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Defending Your Drunk Driving Charge
By Tony Snyder | March 3, 2010
As the legal limit for drinking and driving gets lower and lower, more and more drivers are being hit with Operating While Intoxicated (OWI) misdemeanors. Mothers Against Drunk Driving (MADD) has become a force to be reckoned with—and one that political leaders refuse to go up against. Therefore, if you get arrested for drinking and driving, it’s imperative you know what to expect from your attorney and how he will defend your case.
Expect to be Questioned
Your lawyer is going to ask you a lot of questions. It’s important to not become defensive and be absolutely truthful—this is the only way your attorney can vigorously defend your case. You’re going to be asked questions like: Why were you stopped? Was there a crime, civil infraction or reasonable suspicion of criminal activity? Where were you stopped? This is important because a police officer outside of their jurisdiction can only arrest you if they see you commit a felony in their presence. Were there any witness? What the police report states happened and what ACTUALLY happens are frequently at odds and your attorney will want to question those witnesses to get their version of the facts.
Get Your Driving Record
You can easily access that from the Secretary of State’s website (www.michigan.gov/sos). The relevance here is to know what sort of points you may have accumulated in the past. Civil infractions such as Speeding, No Turn Signal, and the like could push you over the magic mark resulting in permanent loss of your license. Likewise, prior Driving While Impaired or a Reckless Driving convictions can result in loss of license for 30, 60, 90 or 365 days.
Get Your Ducks In A Row
There are a few things you need to bring with you that your attorney will wish to review. First, your paper driving permit. There is crucial information on that document that might mean nothing to you, but for your lawyer, it’s a wealth of information. Second, bring along your breath-test result sheet. This is going to give observation time and potential error codes. If you refused the breath test we’ll need to confirm you refused it, not because of a technical or operator refusal.
The Scene of the Crime
Be prepared to go with your attorney to the scene where you were stopped by the police. The attorney may want to take pictures so any insight you can give as to when, how, why the police believed you were intoxicated will be helpful. This all comes together like a puzzle to help build your defense and get you the best results possible.
Did Your Refuse To Blow?
Under Michigan law, it’s referred to as an “Implied Consent” violation. Even if the underlying drunk driving charge is dismissed, if you refused to give a preliminary breath test on the scene, you could still lose your license. Part of why your attorney needs the aforementioned documentation is because this will clue him into your refusal to participate in a chemical test. As such a hearing will be held and there are four elements the police must prove at this hearing: 1) that the police had reasonable grounds to believe that you committed a drunk driving offense per the statute MCL 257.625c, 2) that you were arrested for one of those crimes listed in the statute, 3) you were advised of the implied consent or chemical test rights and 4) you unreasonably refused the chemical test. If one of these four elements can’t be proven by the police, you win and the implied consent charge gets dismissed. Same hold true of the police officer does not show on the day/time set for the hearing.
Trial May Be The Only Recourse
If the prosecutor is unwilling to offer an acceptable settlement to your charge, or if you’ve built up such a history whereby no offer is a practical one (i.e. permanent loss of driving ability) please understand your attorney will likely take the case to trial. Trials are expensive so don’t think that your attorney is trying to fleece you — to the contrary, how expensive is a lifetime of bus tokens and taxi rides?
Be Reasonable
Approximately 98% of all drunk-driving offenses result is some type of conviction. For that reason your attorney is going to do the best he can to get you the best offer available. If this is your first offense it is HIGHLY unlikely you will do any more jail time than the night you spent in the “drunk tank.” Find out from your lawyer what sort of license restrictions you will face and the implications they impose. You will be pleased to know that, for the most part, your driving restrictions are minimal for the first offense and that you will still be able to drive to/from work or school.
Conclusion
While you should never drink and drive, as the legal limits gets lower and lower, there will come a time when legalized drinking will take place only in homes where the “fun police” can’t find you. For now, drink responsibly and defend your rights against an overzealous judicial system looking to legally “shake you down” for the hefty fines the county makes off you.
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