Out of State Driver License Issues

A common issue that comes up with our clients who live out of state is what will happen to their driver license in their own state.  Michigan participates both nationally and internationally in sharing license information.  Because of this, if you get a drunk driving conviction in Michigan, there is a good possibility that if your home state funds out about it, they will sanction your driver license.  This is true not just in the United States, as we have seen Canada sanction for a Michigan OWI conviction and we have also seen Michigan punish for a Canadian DUI. 

A major factor to consider is how your home state deals with operating while intoxicated convictions.  Each state has a different set of licensing sanctions that must be considered when dealing with a Michgan drinking and driving case.

Sobriety Court

Many of the District Courts in Oakland County have a sobriety court.  Sobriety court is a program originally created by former Novi Judge Brian Mackenzie to address recidivism of repeat alcohol offenders.  It consists of intensive probation conditions, including daily alcohol testing and AA, coupled with weekly appearances at the court and monthly group meetings with the Judge.  Prior to being accepted into sobriety court, the defendant must sign a contract agreeing to set sanctions for failing to comply with their sobriety court conditions.  

There are numerous benefits to sobriety court participants.  The first is that jail time is generally avoided.  The second is that the participant becomes eligible for a special restricted driver license after 45 days of being in the program.  This is a game-changer for anybody facing a second offense drunk driving license revocation.  

The most important benefit of sobriety court is that it helps people with their alcohol addictions and changes their lives for the better.  We have witnessed firsthand many of our clients completely change their lives after participating in sobriety court.  But the caveat to requesting sobriety court is that the defendant must actually want to do it because if they are just doing it to get a driver license, the amount of conditions and expectations the court puts on them during the program spells disaster for anybody not taking it seriously.  Courts such as the 51st District Court in Waterford, the 52-3 District Court in Rochester, and the 52-1 District Court in Novi all have well defined and successful sobriety courts.

Drunk Driving Probation Overview

The various district courts of Oakland County generally will impose a probationary sentence regardless of any jail time given.  The most common sentence for a first time OWI offender is a year of probation.  During this probationary period, the court will generally order different conditions, including no leaving Michigan, taking random alcohol tests, counseling, AA, and special programs.  Community service is also highly likely to be a part of any sentence.

For second offense operating while intoxicated sentences, most Oakland County courts will order 18 months to two years of probation and many times the defendant receives a short jail sentence. Inpatient rehab and intensive outpatient counseling is also something that can be expected. 

Probation in Oakland County is very difficult compared to other counties in Michigan.  Many times, an Oakland County probationary sentence on a first offense drunk driving will eclipse what a Genessee County defendant would receive in a felony case.  Because of this, understanding the probationary conditions and how to successfully complete them is paramount to not spending the end of your sentence in the Oakland County jail.

Jail Time

The biggest fear of any person going through a drunk driving case in Oakland County is the possibility of jail time.  Some of the tougher district courts, such as the 48th District Court and 52-3 District Court carry possible jail time on first offense cases.  Some judges, such as 48th District Court Judge Kim Small order jail in nearly all drunk driving cases.  Because of this, people call our office every day petrified about what may happen to them.  

The Oakland County Jail located in Pontiac off of Telegraph Road in the Oakland County complex, is where people serve jail time for all misdemeanor drinking and driving cases in Oakland County.  The jail itself is broken down into different sections, including maximum security, the pods, receiving, and the east annex.  Most drinking and driving jail sentences are served either in the pods or in the east annex.  The pods consist of  multitude of jail cells which are kept open all day and the inmates are free to mingle around the giant room where the cells are located.  As to the east annex, this used to be the work release facility and consists of a number of large rooms with bunk bed cots.

Unlike what our perception of jail is in the movies, the parts of the Oakland County jail where drunk driving jail sentences are served is generally safe as most of the people are there because of the tough drunk driving judges of Oakland County.  During one's visit to the Oakland County Jail, their family can put money on their commissary account to purchase toiletries and more edible food.  Additionally, inmates are allowed to make calls and visits can be set up.

In the event that somebody receives a drunk driving sentence of 90 or more days, they can become a trustee, which offers additional benefits of extra days off and the privilege of living in the trustee dorm.  As to good time, the Oakland County credits extra days off for good behavior.

The Length of the Blow Defense

An often overlooked, but great nonetheless, defense to a drinking and driving charge is that the Datamaster DMT has accuracy issues when it comes to how much breath somebody blows into the machine.  Published academic studies have scientifically shown that the longer the suspect blows on the Datamaster machine, the higher the blood alcohol score is going to register.  According to the article by Dr. Dennis Simpson, this increase has been shown to be in upwards of 25%.

