Q & A

CALL US TODAY (231) 929-7744

Drunk Driving Defense in Northern Michigan

The following is a good plan to follow in the event that you are stopped by a police officer for a OWI.

Most importantly, stay calm and think rationally. Next, don’t forget that police officers keep our streets safe by doing their job and should be appreciated. However, accusing you of OWI is merely the officer’s opinion. His or her opinion can be influenced by any number of factors including human error and your manners. Therefore, it is imperative that you are polite. The easiest way to find yourself in a confrontation leading to an arrest is to be blatantly rude.
In a controlled fashion, move over into the right lane and then onto the shoulder of the road or into a parking lot where you can safely stop your car. Turn off the engine and the radio. Maintaining control and obliging the officer’s request will point away from any mental impairments, such as intoxication.
Be sure that your license, registration and proof of insurance are handy. Get them ready as the officer approaches your car.

In order for a police officer to stop you, there must be what’s called “probable cause” or some reason for the stop communicated to you. It is usually a simple traffic violation such as speeding or having a taillight out that causes the stop. It is onward from here that DWI charges occur if the officer believes that the driver is intoxicated. In order for it to be considered probable that a crime has been or is being committed, the officer must have evidence. However, he only needs the amount that would be required in order to win a civil suit, or preponderance of the evidence (51% certain) as opposed to proof beyond a reasonable doubt like in a criminal trial.

If someone is held at the scene on less evidence than “a reasonable and communicated suspicion” or arrests a person on less evidence than “probable cause”, he violates that person’s constitutional rights not to be unreasonably seized. In that case, any evidence obtained would be inadmissible from the prosecution’s case.

Generally, alcohol can be smelled, so even if you have had just one drink, admit to it. This honesty right up front will make the officer more likely to listen to you. Besides, if alcohol is detectable, denying that you have had anything to drink makes you less credible.
It depends. If you admit to having any more than two drinks, it is likely that you will be arrested for DWI. It gets especially difficult to assess whether or not you are intoxicated when the officer does not consider how long it took you to have those 3 drinks, per se. Consuming three drinks in 45 minutes is much different than three drinks over an entire afternoon.

An option is always to simply not answer the questions at all. Unfortunately, sometimes, non-intoxicated people have been arrested and made to pay a substantial quantity of money for bond, automobile towing, and attorney’s fees to mention a few, just to clear their names.

The Fifth Amendment to the Constitution affords you the right not to incriminate yourself. Kindly ask the officer why you were stopped and whether or not you are under arrest. If you are, you have the right to see an attorney before answering any other questions. Let the officer know that you would like to do that before he or she questions you anymore. If you are asked to take a field sobriety test, mention again that you would like to be advised by your attorney on if that is a good idea or not. You are not refusing or agreeing to take one, you’d just rather keep all of your bases covered with counsel first. However, if you are told to get out of your car, you must oblige.

If the officer says that you are not under arrest, then ask if you are going to be given a traffic ticket, and if you will be allowed to leave afterwards. If the officer says yes, continue to be courteous and quiet. Do not volunteer any information of any kind. If he asks about your consumption of alcohol again, kindly tell him that you choose not to answer any other questions besides those regarding the traffic offense you are being stopped for.

In the event that the officer tells you that you are not under arrest but cannot leave, the best thing to do is to inform the officer of your desire to obtain the advice of a lawyer before answering any more questions. Don’t forget to be polite. By doing this, you have caused the officer to make a choice: either he must now choose to let you go or to wait for you to contact an attorney, in effect, extending his investigation at the scene. If he lets you go, drive cautiously away.

If he prolongs the investigation, he must be careful not to violate your federal and state constitutional rights to not be unreasonably seized. By remaining silent and waiting for an attorney to be present, you make it more difficult for the officer to reasonably seize you. In other words, it is not considered an admission of guilt to use your constitutional right not to self incriminate.

