DUI in the Detroit-Area – Why so few Cases are Charged as “High BAC” or “Super Drunk”

As a DUI Lawyer who practices in Macomb, Oakland, and Wayne Counties, I handle DUI cases almost every day. About 2 years ago, our state legislature in Lansing decided that it would be a good idea to “up” the penalties in DUI cases where a person’s breath or blood test (BAC) results are .17 or above. This new Offense is known as “High BAC” or “Super Drunk.” Since it passed, the new Law has, by and large, been a flop. This article will discuss why almost no one Arrested for DUI, and whose breath or blood test results are .17 or above, at least in the Tri-County area, is charged with the new “High BAC” Offense
With all the things wrong in Michigan, one can only wonder how this subject ever even got on the legislative agenda, but if there’s one thing we can say about Lansing, it’s that every time a new law is passed, it will either make life more difficult, or expensive, or both. Ideas for actually making things better just don’t show up on the menu.

Money can4.jpgIn their infinite wisdom, our State Legislators decided that anyone charged with a DUI who had a breath or blood test result (technically called a BAC, or Bodily Alcohol Content) of .17 or above should be charged with a more serious Offense which effectively doubled the penalties of a standard, old-fashioned DUI. Of course, it would have been somewhat unpopular, perhaps to the point of being political suicide, to stand against this idea, so both houses fell in step and went along, and the legislation passed without difficulty.

On the face of it, the notion of making “super drunk” drivers face stiffer penalties sounds like it could have the desired impact of discouraging people form engaging in this kind of behavior. Unfortunately, DUI is always an “unintended” Crime. No one sets out to go and get drunk, much less “super-drunk”, and then drive home. Instead, as a person gets drunker, their ability to make a sound decision regarding driving gets proportionally impaired. In reality, getting drunk fundamentally impairs a person’s ability to make good decisions. At 2 in the morning, and needing to get home, people will inevitably turn to what’s most convenient to do that; their car, even though that’s about the worst decision they could make, and one, when they were sober they swore they never would.

What no one bothered to consider was the financial impact of this new law. DUI has been called a “cash cow,” and is unarguably a big financial boon to municipalities. At its simplest, DUI is big, easy and good money for the Courts, the Towns, and the Police which process and handle these cases.

In their haste to act, the legislature obviously did not consider that in “doubling” the penalties for High BAC cases, they were making this new Offense a state crime that could no longer be handled by local, city and township Attorneys, and would divert the Fines from those municipalities to the state. In other words, the Fines imposed in High BAC cases are paid directly to the State, instead of the city or township where the case has been brought.

This had the potential to cost cities and townships a huge amount of cash. This is like a dam in their revenue stream. And with money being in such short supply, there isn’t a city or township anywhere that wants to give up any more than it has to, especially to the state. Although there may not be any accurate statistics, a large enough portion of DUI charges involve a person who tests out with a BAC of .17 or above. The percentage of people who come in over that limit is substantial. This in turn, presented a potentially substantial cut in the money flowing into cities and townships from DUI cases.

It didn’t take long for these municipalities to find a work-around. And while it may not be in any “official” policy manual, that workaround has been rather obvious to Lawyers, like me, who make a living handling DUI cases. I see as many DUI cases involving BAC scores of .17 and above as I ever did. This hasn’t changed in my 21-plus years of handling Drunk Driving cases. Yet, for all the .17 and above cases I have seen and continue to see, I only know of 2 (and that’s out of hundreds that crossed my desk since the Law became effective) where the charge has brought as a “High BAC.” In other words, these cases are simply being processed as regular DUI’s.

I, for one, won’t be complaining….

Of the 2 High BAC cases that have actually been charged and which I handled, 1 was in Oakland County, the other in Wayne. In the Wayne County case, a plea bargain was struck where the charge was dropped to the much less severe “Impaired Driving” Offense. Interestingly, since the Fines imposed are paid to the state, but the “Costs” are kept by the Court, my Client wound up paying about the same amount had the case been charged as a regular DUI, but the actual “Fine” imposed was a mere $100, while the “Costs” came in at $500. The Court was considerate to my Client by not charging a fortune, at least as far as DUI’s go, because they are expensive. However, NEVER, and I mean NEVER in my 21-plus years of Practice have I seen a DUI result in only a $100 Fine. Ask any DUI Lawyer, and they’ll tell you that a “Fine” of less than $200 in a DUI is unheard of.

Oakland County is another matter. Anyone who does even the most superficial research into the differences between the 3 Counties will discover that Oakland is far tougher than its Macomb and Wayne counterparts. The news has recently been filled with stories about a local, Oakland County Judge who sent a former U of M basketball star to Jail for a 1st Offense DUI, and how sending everyone to Jail is her policy, despite being the ONLY Judge in the Tri-County area to do that.