Even though this is a known issue with the Datamaster alcohol breath test, the prosecutor is not required to present any expert testimony to the jury regarding this, and instead are allowed to simply make it seem like the breath test is infallible.  Of course the reality is that it is not and this issue must be hammered to the jury.

The Fever Defense

In drinking and driving cases that take place in Oakland County, it is believed that many people who are innocent plead guilty because of really bad advice from their lawyers. Generally, most lawyers will look at a Datamaster DMT breath test result over the legal limit and indicate to their client that the operating while intoxicated case is unwinnable because the result of the test is higher than a .08.  Of course this is not true at all as drunk driving trial attorney Jim Amberg has received dozens of not guilty verdicts when the breath test score was at a .08 or higher. 

One great argument to make is that the officer never inquired as to whether the defendant was sick at the time of the taking of the breath test.  Scientific studies have shown that having a fever can throw off the results of the breath test by up to 23%.  This means that somebody who blows a .10 could actually have been below the legal alcohol limit in Michigan and is innocent of drunk driving. 

Of course, unless your lawyer actually has experience with conducting drinking and driving trials in Michigan, chances are nobody on your defense team even thought of this as a possibility. This is why it is so important that your attorney actually understands the science behind the breath testing.

Drunk Driving Trial Cross Examining the Officer on the Datamaster DMT Breath Test

You can always tell the experience level of a criminal defense attorney by how well they cross examine the operator of the Datamaster DMT breath test machine.  It is unbelievable how many self professed drunk driving lawyers simply allow the breath test operator to testify unopposed, or simply stipulate to the results of the machine.  This of course is tantamount to ineffective assistance of counsel and it is not the way to win an operating while intoxicated trial in Oakland County.

Here is an excerpt of a cross examination of the Datamaster operating in recent operating while intoxicated victory that drinking and driving trial lawyer Jim Amberg conducted.  Although the video does not show Jim as he crosses the officer, you can hear him repeatedly hammer the officer on the error rate of the Datamaster.  This particular officer did not want to admit that the machine had any error rate, yet he had to admit that when there is a fatal accident, the officer doesn't take the suspect in for a breath test, the suspect is taken in for a blood draw, the most accurate of the alcohol tests.

The craziest part about this is that most criminal lawyers would have stipulated to the officer's testimony.  By challenging the officer, Jim secured an aquittal on a second offense operating while intoxicated in a case that involved somebody falling off of a motorcycle on M-59 in Waterford. 

Drunk Driving Trial Opening Statement Video

An extremely important part of any operating while intoxicated jury trial is the opening statement.  An opening statement is given either directly after the prosecutor does their opening, or reserved until the prosecutor rests.  The purpose of an opening statement is to let the jury know what the defendant believes the evidence is going to show.  Although every criminal case is different and there are many different strategies available for openings, we have found that in drunk driving cases, setting the foundation for our trial arguments in a way that anybody would understand is key to successfully winning.  OWI trial lawyer Jim Amberg will generally narrow his opening to a concise discussion of the one or two issues that he believes will be the most important to the jury.

Every once in awhile we can secure a video of the court proceedings during our drinking and driving trials in Oakland County.  As seen in this video, Jim lays out his opening statement in a complicated operating while intoxicated 3rd offense felony case.  

Opening statements are the best time for the defense attorney to let the jury know all of the good and bad facts that they may hear, and begin reinforcing the arguments that the defendant will have throughout their case.

Datamaster DMT Non-Radio Interference

Because every officer in Oakland County uses the Datamaster DMT in their drunk driving investigations, understanding the various issues that routinely come up with it is vital to a successful cross examination of the officer.  One such issue is when the machine indicates that it believes that there is "interference" in the breath test sample.  What this means is that the Datamaster DMT machine believes that the sample breath blown into the machine contains a substance other than alcohol.

There are all sorts of things that could interfere with the test.  Saliva, stomach contents, and many other things could find their way into the breath test machine.  When we see interference printed on the ticket, we believe it is a major red flag to the accuracy of the test.  The remedy we generally advocate to the jury is that the officer should have obtained a blood draw because there was something wrong with the machine.

Datamaster DMT Invalid Sample

As has been discussed throughout our help center, the Datamaster DMT breath test machine is capable of diagnosing issues as the happen during a breath test.  One thing that frequently happens is when the Datamaster DMT results page prints out "invalid sample."  According to the Datamaster DMT manual, the invalid sample warning happens when  the machine recognizes a negative-going slope or alcohol concentration during the delivery of the breath sample.  What this means in layman terms is that the breath sample passing through the machine is registering an abnormal result.  What this generally means is that there could be issues with mouth alcohol.  If this statement continues to register, the officer should test the suspect on a different Datamaster DMT machine.

