This one was an epic battle, that started right before the shut down in March of 2020 and involved the following:
Preliminary Exam 1.
After filing several motions to be heard at the preliminary exam, the police failed to appear and the charges were dismissed.
The charges were then re-issued.
At the arraignment on the re-issued charges and in response to my arguments for personal bond, the court said, “ Counsel that may be true that your client has not had an alcohol related driving offense for over 12 years but what about all the times he drove drunk and wasn’t arrested? Bond is set at 5,000 cash.
Motion to Recuse
Based upon the aforementioned statements by the Court, I was forced to move to Disqualify the Court for bias.
The Court disagreed.
Appeal to Circuit Court ( Regarding the Arraignment and Setting of Bond).
We appealed the District Court Judges Ruling at the arraignment , setting of Bond and its denial of my motion to disqualify the Court for bias.
The Circuit Court ( acting as the Appellate Court) reversed the District Court’s denial of my Motion to Disqualify, reset the bond as a personal bond and remanded to the District Court for a Preliminary Exam to be heard by a different Judge.
Preliminary Exam 2
We refilled our motions in the District Court and appeared for the exam.
The facts involved a vehicle reported to be stalled out, in a church parking lot, and the police were called for a welfare check (although what unfolded seemed to have little to do with the welfare of my client).
Described as standing outside of the vehicle at the time the police arrived for the welfare check, the vehicle was inoperable, not working, stalled out, the engine was not on or working and no keys were found at the scene.
Allegedly, wine bottles were found in the back of the inoperable vehicle, allegedly my client failed the standard and non standardized field sobriety test. He was subsequently arrested, and taken to the stations for Breath Testing.
Allegedly my client refused or technically refused to submit a breath sample, and the arresting officer acting as the affiant, sought out and obtained a search warrant for the blood of my client. The Blood results allegedly were above the legal limit of .08 g/ml and above the High BAC threshold of 0.17 per milliliters of Blood.
During the testimony of the arresting officer, (and not mentioned in any of the police reports) for the first time it was revealed that allegedly my client was observed about an hour prior to the “welfare check” in the driver seat behind the wheel of the vehicle (he was later observed standing near at the time of the welfare check).
This revelation by the officer also included the following: I observed your client behind the wheel of the vehicle we later saw him standing next to, at that time, the vehicle was being pushed by a younger gentleman.
Your client didn’t say anything to me, but the young man pushing the vehicle did say , the car broke down, and I am pushing it out of the road.”
Other highlights from the exam included testimony surrounding the affidavit and search warrant for the blood.
After some hemming and hawing, the court found probable cause existed to bind my client over for Trial.
The Circuit Court.
We filed additional motions in the circuit court. As it goes sometimes, despite perfecting service through the on-line filing system, providing courtesy copies to the Court, we appeared three times, and each time a different prosecutor appeared for the State.
Each time the new assistant prosecutor appeared, they knew nothing about the motions, didn’t receive them, are not connected to the on line filing system, and didn’t even know that the hearing and motions were scheduled.
The Wheels of Justice Grind Slow
Today we finally got an opportunity to argue our motions, or at least one of them. The Court it turned out was in the middle of a jury trial but was able to get us in during the lunch break for some limited arguing.
All involved ( The Judge, the assistant Prosecutor) commented that the facts made this an interesting case. Generally, the essential elements or issues that are needed to prove a Drunk driving case/ Operating While Intoxicated case, are that the person was intoxicated at the time they were operating the motor vehicle.(1)
if a person pulls over after driving, and then consumes alcohol while in their vehicle without any intention of further driving, even while stationary in a parking lot, would be ill advised and very likely to result in an arrest for Operating While Intoxicated, despite not actually driving, because the driver would be in “actual physical control of the vehicle.”
Likewise, pulling over because a driver feels intoxicated with the intention of not driving but instead sleeping it off, would also likely result in an arrest, should police contact occur.
Other States allow for a driver who thinks they may be impaired to pull over, rest and even sleep, without being charged with “operating” while intoxicated.
In Michigan the word “operating” has been interpreted broadly is defined as driving or having actual physical control of the “vehicle.”
