What Happens At A Pretrial In An OWI Case?
Pre-trial Conferences (also known as Status Conferences) are
early-stage proceedings where the case sets off into one of two
directions: Towards litigation, or
towards case negotiation/resolution. Litigation includes all pre-trial motions
as well as trial. Negotiation/resolution
includes all pleas/sentence resolution by which a defendant will enter a guilty
or no contest plea to some negotiated outcome.
How Often Do OWI Cases Go To Trial?
Statewide (and nationwide) statistics show that the grand
majority of OWI cases resolve by plea negotiations. However, a specialized and
experienced OWI attorney will often recognize good pre-trial and trial
litigation issues to pursue in court, and should have a long and verifiable
track record of winning OWI cases at various levels.
What Factors Play Into How You Decide Whether To Take An OWI Case To Trial Versus Taking A Plea Offer?
Attorneys must only advise clients on their options, leaving
the ultimate choice of litigation vs. negotiation to the client. Blood alcohol
level and other chemical test results will be a big factor in this decision, as
will evidence collected from the scene, such as body and dash cam videos,
witness statements, and police reports. All of these should be reviewed very
carefully by a skilled and experienced OWI attorney before making any
Often, pre-trial litigation provides the most fertile
grounds for challenging OWI cases, including suppression motions alleging
improper stops, detentions and test administration. Successful OWI trials often involve lower
blood alcohol levels, operation issues, or poor/untrustworthy police
investigations. That all said, some
clients simply cannot “afford” a misdemeanor conviction, so they chose to try
their OWI case in the hopes of winning on any number of issues.
What Is A Typical Sentence for OWI Conviction?
Most people will receive some form of formal probation for
an OWI/625 conviction. Gone are the days
when a person receives merely a fine and a “slap on the wrist” for an OWI. Now, Michigan law mandates that every person
convicted of OWI must obtain a Substance Abuse Evaluation/Assessment prior to
sentencing. And, the majority of judges
refer offenders to a probationary pre-sentence screening, too.
Probation typically lasts 6-24 months, depending upon the
court and upon a person’s background.
People might have to report to an agent on a regular basis; perform
community service work; test regularly for alcohol and drugs; provide proof on
counseling/treatment; and attend periodic reviews. In some instances, jail or community work
hours are imposed in addition to probationary requirements.
What Is Sobriety Court And Who Is Eligible?
Sobriety court is a specialized treatment program in which
offenders (typically OWI 2nd or subsequent offenders) are given a chance to
avoid mandatory consequences, both in the courtroom and with a driver’s
license, if they complete a very rigorous and intensive rehabilitation program.
As of 2018, Michigan has approximately 23 certified DWI Sobriety Courts. If a person charged with OWI 2nd Offense
enrolls in one of these certified programs and establishes good standing,
he/she can receive a restricted license after 45 days’ suspension rather than
suffering a mandatory 1-year revocation.
Restrictions/Rules Of Sobriety Court
Sobriety Court typically has three phases and most often
lasts 18 to 24 months. These phases involve very intensive treatment,
counseling, and periodic reviews in front of the presiding judge. If a person
in sobriety court relapses, it is extraordinarily likely that his probation
status will be revoked and jail will almost always be imposed.
To enroll in Sobriety Court, a person usually must screen
with a probation agent/coordinator, show a willingness to complete the program,
admit to a substance abuse problem, and not be disqualified for a variety of
reasons (i.e., violent/felony convictions).
If a court does not have a certified Sobriety Court program, attorneys
should be well-versed and experienced in pursuing transfer opportunities to
What Is The Interlock Ignition Device?
In Michigan, a breath alcohol ignition interlock device
(“BAIID”) is a breath tube technology that is installed in a vehicle and used
to start and to continue operating the vehicle during semi-regular intervals. A
person blows into the tube and has his picture taken at various intervals in
order to continue driving. BAIID devices are required for certain offenses, and
are often used discretionally by judges/probation agents to monitor a driver’s
performance while on probation or while seeking a full driver’s license.
Does Everyone Who Is Convicted Or Even Charged With An OWI In Michigan Have To Have This Device Installed In His Or Her Vehicle?
No. As it stands
under current Michigan law, only those drivers who have been convicted of
OWI/High BAC or a second/subsequent offense are usually required to have a
BAIID installed in any vehicle in which they seek to drive. However, judges and
prosecutors are increasingly ordering installation of these devices as a bond
or probationary monitor, even for true first offenders.
How Long Does Someone Typically Have To Have This Device Installed In Their Vehicle?
For Secretary of State purposes, BAIIDs typically must be
installed for a minimum of one year before a person is able to petition to have
it removed. Under certain circumstances, drivers might have the device in their
car for upwards of five years before they are eligible for a hearing requesting
full licensure and removal of the unit.
However, when a judge/probation agent orders a driver on a BAIID, it is
typically for a shorter monitoring period.
For a person convicted of OWI/High BAC, they will have the
BAIID installed for 320 days, and then must submit paperwork to the Secretary
of State requesting removal. This
paperwork will include a certified BAIID report from the interlock company
showing whether the driver fully complied with the unit, and if not, will show
logs/photos of any potential violations.
What Are Consequences Of Violating The Interlock Ignition Device?
Michigan divides violations of the BAIID into two
categories: Major and Minor violations. Major violations include startup
failures, tamper and circumvent violations, and driving vehicles not equipped
with the device. Minor violations consist of a rolling retest violation or
other mechanical issues that do not rise to the level of a serious or major
violation. A major violation typically results in revocation of a person’s
license and, in some instances, new criminal charges. Minor violations typically
do not result in revocation, unless a person has three minor violations in a
specified period of time.
For those drivers on BAIID following an OWI/High BAC
conviction, they will face what amounts to an automatic re-suspension of one
year if the certified report shows any violations. Similarly, for those drivers on BAIID units
who are trying to prove worthiness for full privileges, even the smallest
violation will likely hamper their pursuit—and possibly result in reinstatement
Attorneys who handle OWI and License Appeals must be
well-versed in the mechanics behind the BAIID devices in order to defend their
clients in the face of a major or minor violation allegation. After all, often it is a mechanical issue
(i.e., battery deficiency) or an innocent mistake (i.e., inadvertently missing
a retest) that results in a client having his license revocation reinstated—or
even facing new criminal charges.
However, as a practical tip, attorneys should also
thoroughly warn their clients to scrupulously honor their BAIID requirements,
and to get an immediate alcohol test (PBT or ETG test) upon notice of an
alleged BAIID alcohol reading.
For more information on Protecting
Your Driver’s License In Michigan, an initial consultation is your next best
step. Get the information and legal answers you are seeking by calling (734) 263-2780 today.