up to 93 days in jail, 60 days community service and a fine of $500 plus costs.
    Along with the common defenses to drinking and driving, minor with a BAC has an additional defense under MCL 257.625(23) that allows defendant to provide evidence that the alcohol was consumed as part of a recognized religious ceremony.
    There is a constitutional right to a jury trial for minor with BAC and that right was upheld in People v Antkoviak, 242 Mich App 424 (2000).

Field Sobriety Test - HGN - One LEG STAND - Walk & Turn

    Field sobriety tests are administered to determine whether or not police have enough probable cause to arrest you for driving under the influence of drugs or alcohol. The National Highway Traffic Safety Administration or NHTSA has established standardized field sobriety tests; they include the One Leg Stand, Walk and Turn, and the Horizontal Gaze Nystagmus.
    Non-standardized tests might include counting backwards, saying portions of the alphabet, or a finger dexterity test. NHTSA does not necessarily condone these tests, but does state that they are not as effective as the standardized tests.
    NHTSA approved Field sobriety tests themselves can be difficult to preform sober, especially if you have had surgery on anything that could effect walking or balance, if you are performing the tests in high heels or dress shoes, or if the ground you are performing them on is slanted, icy, or covered in gravel.
    The standardized field sobriety tests are listed below and can be found in the U.S. Department of Transportation's National Highway Transportation Safety Administration manual titled, DWI Detection and Standardized Field Sobriety Testing.
    Horizontal Gaze Nystagmus
    Horizontal Gaze Nystagmus or HGN is the eye test a police officer may ask you to preform during the field sobriety testing to determine if you are driving under the influence of alcohol.
    The HGN test was created by the National Highway Safety Traffic Administration and is designed to detect clues of alcohol consumption. It cannot determine the amount that was consumed although some believe that a blood alcohol estimate can be made.
    Did I Pass the Horizontal Gaze Nystagmus test?
    Many clients believe that they have passed the HGN eye test when in fact they have not. The officer is not testing your ability to follow his pen and keep your head straight.
    Nystagmus is an involuntary jerking of the eye. There are many causes of Nystagmus; alcohol consumption is one of them, which is why it is used to detect drunk driving.
    If you are exhibiting signs of alcohol consumption your eyes will not be able to smoothly purse the stimulus and will involuntarily jerk. If your exhibit the clues nystagmus you did not pass the HGN test.
    The officer is looking for six “clues” of intoxication, three in each eye.
    Lack of Smooth Pursuit - The officer moves the object from the center of the subject's face towards their ear. The eye should smoothly follow the object, but if the eye exhibits nystagmus, the officer notes the clue. The officer then checks the other eye. This test is repeated.
    Distinct Nystagmus at Maximum Deviation - Starting from the center of the suspect's face, the officer moves the object toward the left, bringing the eye as far over as possible, and holds the object there for four seconds. The officer notes the clue if there is a distinct and sustained nystagmus at this point. The officer holds the object at maximum deviation for at least four seconds to ensure that quick movement of the object did not possibly cause the nystagmus. The officer then checks the right eye. This test is repeated.
    Angle of Onset of Nystagmus Prior to Forty-Five Degrees - The officer moves the object at a speed that would take about four seconds for the object to reach the edge of the suspect's left shoulder. The officer notes this clue if nystagmus begins prior to maximum deviation Forty-five degrees from center is at the point where the object is in front of the tip of the subject's shoulder. According to NHTSA, if the officer observes this clue, there is a greater likelihood that the driver’s blood alcohol content is a .08 or more.
    If the HGN wasn't preformed properly the jury should disregard it.
    Walk and Turn
    The walk and turn is broken down into two stages: the instructional stage, and the walking stage.
    In the instructional stage the subject has to stand with their feet heel-to-toe, with their hands at their side, while the officer explains the instructions.
    In the walking stage the subject walks nine heel-to-toe steps, turns on their front foot while using the read foot to take several small steps.
    The test is broken down into eight clues that indicated impairment:
    Cant balance during instructions
  • Starts too soon
  • Stops while walking
  • Doesn't touch heel-to-toe
  • Steps off the line (could be imaginary)
  • Uses arms to balance
  • Loses balance on the turn or turns differently than told
  • Takes the wrong number of steps
    NHTSA considers the person to have failed the Walk and Turn if they step off the line three or more times, they are in danger of falling, or they cannot preform the test. In a police report it is common for an officer to comment on how a person preformed on the test but never conclude whether or not they passed or failed the test.
    One-Leg Stand
    The walk and turn is broken down into two stages: the instructional stage, and the balance and counting stage.
    In the instructional stage the subject stands with their feet together, with their hands at their sides, while the officer explains the instructions.
    In the balance and counting stage the subject raises one leg, and holds it roughly six inches off the ground while counting out loud for 30 seconds.
    The test is broken down into four clues that indicate impairment:
  • Sways while balancing
  • Uses arms to balance
  • Hops
  • Puts foot down
    NHTSA considers the person to have failed the One Leg Stand if they put their foot down three or more times, or they cannot preform the test. The NHTSA manual doesn’t mention accurate counting but officers will mark someone down if they cannot count correctly.
    Attorney Boria has been certified through the same NHTSA training as police. Attorney Boria is also trained in chemical testing and spends countless hours each year in continuing education and training for criminal defense.
 

“I was arrested for OWI (first offense) and was referred to Aaron by a friend. I was extremely nervous after reading the penalties related to the charge. Aaron got the charge reduced to an Operating While Visually impaired, which saved me a ton of money and allowed me to keep my license on a restricted basis rather than being suspended, which was huge for me because I commute to school 4 days a week. I knew I had good representation at sentencing, but expected to get a severe punishment because of priors I had when I was a teenager. When Aaron came out and told me what the Judge was going to give me, I was absolutely surprised and satisfied with the great results that he negotiated. He explained everything very well, and made the whole process understandable and easy as could be in that situation. I would absolutely recommend Aaron to family and friends for their legal needs.” – Nick in Novi, Michigan