The cases and jurisprudence in Michigan that have interpreted these rules are generally not favorable for the accused/ driver.
The reason why this case was interesting, were mostly focused on the legal definitions of “Motor Vehicle” and Vehicle” ( See below). (2)
The Court Decision
Today the Court heard arguments on these issues. The Court ultimately agreed with me, that in fact the testimony at the preliminary exam of the arresting officer who had “observed my client behind the wheel of the vehicle we later saw him standing next to, at that time, the vehicle was being pushed by a younger gentleman.
(Your client didn’t say anything to me, but the young man pushing the vehicle did say , the car broke down, and I am pushing it out of the road)” had described a situation that did not include evidence of “a motor vehicle” or a “vehicle” as those terms are defined within Michigan Law.
The Court found the District Court Judge had erred in making the decision to bind over my client for trial, and that probable cause did not exist or was not at the preliminary exam, to wit: The State had failed to prove that probable cause existed that my client was “operating a moving vehicle/ vehicle” while intoxicated, and dismissed all of the charges.
THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927
(g) “Vehicle” means that term as defined in section 79 of the Michigan vehicle code, 1949 PA 300, MCL 257.79. (below)
MICHIGAN VEHICLE CODE (EXCERPT) Act 300 of 1949
Sec. 79.
“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except, only for the purpose of titling and registration under this act, a mobile home as defined in section 2 of the mobile home commission act, Act No. 96 of the Public Acts of 1987, being section 125.2302 of the Michigan Compiled Laws.(4)
“Motor vehicle” means every vehicle that is self-propelled, but for purposes of chapter 4, motor vehicle does not include industrial equipment such as a forklift, a front-end loader, or other construction equipment that is not subject to registration under this act.
Motor vehicle does not include a power-driven mobility device when that power-driven mobility device is being used by an individual with a mobility disability.
Motor vehicle does not include an electric patrol vehicle being operated in compliance with the electric patrol vehicle act, 1997 PA 55, MCL 257.1571 to 257.1577.
Motor vehicle does not include an electric personal assistive mobility device. Motor vehicle does not include an electric carriage.
Motor vehicle does not include a commercial quadricycle. Motor vehicle does not include an electric bicycle. Motor vehicle does not include an electric skateboard.
FOOTNOTES
Footnote –(1)
Mi Crim Jury Instructions 15.1, 15.1a, 15.2, 15.3
Footnote –(2)
777.1 Definitions.
THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927
Sec. 1. As used in this chapter:
(a) “Aircraft” means that term as defined in section 2 of the aeronautics code of the state of Michigan, 1945 PA 327, MCL 259.2.
(b) “Departure” means that term as defined in section 31 of chapter IX.
(c) “Homicide” means any crime in which the death of a human being is an element of that crime.
(d) “Intermediate sanction” means that term as defined in section 31 of chapter IX.
(e) “ORV” means that term as defined in section 81101 of the natural resources and environmental
protection act, 1994 PA 451, MCL 324.81101.
(f) “Snowmobile” means that term as defined in section 82101 of the natural resources and environmental
protection act, 1994 PA 451, MCL 324.82101.
(g) “Vehicle” means that term as defined in section 79 of the Michigan vehicle code, 1949 PA 300, MCL
257.79.
(h) “Vessel” means that term as defined in section 80104 of the natural resources and environmental
“Motor vehicle” means every vehicle that is self-propelled, but for purposes of chapter 4, motor vehicle does not include industrial equipment such as a forklift, a front-end loader, or other construction equipment that is not subject to registration under this act. Motor vehicle does not include a power-driven mobility device when that power-driven mobility device is being used by an individual with a mobility disability. Motor vehicle does not include an electric patrol vehicle being operated in compliance with the electric patrol vehicle act, 1997 PA 55, MCL 257.1571 to 257.1577. Motor vehicle does not include an electric personal assistive mobility device. Motor vehicle does not include an electric carriage. Motor vehicle does not include a commercial quadricycle. Motor vehicle does not include an electric bicycle. Motor vehicle does not include an electric skateboard.
