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That’s a really good question, and to answer it, we have to look at the lingo of Driving Under the Influence (DUI) versus Operating While Intoxicated (OWI), as it’s called in Michigan. Operating is defined as the ability to operate the vehicle, so in Michigan, you don’t even have to be actually driving a vehicle in order to be charged with an OWI. You could be in the driver’s seat without the keys in the ignition, but still having the ability to drive or operate the vehicle…that is what’s important; If the keys are within your reach, you can still be charged with Operating Under the Influence.

There are also cases where people were seen driving by bystanders or people who called anonymous tips into the police. Even if the police found the individual sleeping it off in a parking lot, the individual could still be charged with an OWI, because they were seen driving by a civilian.

Can I Speak To An Attorney Before Deciding Whether To Provide Police With A Breath Or Blood Test In An OWI Investigation?

You can ask the police officer who stops you to speak to your attorney, but they’re not obligated to provide you access to a phone in order to speak to an attorney before you take a breath test. Generally speaking, if you tell a police officer, “I don’t know if I should take this or not,” they’ll let you call your attorney; but they’re going to be pretty impatient and will not provide you with an attorney name or a phone number, so you have to have the name and number readily available. It’s good, therefore, to have your attorney’s card in your wallet just in case you’re put into that crisis situation.

Do I Have A Choice Of Whether Or Not To Take A Breath Or Blood Test During An OWI Investigation In Michigan?

There are several types of tests that you might be asked to take. The first, a preliminary breath test (PBT), is a handheld device offered at the scene. Blowing 0.08 or higher on a PBT gives the officer probable cause to arrest you, even if you don’t do any other type of sobriety test. If you refuse to blow into a PBT, the state of Michigan considers this only a civil infraction, costing you around $100 in fines. I would recommend refusing this test at the scene, unless you’ve literally had nothing to drink or consumed so little that you know you’re going to blow under 0.08.

The complication comes in when they offer you the second type, the chemical test, which involves blood, breath, or urine. Refusing this test can get your license suspended for up to a year. The reason for this is that Michigan considers having a license a privilege, not a right. With that privilege comes an implied consent that we give the state or its police officers to ask us for a chemical test if we’re suspected of operating under the influence of either alcohol or drugs. And if we violate that implied consent, the consequence is that our license can be suspended for a year. On a separate note, this implied consent suspension is appealable and must be appealed within 14 days of the refusal.

What Are Some Factors That Would Enhance Or Aggravate An OWI Charge In Michigan?

In Michigan, one major aggravating factor in an OWI case would be the existence of a prior offense. To illustrate, a second offense OWI (OWI 2nd) could earn up to a year (1 year) in the county jail, instead of the 93-day consequence of a first offense, and a third offense becomes a felony with up to five (5) years in prison.

Another aggravating factor would be if the OWI had caused an accident, even if no one was injured. If someone was injured or, God forbid, killed then that could be a felony, which would earn up to five (5) years in prison for a serious injury and up to 15 years for a death.

A third aggravating factor would be a high alcohol or drug content in your system. As an example, if you blow 0.17 or higher Blood Alcohol Content (BAC), that’s called Super Drunk Driving or Operating With a High BAC, which comes with a greater penalty of up to six (6) months in the county jail. You can also lose your license for up to a year and have to install a mandatory interlock device, one of those breath machines, in your vehicle.

For more information on OWI Charges in the State of Michigan, an initial Free Consultation is your next best step. Get the information and legal answers you are seeking by calling (800) 710-0529 today.

Scott Weinberg

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(800) 710-0529