In any event, if and when you find yourself in the classic DWI situation (where you’re being held for a DWI investigation but you’re not yet arrested) it is best to be polite. You should invoke your right to remain silent and to have an attorney present so as to not accidentally incriminate or convict yourself. This way, you are letting the officer do the best he can with the evidence he can legally find.

The standard sobriety test is issued by the police officer who pulled you over. It includes:

1. the horizontal gaze nystagmous (HGN) test;

2. the one-leg stand test;

3. the walk and turn test.

According to the researchers from the National Highway and Traffic Safety Administration who developed these tests, someone who fails the tests has an alcohol concentration of greater than .08. These tests are still debated as to their accuracy and validity.

First, inform the officer, and all officers you come into contact with, that you want to remain silent and not incriminate yourself until you can contact an attorney and have a private consultation with him regarding the things the officers will ask you and ask you to do. Remind the officers that you are neither refusing nor agreeing to cooperate, but that your decision to do the tests and answer the questions depends upon the advice you receive from your attorney.

Sometimes you may be told “you can’t have a lawyer yet”. This may or may not be a valid statement depending on the conditions of your case, but, you won’t know that until you are allowed to speak with a lawyer. The best thing to do is to remain very polite but still firm in your desire to speak to an attorney.

When the police let you the use the telephone, immediately use it and call any attorney you know. If you do not know one, look in the yellow pages to find one. An important piece of information is that most law offices forward their calls after business hours, so you could very well get connected to an attorney at his or her home. When you reach an attorney, be sure that you can speak to him in private, otherwise, the attorney-client privilege is breached and the officer is violating your right to an attorney. You must be allowed to speak to your attorney in private and tell him the situation so he can properly apply the applicable laws and advise you correctly.

It is imperative that you do precisely what your attorney tells you to do as far as answering questions and being cooperative in any way. The goal for us is to examine the case and do the best we can to clear your name of the charge, thereby wiping the slate clean.

Traverse City Criminal Drunk Driving Law

1. Your Michigan driving record will reflect any drinking and driving convictions for a minimum of ten (10) years.

2. In addition to money paid out for fines, costs, monthly probation, alcohol education, reimbursement to the police and prosecutors, and rehabilitation, there are special assessments to be paid between $1000.00 and $2000.00 the following two (2) years to the State of Michigan to retain your license.

3. Any drinking and driving convictions can impede your ability to go to other countries, especially Canada.

4. Certain job opportunities will not be available to those convicted of “drinking and driving” or other crimes.

1. Acquittal by Judge or Jury.

2. Dismissal by prosecutor, or city or township attorney.

3. Plea bargain to a reduced non-drinking offense.

4. Proving the police violated the defendant’s substantial constitutional rights resulting in dismissal.

5. Taking advantage of police failure to maintain testing equipment as required by the State Administration Code for testing blood, urine or breath.

1. Having someone speak for you at sentencing is more persuasive than speaking for yourself.

2. Having an attorney who is an officer of the Court to help you in scheduling court appearances, counseling, etc.

3. To have peace of mind that you didn’t pass up an opportunity to avoid a drinking and driving record or to avoid having a more serious conviction rendered against you.

1. Criminal law is an adversarial system. Justice is obtained when the prosecutor, judge and defense attorney all do their jobs well. The prosecutor’s job does not include helping the defendant to see his or her possible defenses. The judge’s job is to make sure that the defendant understands their rights and to make sure that all court rules and procedures are followed.

2. The prosecutor and judge have huge case loads and even if they wanted to help look out for a defendant’s rights, they would not have the time to review a case and render an in-depth analysis.

1. Keeping out breath test results when the breath machine is not properly calibrated or when the department fails to follow proper procedures, sometimes resulting in a dismissal or reduction of charges.

2. Showing that the police officer has violated the defendant’s constitutional right to be free of unreasonable search and seizure.