Sec. 79. “Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except, only for the purpose of titling and registration under this act, a mobile home as defined in section 2 of the mobile home commission act, Act No. 96 of the Public Acts of 1987, being section 125.2302 of the Michigan Compiled Laws.
If you or someone you know has been accused of a crime, DUI or Drugged Driving. Call Komorn Law and turn your defense into an offense. Call Now 248-357-2550
DISCLAIMER This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas, private stuff and general internet BS. Therefore…Before you believe anything on the internet regarding anything – do your research on “Official Government and State Sites”, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain. You’re on the internet.
You can be arrested for DUI when on private property. Private means only so much. Michigan’s drunk driving law allows the police to arrest you for DUI or OUI even if you’re on your own property!
(1) A person, whether licensed or not, shall not operate a vehicle on 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.
The Michigan Supreme Court says a driveway is no refuge for a drunken driver.
The court says Northville authorities could charge Gino Rea with drunken driving, even if his car never left the driveway. The court says a driveway is “generally accessible to motor vehicles” under state law, even if on private property.
Police went to Rea’s home three times one day in 2014 to respond to noise complaints. At one point, an officer saw him drive out of the garage and pull back in. His blood-alcohol level was three times the legal limit.
In a dissent Monday, justices Bridget McCormack and David Viviano say the court should be “hesitant to assume” that lawmakers wanted to extend their reach to the private property of homeowners.
Can you consume cannabis and drive on private property in Michigan?
Marijuana and driving laws in Michigan prohibit operating a vehicle under the influence, consuming while operating a vehicle and smoking as a passenger in the passenger compartment. One would assume that drinking and consuming cannabis lead to a driving or operating under the influence issue and the answer would be.. NOPE
(e) consuming marihuana in a public place or smoking marihuana where prohibited by the person who owns, occupies, or manages the property, except for purposes of this subdivision a public place does not include an area designated for consumption within a municipality that has authorized consumption in designated areas that are not accessible to persons under 21 years of age;
(g) consuming marihuana while operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat, or smoking marihuana within the passenger area of a vehicle upon a public way;
(1) Except as provided in subsections (2) and (5), a person who is an operator or occupant shall not transport or possess alcoholic liquor in a container that is open or uncapped or upon which the seal is broken within the passenger area of a vehicle upon a highway, or within the passenger area of a moving vehicle in …
Can a passenger consume cannabis in a car in Michigan?
(g) consuming marihuana while operating, navigating, or being in physical control of any motor vehicle, aircraft, snowmobile, off-road recreational vehicle, or motorboat, or smoking marihuana within the passenger area of a vehicle upon a public way;
Legal Defense-DUI-OUI-Cannabis-Criminal in Michigan
Here’s the transportation laws
MICHIGAN VEHICLE CODE (EXCERPT) Act 300 of 1949
257.624a Transportation or possession of alcoholic liquor in open or uncapped container open or upon which seal broken; violation as misdemeanor; exception; subsections (1) and (2) inapplicable to passenger in commercial quadricycle; definitions.
Sec. 624a.
(1) Except as provided in subsections (2) and (5), a person who is an operator or occupant shall not transport or possess alcoholic liquor in a container that is open or uncapped or upon which the seal is broken within the passenger area of a vehicle upon a highway, or within the passenger area of a moving vehicle in any place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, in this state.
(2) Except as otherwise provided in subsection (5), a person may transport or possess alcoholic liquor in a container that is open or uncapped or upon which the seal is broken within the passenger area of 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 in this state, if the vehicle does not have a trunk or compartment separate from the passenger area, and the container is in a locked glove compartment, behind the last upright seat, or in an area not normally occupied by the operator or a passenger.
(3) A person who violates this section is guilty of a misdemeanor. As part of the sentence, the person may be ordered to perform community service and undergo substance abuse screening and assessment at his or her own expense as described in section 703(1) of the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1703. A court shall not accept a plea of guilty or nolo contendere for a violation of this section from a person charged solely with a violation of section 625(6).
(4) This section does not apply to a passenger in a chartered vehicle authorized to operate by the state transportation department.