Operating While Visibly Impaired

In Oakland County, operating while visibly impaired is a charge that is often the result of plea negotiations with the prosecutor in a operating while intoxicated case.  The operating while visibly impaired is supposed to act as a lesser offense than an operating while intoxicated, and in some respects it is.  The major difference between the two is that in an impaired driving, the defendant's Michigan driver license is only restricted for three months and there is no hard suspension.  In an operating while intoxicated, the defendant receives a one month hard suspension, followed by five months of a restricted license.  

Although there are other differences between the two convictions, both carry with them the possibility of up to 93 days in jail and both show up as alcohol related convictions on the defendant's criminal history.  Another difference worth considering is that the driver responsibility fee is $1,000.00 a year for two years for an operating while intoxicated conviction, while operating while visibly impaired carries with it a fine of $500.00 a year for two years.

Because the differences in possible criminal liability between an impaired and regular drunk driving are so similar, many times we suggest that the client seriously consider taking their drunk driving case to trial.  The old adage of "what do you have to lose" is very telling here, as most Oakland County judges will not punish somebody for going to trial.

Bond Conditions

Oakland County courts are known nationwide as the toughest drunk driving courts in the country.  The unfortunate defendant that finds themselves with an operating while intoxicated charge in one of these tough courts finds out pretty quick that the punishment starts long before any sentencing happens.  This punishment is given in the form of bond conditions.  In order to be let out of jail while the drunk driving case proceeds, judges in Oakland County will require everything from mandatory AA to daily testing.  Sometimes judges will require using an alcohol tether, while others insist on an interlock device placed in the defendant's vehicle.  The entire concept of innocent unless proven guilty is rarely followed in these courts and instead punishment before the punishment is given. 

If bond conditions are violated, then there is a possibility of being thrown in jail before the case is even adjudicated.  There is a reason why the Oakland County Jail is bursting at its seams with people, it's because the tough judges of Oakland County throw tons of people in jail for bond violations on bond conditions that are basically designed for people to fail. 

Alphabet and Count Backwards Tests

In addition to the standardized field sobriety tests, police officers routinely conduct what are referred to as "non-standardized tests."  Although we have seen many different unique tests, the most common is the alphabet and count backwards tests.   

Unlike field sobriety tests which are based in science, the alphabet and count backwards tests are tests that have been developed independently by police officers, not scientists.  Because there are no standard rules for these tests, the officers' interpretation of whether you passed or failed is always skewed in favor of the police.

The key thing that any decent owi trial lawyer should know is how to attack these tests.  The best way to do this is to go after the cop about the test itself and how there is no set of rules behind its administration.  We have won many drunk driving jury trials doing just that. 

Illegal Arrest Motion

Although the appellate courts in Michigan have significantly reduced our rights as Michigan citizens, you still have a right to not be arrested without probable cause.  What probable cause is can be thought of as a situation where a crime occurred and that you probably did it.  In the context of a drinking and driving case, in Oakland County, the officer must have probable cause that you were operating a vehicle while intoxicated or impaired.   

The officer's probable cause to arrest can be challenged in many cases.  For example, if somebody passes all of their sobriety tests, but fails a preliminary breath test that is ultimately found to be inadmissible, then there is a great argument that the officer didn't have the probable cause to arrest the suspect.

 In order to make these arguments, many times other motions, such as put or field sobriety test motions must be filed and argued at the same time.

Datamaster DMT Radio Interference

Although Oakland County officers will testify that the Datamaster DMT is an infallible device, the simple fact is that it has issues just like any other scientific machine.  One issue that comes up is with radio frequencies affecting the results of the breath test.  This is a common occurrence because most officers wear their radios on their belts while administering the alcohol great test.

The Datamaster can sometimes recognize this effect taking place, and it will in response print out on the ticket the term "radio interference". Radio interference refers to the detection of excessive radio frequency energy.  This is generally caused by transmissions from handheld radios or vehicle microphones being used near the Datamaster DMT.  

We have seen this effect in action and have talked off the record with officers who feel that the new Datamaster machines are much more sensitive to radio frequencies and have resulted in issues with the breath test.

 

Strange Datamaster DMT Results

One great argument in Oakland County operating while intoxicated cases is when the Datamaster DMT result has something strange printed out on the ticket.  For example, we have seen the term "interference detected" on multiple tests since the new machine came out.  In fact, drunk driving trial lawyer Jim Amberg recently obtained a not guilty in a .16 blood alcohol case because the officer didn't follow the rules when this result prints out on the ticket.