3. Stopping a city from enforcing an unconstitutional ordiance, resulting in acquittal.

1. A civil infraction is not a criminal charge. It is instead a violation of law in which you can either plead “responsible” or “not responsible”. If you plead not responsible you are entitled to a hearing. It is your choice as to whether you want a formal hearing or an informal hearing. An informal hearing is before the magistrate it involves just you and the police officer. You are not allowed to have an attorney at an informal hearing. At a formal hearing, the prosecutor will represent the city or the state. You are entitled to have an attorney and the hearing is held before the judge and not a magistrate. The stages of a civil infraction are: 1) ticket; 2) plea of responsibility or hearing; 3) fine or dismissal.

2. A misdemeanor is a criminal charge that carries a penalty of normally one year or less in the county jail. The penalty for a misdemeanor can be as little as no jail and as much as a year in jail, depending on the crime. A misdemeanor conviction is a criminal conviction and will almost always result in a criminal record. With a misdemeanor, you are entitled to have an attorney represent you in court. The court must, in most cases, appoint an attorney if you are unable to pay for one. The stages of a misdemeanor are: 1) arrest or appearance ticket; 2) arraignment; 3) pretrial; 4) trial or plea; 5) sentencing or dismissal.

3. A felony is the most serious criminal charge you can face. A felony conviction can have the most long lasting effects on your life. There is the possibility of prison with a felony conviction. You can lose certain citizenship rights if you are convicted of a felony. The stages of a felony conviction are: 1) arrest or warrant and arrest ; 2) bond hearing or arraignment of the charge in district court; 3) preliminary examination and bind over; 4) arraignment on the charges in circuit court; 5) pretrial in circuit court; 6) plea or trial; 7) sentencing or dismissal.

Divorce and Custody Legal Issues in Traverse City

One of the spouses must have been a resident of Michigan for at least 6 months and in the county for 10 days immediately before filing for divorce.

Michigan has no-fault divorce based on the grounds that “There has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”

If the filing spouse has made a ‘good faith effort’ to locate the missing spouse, and can swear under oath and penalty of perjury that they do not know the current whereabouts of the respondent and have made an effort to locate them, the missing respondent can be ‘served’ by publication of a notice in a local newspaper.

Each county in Michigan sets its own fees for filing legal documents. The filing fee for divorce is generally in the range of $100. If service is made to the respondent by a sheriff or process server, there is an additional fee for service of approximately $25.

Michigan is an “equitable distribution” state, generally meaning that all marital property acquired during the marriage is subject to division. Property brought into the marriage i.e. that a person had before the marriage are not subject to division in a divorce.

Most divorcing spouses set out who will pay what debts as part of their marital settlement agreement during the divorce process, and close all of their joint accounts.

Yes. Alimony may be awarded to either spouse for their support and maintenance after the divorce. It is based on the financial circumstances of the divorcing spouses. The needs of one spouse and the ability of the other spouse to pay are the primary factors in determining alimony. Since most spouses are working, alimony (if awarded at all), is usually for a shorter period of time, and smaller amount than in the past. Alimony may be paid in a lump sum payment of money or the award of some property.

Most parents agree about the custody, child support, and visitation issues relating to their children. Joint custody arrangements have become common place and in some states the “norm” in determining the care, custody and support of children. If the parents are unable to ‘work it out’, a judge will ultimately decide these issues for the parents.

Michigan, like all other states, has guidelines for determining the amount of child support to be paid. The guideline amount is presumed to arrive at an amount of support that is in the child’s best interest. If the parents are unable to agree to an amount of child support, the court will determine the amount of support based on the Child Support Guidelines.

A determination as to who is going to provide medical health care insurance for the children and how any uninsured medical expenses shall be paid between the parties is typically part of the parties’ marital settlement agreement during the divorce process. If medical insurance is available through a parent’s employment, they are required to cover their children through the plan.

As in any other state, orders providing for the support and custody of children is subject to modification after the divorce if their is a substantial change in the circumstances of the parties i.e. an increase or decrease in income or a change in the living arrangements of the children.