(5) Except as otherwise provided in this subsection, unless prohibited by local ordinance, subsections (1) and (2) do not apply to a passenger in a commercial quadricycle. A passenger in a commercial quadricycle shall not transport or possess alcoholic liquor other than beer, wine, spirits, or a mixed spirits drink.
(6) As used in this section:
(a) “Glove compartment” means a recess with a hinged and locking door in the dashboard of a motor vehicle.
(b) “Passenger area” means the area designed to seat the operator and passengers of a motor vehicle while it is in operation and any area that is readily accessible to the operator or a passenger while in his or her seating position, including the glove compartment.
DISCLAIMER In a legal environment that continues to evolve, it is essential to stay informed and seek guidance from knowledgeable professionals. Before acting on any information you find on the internet, this website, any linked website, any referring website or any verbal or written information consult a licensed attorney. Contact Komorn Law today to discuss your case and learn how we can assist you in navigating the complexities of Michigan’s laws. Consult an Attorney – Remember you’re on the internet.
Prescription drugs, medical marijuana, recreational cannabis, alcohol and more are considered to influence you in a way the law deems a crime. Therefore you can be charged with operating a motor vehicle or driving under the influence and here are your possible penalties in the state of Michigan.
It can be a car, a boat, a moped, a motorcycle, a riding lawn mower, a hovercraft or as those of you from the future know all to well… spacecraft (even on auto pilot). Well you say – I’m on a horse and it knows it’s way home. Well there’s a another special charge for you we won’t get into here.
– a $100 to $500 fine and one or more of the following:
– Up to 93 days in jail.
– Up to 360 hours of community service.
– Driver’s license suspension for 30 days, followed by license restrictions for 150 days.
– Possible vehicle immobilization
– Possible ignition interlock
– Six points added to driving record
– Driver Responsibility Fee ($1,000 for 2 consecutive years)
– $200 to $1000 fine, and one or more of the following:
– 5 days to 1 year in jail.
– 30 to 90 days of community service
– Driver’s license revocation and denial for a minimum of 1 year (minimum of 5 years if there was a prior revocation within 7 years).
– License plate confiscation.
– Vehicle immobilization for 90 to 180 days, unless the vehicle is forfeited.
– Possible vehicle forfeiture.
– 6 points added to the offender’s driving record.
– Driver Responsibility Fee of $1,000 for 2 consecutive years.
From The State of Michigan Website
It is a crime for a driver to have a bodily alcohol content (BAC) of .08 or greater if over age 21 or .02 or greater if under 21. In addition, Michigan has a high-BAC law with enhanced penalties for anyone caught driving with a BAC of .17 or higher. However, drivers can be arrested at any BAC level if they exhibit signs of impairment while operating a motor vehicle.
Drivers with any amount of a Schedule 1 controlled substance and/or cocaine are subject to the same fines and penalties as drunk drivers, even if they show no signs of impairment. The only exception is an individual who has a valid medical marijuana card and is driving with marijuana in his or her system. Under the law, an officer must show they are impaired due to that marijuana.
Costs and Consequences of a Drunk Driving Conviction
Here are possible Michigan DUI / OWI Penalties for a first offender:
If BAC is below .17 and this is a first offense:
Up to $500 fine
Up to 93 days in jail
Up to 360 hours of community service
Up to 180 days license suspension
6 points on a driver’s license
If BAC is .17 or higher and this is a first offense:
Up to $700 fine
Up to 180 days in jail
Up to 360 hours of community service
Up to one year license suspension
6 points on a driver’s license
Mandatory completion of an alcohol treatment program
Ignition interlock use and compliance after 45 days license suspension is required to receive a restricted driver’s license. Convicted drunk drivers have limited driving privileges, are prohibited from operating a vehicle without an approved and properly installed ignition interlock device, and are responsible for all installation and upkeep costs for the device.
Anyone who refuses a breath test the first time is given an automatic one-year driver’s license suspension. For a second refusal within seven years, the suspension is two years.