In Oakland County, the Prosecutor has a policy that prohibits Plea-Bargaining ANY High BAC case to a lesser Offense. Think of it like this: If you pay your income taxes a day late, you’ll have to pay a penalty, and there is 100% absolutely NO WAY to get out of it. Oakland County’s “no deals” policy in High BAC cases is kind of the same thing.

Even there, the Judge in the case I handled was persuaded to go much easier on my Client than is normally the case in a regular DUI, in effect making up for the hard line position of the County Prosecutor.

In the Wayne County case I mentioned, it is important to note that, even though the Prosecutor was, in my opinion, very reasonable in agreeing to resolve the case as an Impaired Driving charge, the city in which the case took place was still not eligible to receive any of the Fines assessed, as the case had been brought and resolved under state law, and not a municipal ordinance. When I asked the Prosecutor, quite candidly, why the Officer wrote my Client up as a High BAC, thereby in effect shortchanging his own employer of the revenue, she was equally candid in explaining that she didn’t know.

This is why almost none of the cases that could be charged as High BAC Offenses, in fact, are. In order for the city or township to be eligible to receive any of the money that will be paid in Fines, the Charge must be made under the municipal Ordinance, and not the state law.

In the 41-B District Court in Clinton Township (covering Clinton Township, Harrison Township and Mt. Clemens) for example, the standard amount of Fines and Costs in a DUI that gets plea-bargained down to the less sever “Impaired Driving” charge is $960. This is all municipal money. If a DUI were to be charged as a “High BAC” case, and even if the charge was ultimately reduced to the lesser “Impaired Driving” Offense, when the Court imposed it’s standard amount for Fines and Costs, $960, the $300 Fine would be paid to the State, and the municipality in which the charge was brought would entirely lose out any part of that.

This requires a bit of explanation. With but a few exceptions that would only serve to confuse this discussion, Michigan municipalities can write laws, called Ordinances, that make certain things a Criminal Offense. And while DUI is prohibited by state law, there is nothing that prevents a city or township from writing a similar law covering the same Offense. The limitation is that Ordinances can only (with few exceptions) be written to cover Offenses the state deems punishable by up to 93 days in Jail. Therefore, when the High BAC law was passed, making this Offense punishable by up to 180 days in Jail, it meant that practically no municipality could write a similar law. High BAC cases could only be charged under state law.

Thus, the only way a municipality can “keep” the money is to NOT write a DUI as a High BAC charge. If the charge is written by the Officer as a “High BAC,” then it goes to the state (meaning County) Prosecutor, not the city or township Attorney, and any Fines paid are essentially forfeit to the state.

Of course, the Police are aware that any charge they “write” is subject to review and authorization by the city or township Attorney, anyway. Thus, the Police can “pass the buck” to their city or township Attorney by simply writing up a DUI as Operating While Intoxicated (OWI) and letting them decide what charge to bring.

Not only have I NOT seen a city or township Attorney “increase” a DUI to a High BAC charge by passing it off to the County, I have never even heard of that being done, and doubt very much that it has been done, at least in the Tri-County area.

I, for one, won’t be complaining.

In fact, it seems to me that this is a sensible, logical response to a Law that wasn’t given enough consideration before it was passed.

That’s not to say that in some cases, city or township Attorneys haven’t indicated to the Lawyer for a DUI driver that they’ll only have 1 chance to keep the case from being brought as a High BAC. In other words, they might say to the Lawyer that “you either take a Plea to straight up DUI (meaning no reduction to Impaired) at the Pre-Trial, or we’ll send this to the County to handle as a High BAC.” This keeps the city or township Attorney from having to screw around with someone who wants to challenge this or that evidence, or who is unwilling to cooperatively resolve the case. Instead of dealing with some hardhead who wants to argue that the Traffic Stop was unlawful, they’ll just say something like “well, we’re done here. You can take that up with the County Prosecutor when we send the case to them to be authorized as a High BAC charge.”

I think that, in time, as city and township Attorneys become more comfortable with handling these cases, more and more of them will likely become more inclined to treat them exactly as they used to, and be willing to negotiate the OWI charge down to Impaired Driving.

As a wrap up to this discussion, I’m reminded of 2 old sayings that apply here. The first is “the golden rule.” It goes: “He who has the gold, makes the rule.”

The other is generally useful in any situation where someone is trying to figure out why things are the way they are, or what happened in a given situation: “Follow the money.”

In this case, it was short-sighted and unfair for the state legislature to ask the cities and townships of this state to follow the money right out of their pockets and into the state’s coffers. And this is perhaps one situation where I am, and I think anyone facing a DUI is equally glad that the bigger concern here is about money. It means that a person who is Arrested for DUI and whose BAC is .17 or above will likely not face the double penalties of a High BAC charge, and will instead face the far less severe, and much more manageable consequences of a plain old OWI charge.

I, for one, won’t be complaining….