There are many different issues that can come up with the Datamaster DMT, such as the term "invalid sample," "ambient fail," and "radio interference."  These error messages should signal to the officer administering the test that something is wrong with the machine.  Yet it is incredible how often officers simply continue or are satisfied with the these error plagued tests.

Although officers seem to be ok when the check engine light of the Datamaster DMT comes on, we are not and more importantly, juries are not.  Knowing what to look for and what each of these error messages mean is an important part of successfully winning a drunk driving trial. 

Auburn Hills Police Department

As one of the larger police departments in Oakland County, the Auburn Hills Police Department handles many drinking and driving cases.  The size of the department leads to a great multitude of different officers handling operating while intoxicated cases.  That being said, we find that Auburn Hills cops are well versed in Michigan drunk driving law.   

The law firm that handles misdemeanor prosecutions for Auburn Hills can be tough but fair in the right circumstances and has been known to work with their officers to resolve cases.  On the other hand, we have had success at trial against the Auburn Hills Police and have no problem taking their cases to trial. 

The major problem with the Auburn Hills Police Department is not themselves, but the court which handles their cases.  The 52-3 District Court in Rochester Hills handles all Auburn Hills drunk driving cases, and that particular court's judges can be very tough on drinking and driving cases. 

Sobriety Court License

A promising development in Michigan drinking and driving law is the passing of a recent statute that allows for people in a sobriety court program to be eligible for a driver license, even if they have been revoked.  Many of the district courts in Oakland County have a sobriety court.  What sobriety court is is an intensified probation that requires a large amount of participation between the probationer and the court.  As part of a sobriety court sentence,  the participant becomes eligible for a special driver license after 45 days of being in the program, so long as the court approves.  This license is not without conditions, as a mandatory interlock device is installed in the participant's vehicle prior to driving.  

The real benefit to the sobriety court driver license is for people who have pled or have been found guilty of second offense operating while intoxicated.  Normally, this results in a revocation of license for a year minimum period.  Participation in sobriety court allows that person to continue to drive, even though they are technically revoked.

There are issues that have been coming up with sobriety court licenses, and they revolve around what happens when sobriety court is completed.  Although it would make sense that the successful participant receive their license back, the reality is that they still have to go through the Driver Assessment and Appeal Division in order to get their license back.  And just because they have completed sobriety court, that is no guarantee that the DAAD will give them a license.  The grey area in this type of situation is whether the successful participant loses their sobriety court license upon completion of the program.  Because of the unknown, we recommend to our clients that they begin preparing for the DAAD hearing from day one of probation and file for a license while they are still in the sobriety court program.

Obtaining the Police Report

In Oakland County, obtaining a police report in a drunk driving can sometimes be a difficult process.  The first issue many people find in dealing with drinking and driving misdemeanor cases is that the prosecutor is under no obligation to provide discovery, i.e. Police reports and videos.  Because of this, we as criminal defense attorneys have to take other avenues in order to get the report and the videos. 

The main method in misdemeanor cases that we do to get discovery is to use the Michigan Freedom of Information Act, better known as the FOIA act, to obtain the report and anything else floating around that could be important to the case.  We take our FOIAs seriously, as the leading FOIA case in Michigan is Amberg vs City of Dearborn, in which Amberg & Amberg lawyer Jim Amberg successfully sued Dearborn for failing to provide him with videos and reports. 

Using the FOIA law allows us to obtain all sorts of things that we use to bury the police and prosecutor at a drunk driving trial.  For example, we have successfully FOIA'd police policy manuals and use them against the police for failure to properly conduct owi investigations. 

Obtaining a police report through FOIA is simple and simply requires one fill out a form at whatever governmental department where the record is sought. 

Being Arraigned

One guarantee in an operating while intoxicated case is that you will get arraigned.  An arraignment is a court hearing where the court, whether by a judge or magistrate, informs the defendant of the charges against them and takes their initial plea.  Most of the time, the defendant pleads not guilty and the case then proceeds to a pretrial down the road.  Additionally, the magistrate or judge will set a bond, which may include travel restrictions, random drug and alcohol testing, and other requirements.

In most of the Oakland County District Courts, the judges allow waivers of arraignment in first offense OWI cases.  What this means is that we can send in a written waiver to the court, who will then in turn set everything down for a pretrial.  Our clients appreciate this because it eliminates having to go court and many times the random testing requirements are not implemented.