Convicted drunk drivers are subject to a $1,000 penalty for two consecutive years under the Driver Responsibility Act, for a total of $2,000 in additional costs.
Safer Alternatives
Tens of thousands of people are arrested annually in Michigan for alcohol-related driving offenses. To avoid a drunk driving arrest and the costs associated with such an arrest:
Designate a sober driver before drinking alcohol
Call a friend, cab, ride service
Walk, or take the bus (and maybe get a public drunk ticket)
Stay overnight
If you are from the future then you may want to check out this page for any new laws or updates. I’m sure there are some because that’s all lawmakers do to justify their salaries. We don’t need so many and if you are from the future you may have defunded them already. Website (if the web is still a thing).
DISCLAIMER This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas and general internet BS. Therefore…Before you believe anything on the internet regarding anything – do your research on Official Government and State Sites, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain.
Walking – It’s still a right for now. Driving is another story. That is for the privileged. You must fight for that privilege when the system is in the process to take it away. Your best defense is a good offense. Komorn Law PLLC is the firm you hire when you want to go on the offense to put the system on defense. Yes that was some marketing we slipped in. Carry on…
Dangerous, negligent, or careless driving behavior can result in both serious legal consequences and the temporary or permanent loss of driving privileges.
License suspension
If a driver’s license is suspended, an individual’s driving privileges are temporarily withdrawn for a specific period and may be reinstated once the terms of the suspension are fulfilled. Because a driver’s license renewal transaction is required you must visit a Secretary of State Branch office to get your license reinstated.
License revocation
If a driver’s license is revoked, an individual’s driving privileges are terminated and can only be reinstated if the individual meets eligibility requirements and any conditions or terms set forth in a hearing facilitated through the Michigan Department of State.
Common causes for suspension or revocations
Six Points:
Manslaughter, negligent homicide, or other felony involving use of a motor vehicle
Operating under the influence of liquor or drugs
Failing to stop and give identification at the scene of a crash
Reckless driving
Unlawful bodily alcohol content of 0.08 or more
Refusal to take a chemical test
Fleeing or eluding a police officer
Four Points:
Drag racing
Operating while visibly impaired
Under age 21 with any bodily alcohol content
16 mph or more over the legal speed limit
Failure to yield/show due caution for emergency vehicles
Three Points:
Careless driving
Disobeying a traffic signal or stop sign or improper passing
11 through 15 mph over the legal speed limit
Failure to stop at railroad crossing
Failure to stop for a school bus or for disobeying a school crossing guard
Two Points:
Open alcohol container in vehicle
All other moving violations of traffic laws
Refusal of Preliminary Breath Test (PBT) by a driver under age 21
NOTE: Snowmobile and off-road vehicle (ORV) alcohol-conviction points are placed on a driver record and may result in licensing action against your driving privileges even though the violation happened while operating a snowmobile or ORV.
If you or someone you know has been accused of a crime, DUI or Drugged Driving. Call Komorn Law PLLC and turn your defense into an offense. Call Now 248-357-2550
Understanding the hearings process
Due to COVID-19 social distancing requirements there are NO LIVE (IN-PERSON) hearings being held at this time. Until further notice ALL OHAO hearings are being held via video conferences using Microsoft Teams.
If you have not already done so, please download the free Microsoft Teams app now. DO NOT REGISTER or LOGIN.
Review the Notice of Hearing to find the name of the hearing officer assigned to your hearing.
Locate the name of the assigned hearing officer on the list below.
Follow the link below the name of the assigned hearing officer that says (Follow this link to join the meeting) join as a guest using your first/last name.
Make sure to enable your camera and microphone icons found at the bottom center.
You must access this link from the device you intend to use.
This is a formal hearing, and you should be in a quiet location by yourself and have a clear table/area in front of you that is free from any documents.
PLEASE FOLLOW THE LINK BELOW AND SELECT THE HEARING OFFICER FROM YOUR LETTER
Drug and alcohol related suspensions and revocations
If your driver’s license was suspended or revoked due to a drug or alcohol related offense, you will want to familiarize yourself with the following programs and information as you work to restore your driving privileges.
