Michigan Criminal Defense Lawyer Blog
I seem to return to the subject of ignition interlock violations more frequently than ever, probably because they are on the increase and they are a growing part of my caseload. In some of my previous articles, I have examined many of the reasons that an interlock violation can be brought. In this installment, I want to examine 2 different things about violation cases – what you’re supposed to do after a violation like a missed or positive test, and how the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers, who hear these matters, can be at risk for what I call “violation fatigue.”
To keep this article short, let’s skip all the background analysis about the why and how of violations and begin with the proposition that when you win your license back, the order granting it also contains some very specific instructions about proper ignition interlock use. Unfortunately, many people, in the excitement of being able to drive again, stop reading at the point that tells them where to go to get the interlock installed, and don’t read all the way through to the section about proper interlock use. Others may read it, but either “skim” that section too quickly or otherwise forget most, if not all of it, because things seem to be working just fine and they’re not having any problems with the machine. At least for the time being.
And then something goes wrong. Most of the time, at least among my clients, whatever happens is NOT a result of consuming alcohol, and that can lead to a false sense of security. In other words, when a person knows that he or she has not been drinking, it can lead to them assuming that this situation will resolve favorably because they honestly did not consume any alcohol. That’s not enough. One of the main points of the proper use instructions is to make sure a person has independent, objective proof that he or she hadn’t been drinking when there is a problem. This applies when an errant positive test is quickly followed by clean retests, and even when there is no positive alcohol reading whatsoever, like when a person misses a rolling retest.
rather than merely hoping there is some way to do that.
And it will. If it’s your first DUI, and even if you are charged with a high BAC offense, we can navigate around most, if not all of, the scary sounding penalties, including jail. Really, with only 1 possible exception in one Oakland County court, no one goes to jail in a 1st offense DUI case. While a 2nd offense DUI is pretty much a bucket of suck, it’s not the end of the world, either, and with any kind of good legal work, you can emerge unscathed, and often enough without any real chance of going to jail. In fact, unless you’ve racked up a bunch of prior OWI convictions, even if you’re looking at a 3rd offense DUI, you’re not going to go to prison (at least not here, in the Metro-Detroit, Tri-County area). In other words, no matter how bad things are or seem, you’ll get through this. Of course, the better your lawyer, the better things will be for you. After all, that’s exactly what you are (or at least should be) paying for. Whatever your situation, though, it always helps to realize that, down the road, in about a year or so, this whole mess will be behind you.
The first 3-letter term a driver will encounter is FST, meaning 
This is not just important, it is everything! The Michigan Secretary of State’s primary focus in license reinstatement cases is to screen out those people who present any risk to ever drink and drive again. The SOS has, for its part, correctly concluded that people who do not drink will not drink and drive, so it has drawn a line in the sand right there, and will only return a license to those people who can prove that they have genuinely quit drinking, and are a safe bet to never drink again. This logic here is really quite straightforward.
In the old days, the police report was the pretty much “it,” in terms of evidence leading up to a DUI arrest. Now, we live in the video age. Most police cars today are equipped with dash cams, and it is standard practice in my office to obtain those video recordings in DUI cases. It wasn’t that long ago when almost no police cars had them, and the only real “evidence” of what took place during a DUI traffic stop was, as I noted above, the police officer’s written account of it. With video available for comparison, an officer in a car equipped with a dash-cam must always be mindful of that. Even so, it is not rare, by any stretch, to to read something in the police report that plays out differently on the video, or to see something on the video (like the rough treatment of someone arrested) that was not mentioned in the report.
Beyond staying on top of the law in books and cases, though, my job, as a Michigan DUI lawyer (and the job of every lawyer, really, who takes on an OWI case) is to gather and carefully examine all the evidence. Important here is that ALL of the evidence must be examined. This includes everything, including how much a person drank, where, and when, to how he or she got pulled over or had the first police contact, what happened then (including his or her performance on any field sobriety tests), how the arrest took place, when and how a breath or blood test was taken, how it was analyzed, and ultimately, how those test results were calculated. This must be done carefully, and it must be done critically, meaning the lawyer needs to look for any flaws or problems with the evidence. In this article, I want to focus on getting and examining the evidence in a DUI case.
A recent experience I had at a violation hearing serves as an excellent example to illustrate my point. My client, for whom I had originally won a license, was violated for missing several rolling retests (meaning that when his interlock unit requested a breath test he didn’t provide one) and for what is called “tamper/circumvent” (because the unit recorded that he had disconnected the interlock handset several times). Although he was able to clear himself for both of those things, his revocation was upheld because, although not part of his formal violation, he also broke some other rules regarding his restricted license. This really gets to the point I’m trying to make here.
Almost without fail, the next thing I get asked is something like, “how am I supposed to keep my job?”, or “how do they expect me to support my family?” In this article, what I want to make clear is that the law not only “doesn’t care,” but it actually intends for this to hurt. In the grand scheme of things, the law is fashioned so that the hardship of not having a license is something that should have been considered before a person gets another DUI. One of the Michigan Secretary of State’s Administrative Hearing Section (AHS) hearing officers (these are the people who decide driver’s license restoration appeals) explains it, when people characterize their DUI record as “a mistake,” like this: “A mistake is when you date something using the last year, right after New Year. When you drove drunk, you committed a crime, and when you did it again, you became a habitual criminal.”
In fact, because of the way the law works, if a person whose license has already been revoked has anything placed on their driving record that indicates they were driving, their license will be re-revoked for the same period of time it was originally taken away for (either 1 or 5 years). There is no way to avoid this once something makes it on a person’s driving record, so it is absolutely necessary to make sure that nothing goes on there in the first place. If a person is cited for or charged with any kind of moving violation, including DWLS or DWLR, keeping it completely off their record is essential, and doing that often requires skillful legal maneuvering.