Multiple Alcohol Related Driving Offenses

What happens if I am convicted of a second, or even third alcohol-related driving offense?

Michigan’s drunk driving laws have stiffened during the past decade as awareness of the dangerous effects of alcohol has increased. Under current law, your second offense will automatically result in a 6-month suspension of your license and you will need to apply to the Secretary of State to have it reinstated. Depending on your driving record, the suspension could be longer. It is important to know, however, that the judge has nothing to do with this portion of your punishment. Your driver’s license is under the control of the Secretary of State.

Upon plea or conviction of a second offense, however, the judge will sentence you to a variety of punishments, including jail time. Some judges will give you just a taste of life in the county lock-up while others, depending on the circumstances, will arrange for a much longer stay.

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Can I Refuse Preliminary Breath Test?

If I am pulled-over while driving by a police officer and asked to take a preliminary breath test, should I refuse participation if I’ve been drinking?

It is not illegal to drink alcohol prior to driving an automobile in Michigan; it is illegal, however, to drive drunk. It is a universally accepted fact that alcohol impairs the ability to drive. Intoxication is measured “on the spot” by testing a driver’s blood alcohol content with a device known as a “breathalyzer”. This device performs a “preliminary breath test” that takes a reasonably accurate measurement of the suspect’s blood alcohol level.

Under Michigan’s implied consent laws, refusal to participate in a preliminary breath test when pulled-over while driving will result in a night in jail (22 hours minimum) and an automatic six-month suspension of your driver’s license, regardless of whether you’ve been drinking.

Prior to submitting to the breath test, consider removing your mouth-alcohol by breathing vigorously through your mouth in the moments preceding the test. Even though the breathalyzer is designed to detect mouth alcohol, a false positive may result when a person is just below the legal limit, yet has alcohol in his mouth from a recently consumed alcoholic beverage.

Prior to administering a breath test, most officers will ask you to perform a series of field sobriety tests. These typically include counting backwards, saying the alphabet, standing on one foot or walking a straight line. The officer must advise you of your “chemical test” rights prior to administering a breath test. You will be advised about the consequences of a refusal as well as your right to obtain an independent blood alcohol test.

Once you perform the breath test, politely ask the officer to show you the result. If the result from your preliminary breath test is .07 or lower, you are not legally impaired and you do not have to submit to an additional test. If asked to perform another test by the officer after blowing .07 or lower, you should ask for the printed breathalyzer receipt from your first test at this time and consider refusing a second test until you speak to an attorney. Many officers will allow you to use your cell phone to attempt to reach your attorney.

Driving over the legal blood-alcohol limit in Michigan (either as “impaired” or “operating under the influence of liquor”) is a misdemeanor punishable by up to 90-days in jail plus fines and court costs of up to $1000. Each district judge is different, but if you plead guilty or are convicted, you ordinarily will be sentenced to attend some form of alcohol awareness course, alcoholics anonymous or both. You may even see some jail time, although this is rare for a first alcohol-related offense. A second offense within seven years will net you some jail time in most district courts (usually from 14 to 90 days, but it could be up to a year).

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Family Member Possibly Involved in Serious Crime

A member of my family has been contacted by our local police about a matter they must think she has something to do with and they want to discuss it with her at the police station. Should she go?

If your family member is involved in a serious crime, she should hire legal counsel as soon as possible. While most people desire to cooperate with authorities in such matters, it is usually risky doing so prior to hiring an attorney. In many cases, the things that are said by a suspect to law enforcement officers prior to hiring an attorney constitute a basis to convict that suspect of a crime. Hire a lawyer first!

It is important to remember in this situation that the primary job of any local police force is to enforce the law. Part of this job involves solving crimes in order to bring those responsible to justice. If they want to speak with a member of your family, they want to acquire evidence to solve a crime or to support a criminal charge against someone (maybe even your family member) in court. While it may be that your family member had very little to do with the matter in question and the police simply desire to find out what she knows, it is risky allowing her to speak to the police about a crime without a professional present and retained to represent her interests. This is because a law enforcement officer has broad discretion as to how to memorialize what she says. Her statement may be taped or written out in her own words or her statement may be summarized by the investigator in his words. If the investigator summarizes the interview, he may have a bias or suspicion about your family member and slant his report against her accordingly. In a case where your family member is recorded or writes out a statement, remember that the investigator is trained to elicit the maximum amount of information from an interviewee through the questions posed. In the early stage of an investigation, no one is beyond suspicion, even if they are cooperative.

Most people find it shocking that police can use tricks and misrepresentations in order to scare or intimidate a suspect into divulging more information than they needed to. This is why it is wise to have an attorney present. These tricks won’t work on a professional.

In any event, anything and everything discussed or included in a report or statement can later be used as evidence in court against your family member. Also, her very demeanor, movements and nervousness can later be submitted as evidence of her possible involvement in the crime. Few things are as frightening as when the police turn a person’s cooperation against them in their zeal to solve crime. An attorney representing your family member at this stage will have input into the questioning process, will be able to clarify inquiries, and can avoid unnecessary incrimination.

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