Older drivers, drivers with numerous crash histories, drivers who may have been referred for health reasons after a license suspension, or as a result of a hearing may need to submit to a safe driving assessment and reexamination process.
Driver assessment
The privilege to drive is often taken for granted, but you may lose your privilege to drive for many reasons. The Secretary of State’s Driver Assessment Section is responsible for conducting driver reexaminations as authorized by the Michigan Vehicle Code. The purpose of a reexamination is to determine your ability to drive safely and if any licensing controls should be imposed.Michigan law allows for a driver reexamination based upon one or more of the following criteria:
You have received tickets while on probation.
The Secretary of State has reason to believe that you cannot operate a motor vehicle safely due to a mental or physical condition.
You have been involved in a fatal crash.
You have been involved in three or more traffic crashes within a two-year period where the crash report indicates you were at fault.
You have accumulated 12 or more points within a two-year period.
You have been convicted of violating the restrictions, terms, or conditions of your license.
Driver reexamination
Michigan law authorizes the Department of State to reexamine a driver when there is reason to believe the driver may be unable to operate a motor vehicle safely. The Department relies on information from law enforcement, medical personnel, Secretary of State branch staff, and concerned citizens, including family members, to identify unsafe drivers. The Department of State provides a form, called a Request for Driver Evaluation (DA-88), that can be completed and submitted to the Driver Assessment Section to request a review of an individual’s driving skills. This form is available at your local Secretary of State branch office or by clicking the link here.
Basic Driver Improvement Course
The Basic Driver Improvement Course program allows eligible drivers to take a refresher course of basic traffic safety principles. Drivers who successfully complete the BDIC through an approved sponsor can avoid points or ticket information from being reported to their insurance company.
BDIC eligibility
You will receive a letter in the mail if you are eligible for this program. You may be eligible if you were ticketed on or after December 31, 2010, and:
You have a valid Michigan, non-commercial license, with two or fewer points on your record,
The violation was not in a Commercial Motor Vehicle,
The violation was not a criminal offense,
The ticket you received is eligible (e.g., must be for three or fewer points, not for careless or negligent driving, etc.)
The course requires a minimum four hours of study before the first attempt to pass the final test. This refresher course can improve safety for all Michigan drivers. Eligible drivers have 60 days to arrange for and successfully complete the BDIC. The course completion deadline is listed on the notice of eligibility. Eligible drivers should begin the BDIC well before the deadline to ensure it can be completed before the deadline. The approved sponsor will notify the Secretary of State of course results.
Course options
BDIC are offered both online and in classroom settings by sponsors approved by the Michigan Department of State. Each sponsor uses a program that is based on a curriculum for which there is documented evidence from a federal, state, or local government agency of course effectiveness in reducing collisions, moving violations or both. Prices may vary.
The State of Michigan does not endorse any sponsor. Course sponsors are solely responsible for reporting results in a timely manner.
Please select your preferred method of taking your Basic Driver Improvement Course - Online or Classroom.
Frequently asked questions (FAQs)
What are the potential outcomes of my driving reexamination?
At the conclusion of your driver assessment reexamination, your license may be unaffected, or it may be restricted, suspended, or revoked depending on several factors. These factors include the type of violation or unsafe driving behavior involved, your driver record, and your willingness to comply with assessment recommendations and requirements.
License restrictions allow you to drive under certain terms and conditions that will be stated on your restricted license. A license suspension means that your driving privileges are taken away for a determined period of time, ranging from days to months. A license revocation means that you must wait one to five years before you are eligible to reapply for possible re-licensure. If your license is restricted, suspended, or revoked, you will be given your appeal rights and licensing reinstatement information.
What do I do if I need a reexamination of my driving skills?
If you are scheduled for a driver assessment reexamination, whether through a referral or mandated by the terms of a suspension, you will receive a notice telling you when and where to appear. Your reexamination will include time for the driver assessment analyst to review your driver record and discuss your driving behavior with you. You may be required to pass vision and knowledge tests as well as an on-road performance test. You may also be required to provide a medical or vision statement for review.
