Archive for March, 2012

Michigan DUI Lawyer – Michigan Court of Appeals Further Defines “Operating” for Purposes of Drunk Driving Charges

Friday, March 30th, 2012

Though we often refer to drunk driving as DUI or OWI, the truth is that in Michigan, drunk driving is actually called Operating While Intoxicated (OWI). [It is illegal in Michigan to operate a vehicle “upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state if the person is operating while intoxicated.”

As you can imagine, there is quite a bit of gray area as to what it actually means to “operate” a vehicle. For example, what if a person is passed out drunk in their driver’s seat with car engine running and in gear with their foot on the brake? (The Michigan Supreme Court decided this was “operating” a vehicle in People v. Wood). Or, what if a vehicle owned by the drunk defendant is sitting on the road and causes another car to get in an accident? (The Michigan Court of Appeals held in People v. Lechleitner that the “defendant” was operating the vehicle until he could return the vehicle to a position of safety).

Recently, the Michigan Court of Appeals revisited the legal issue of what constitutes operating a car for the purposes of the OWI law in Michigan. In the case, People of the City of Plymouth v. Brittney Lynn Longeway, a doorman at a martini bar told a police officer that he observed some females hit a concrete barrier with their vehicle when they arrived at the bar and also that they later appeared drunk when leaving the bar. The police officer observed that the female driver had the reverse lights of the vehicle on but then put the car back in park. The car’s wheels never moved. The driver was charged with Operating While Intoxicated and she argued that, based on past case law and statutory language in Michigan, she was not “operating” the vehicle. Her argument lost at the District Court level but won at the higher Circuit Court level. The prosecutors appealed, however, and the Michigan Court of Appeals ruled that the defendant was “operating the vehicle.” In deciding this, the appellate court looked to the drunk driving statute that says operating means being in actual physical control of the vehicle. Starting the car, applying the brakes, shifting gears into reverse, and then putting it back into park are all signs of the driver being in actual physical control, according to this ruling.

Many people ask us why they need a drunk driving lawyer if they blew a .08 or more blood alcohol content on their Preliminary Breath Test or DataMaster Test. It’s possible that there may be legal challenge issues in your case, such as whether you were actually or legally operating the vehicle. An experienced OWI attorney can fully examine all the facts of your case and prepare a defense strategy. Contact a drunk driving attorney today.

Guest DUI Blog – What to Do if a Cop Pulls You Over for DUI

Friday, March 23rd, 2012

You’re pulled over on the side of a road, with your engine turned off. The reflection of bright lights from the police car behind you irritates your eyes. The police officer on duty stands outside of both vehicles, and checks over the information listed on your license and registration. He begins asking you how many drinks you’ve had that night. Are you required to answer?

  • You have the right to remain silent. The Fifth Amendment makes it completely legal for you to refrain from responding to the police officer’s inquiries. Your refusal to answer his questions cannot be held against you in a court of law, but if you choose to answer, then a prosecuting attorney can use the officer’s testimony against you. Testimonies based on slurring or stumbling perceived by a police officer can be subjective and manipulated, so it’s best to exercise your right to plead the Fifth.
  • Stay inside your car unless the officer asks you to get out. Jumping out of your vehicle when a cop pulls you over can send out the wrong message. The police officer might mistakenly think that you are armed and might feel threatened. Whatever wrongdoing he suspects of you will only increase if you are not careful, so just sit still and try not to offend anybody.
  • Do not consent to performing field sobriety tests if you feel uncomfortable. Field sobriety tests include having a driver suspected of being intoxicated walk a straight line, balance on one foot, touch his finger to his nose, etc. These tests check for signs of poor coordination before official chemical testing for blood-alcohol level. You are not required to take these sobriety tests if you feel they may be manipulated and used to incriminate you later. You may safely remain silent and refuse.
  • Make an informed decision either to take or to refuse chemical testing. Every state has Implied Consent laws which rule that any licensed driver who chooses to operate a vehicle has automatically agreed to chemical testing requested by a member of law enforcement. Chemical testing includes breath, blood or urine tests. In most states, refusing chemical testing will automatically give prosecutors grounds to revoke your license. Sometimes the consequences are more severe. To find out whether it is better in your state to refuse or to submit to chemical testing, contact a local DUI lawyer.

Sometimes a police officer will arrest you on suspicion of a DUI even if you refuse chemical testing. Whatever the case is, consulting a DUI lawyer who has your best interest in mind will ensure that your rights are defended properly. Many citizens convicted with a DUI do not realize that there are many legal rulings designed to protect them. A DUI lawyer has experience using these protections to defend you. He or she can determine whether the test leading to your arrest was properly administered and whether the machine used to convict you was properly calibrated. With legal assistance you have the potential to save your time, money and reputation.

About the Author: Christopher McCann is an Orange County DUI lawyer and criminal defense lawyer. McCann is a practicing lawyer at the Law Offices of Christopher J. McCann and generally writes on topics related to criminal defense and DUIs. McCann was voted as a “Rising Star Attorney” in 2010 by Southern California SuperLawyers Magazine.