DISCLAIMER This post may contain re-posted content, opinions, comments, ads, third party posts, outdated information, posts from disgruntled persons, posts from those with agendas and general internet BS. Therefore…Before you believe anything on the internet regarding anything – do your research on Official Government and State Sites, Call the Michigan State Police, Check the State Attorney General Website and Consult an Attorney – Use Your Brain.
LANSING, Mich. — Governor Whitmer yesterday signed House Bills 4219 and 4220, which will allow for expungement of convictions for a first violation of operating while intoxicated (OWI) under certain circumstances. The bills are expected to allow an estimated 200,000 non-repeat OWI offenders to have the opportunity for a second chance at a clean record.
The governor also signed legislation that continues Michigan’s legal blood alcohol content (BAC) level for driving at .08, eliminating a planned sunset that would have increased the limit to .10.
“No one should be defined by a mistake they have made in the past,” said Governor Whitmer. “These bills allow Michiganders to move on from a past mistake in order to have a clean slate. We must clear a path for first-time offenders so that all residents are able to compete for jobs with a clean record and contribute to their communities in a positive way.”
The bills give those with OWI convictions the option to seek expungement of their first offense five years after probation ends. Applicants must submit a petition to the court, which would be reviewed and determined by a judge. Incidents that caused death or serious injury to a victim are not eligible.
“Drunk driving is a serious problem in Michigan, but permanently limiting a person’s ability to work and drive based on a one-time, decades-old mistake does not make sense. People who can show that their DUI conviction was a one-time mistake should have an opportunity to make a fresh start.”
Safe & Just Michigan Executive Director John S. Cooper said.
If you or someone you know has been accused of a crime, DUI or Drugged Driving. Call Komorn Law PLLC and turn your defense into an offense. Don’t take a plea until you call us Call Now 248-357-2550
Together, the bills allow for the criminal record expungement of first-time offenses for:
Any person operating a vehicle with a BAC of .08 or more
Any person operating a vehicle while visibly impaired by alcohol or other controlled substance
A person under 21 years old operating a vehicle with a BAC of .02 or more
Any person from operating a vehicle with any bodily amount of cocaine or a Schedule 1 controlled substance
House Bill 4219 was sponsored by Rep. Tenisha Yancey, D-Grosse Pointe, and House Bill 4220 was sponsored by Rep. Joe Bellino, R-Monroe.
House Bill 4308 and House Bill 4309 will together amend the Michigan Vehicle Code and the Code of Criminal Procedure to maintain the state’s per se OWI presumption at a BAC level of .08. Without this legislation, Michigan BAC legal limit was set to rise to .10 on October 1, 2021, endangering Michigan drivers and costing the state millions in federal dollars.
“Michigan is the only state in the country not to have a firm .08 Blood Alcohol Concentration limit for operating a motor vehicle,” said Rep. Graham Filler. “Eliminating the sunset is not only the right thing to do, but it ensures the safety of those traveling on our roads.”
House Bill 4308 was sponsored by Rep. Abdullah Hammoud, D-Dearborn, and House Bill 4309 was sponsored by Rep. Graham Filler, R-DeWitt.
House Bill 4220 (S-1) would amend Section 1c of Public Act (PA) 213 of 1965, which provides for setting aside convictions in certain criminal cases, to allow the setting aside of a conviction for a first violation operating while intoxicated (OWI) under certain circumstances. House Bill 4219 (S-1) would amend Section 1 of PA 213 to prescribe the definition of “first violation operating while intoxicated offense” and to modify the definition of “operating while intoxicated”.
House Bill 4308 (H-1) would amend the Michigan Vehicle Code to delete the sunset of October 1, 2021, on which the bodily alcohol content (BAC) that constitutes OWI will increase from 0.08 to 0.10.
House Bill 4309 would amend the sentencing guidelines within the Code of Criminal Procedure to reflect the elimination of the sunset provision raising the BAC that constitutes OWI. Senate Bill 400 would amend PA 213 to prescribe the time period in which an application to set aside a conviction for a first violation OWI offense would have to be filed.
House Bills 4219 (S-1) and 4220 (S-1) are tie-barred to each other. House Bill 4308 (H-1) and 4309 are tie-barred to each other. House Bill 4308 (H-1) also is tie-barred to House Bill
Senate Bill 400 is tie-barred to House Bills 4219 and 4220.
FISCAL IMPACT
House Bills 4219 (S-1) and 4220 (S-1) likely would not have a noticeable fiscal impact on local court systems. While the bill likely would result in additional expungement filings across the State, it is assumed these filings would not flood the local court systems with additional
administrative costs and hearing requests. There are several fees associated with the expungement process ($50 to the Michigan State Police (MSP) for a background check, $10 to $15 to MSP for fingerprints, $10 to the Internet Criminal History Access Tool (ICHAT)), but no filing fees that go to a Judiciary restricted fund.
The bills likely would not have a fiscal impact on State government.
House Bill 4308 (H-1) would have no fiscal impact on State or local units of government; however, allowing the BAC sunset to take effect could reduce costs for the Michigan Department of Corrections (MDOC) and reduce revenue for local libraries. Currently, under the State’s per se statute, a person with a BAC of 0.08 grams is considered to be operating while intoxicated; however, the statute requires the per se level to revert back to a BAC of 0.10 grams on October 1, 2021.
Enactment of the bill would have no fiscal impact on the State or local units as the current BAC thresholds would remain the same; thus, costs associated with them would remain unchanged. However, absent the bills, the likely result would be fewer convictions and a reduction in jail times and sentences. As a result, the MDOC could save an estimated $42,400 per prisoner per year, the average annual cost for incarceration in an MDOC facility.
Additionally, the average costs for parole and felony probation supervision services averaging $4,300 annually per supervised offender, also could be saved. Finally, fewer convictions would result in fewer fines, which would lead to lower revenue for local libraries (which are the beneficiaries of civil fines).
The bill also would preserve existing Federal aid apportionments as it would lift the sunset on the 0.08 BAC standard. Under Federal law (23 USC 163), states that do not comply with at least a 0.08 BAC standard can lose Federal aid through the National Highway Performance Program and the Surface Transportation Program. The Department of Transportation estimates these loses could be up to $53.0 million in Federal aid per year. Currently, Michigan receives roughly $1.4 billion in Federal aid per year.
House Bill 4309 would have no fiscal impact on local government and an indeterminate fiscal impact on the State, in light of the Michigan Supreme Court’s July 2015 opinion in People v. Lockridge, in which the Court ruled that the sentencing guidelines are advisory for all cases. This means that any changes to the guidelines under the bill would not be compulsory for the sentencing judge. As penalties for felony convictions vary, the fiscal impact of any given felony conviction depends on judicial decisions.
Senate Bill 400 would have an indeterminate, though likely negative, fiscal impact on local courts. Additional costs likely would come from an increase in the number of expungement filings for a first violation OWI offense. The number of increased filings is indeterminate and any additional costs would have to be absorbed by local court systems.
There are several fees associated with the expungement process ($50 to the MSP for a background check, $10 to $15 to MSP for fingerprints, and $10 to ICHAT), but none of these fees go to a Judiciary restricted fund. Expungement hearings typically do not take very long; however, a large increase in these hearings could increase costs for courts in the form of administrative costs and hearing times.
Bill Analysis
House Fiscal Agency Analysis
Summary as Introduced (2/15/2021) This document analyzes: HB4219, HB4220
Revised Summary of Proposed H-1 Substitutes (2/23/2021) This document analyzes: HB4219, HB4220
Analysis as Reported from Committee (3/3/2021) This document analyzes: HB4219, HB4220
Analysis as Enacted (10/18/2021) This document analyzes: SB400, HB4219, HB4220
Senate Fiscal Analysis
SUMMARY OF HOUSE-PASSED BILL IN COMMITTEE (Date Completed: 4-14-21) This document analyzes: HB4219, HB4220, HB4308, HB4309
SUMMARY OF BILL REPORTED FROM COMMITTEE (Date Completed: 5-4-21) This document analyzes: HB4219, HB4220, HB4308, HB4309, SB0400
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