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High BAC in Michigan (Metro-Detroit)

A few years ago, I wrote an article pointing out that despite the passage of Michigan’s then-new High BAC law (Operating While Intoxicated with a BAC of .17 or greater), very few DUI arrests were actually resulting in High BAC charges. That was then; things have changed a lot in the last 3 years, and for reasons we’ll explore in this article, the number of DUI arrests that result in High BAC charges has multiplied dramatically. As with so many other things in life, this turns out to be about money. For all the public safety concerns and moral preaching about drunk driving, the stark reality is that DUI cases are the big money makers in the court system. For a while, High BAC cases were decidedly unprofitable for local municipalities. Now that a growing number of cities and townships can cash in, so is the number of High BAC cases popping up in local courts. In this article we’ll look at what changed and what this means to you if you’re facing one.

blood_alcohol_levels 1.2.jpgThis can get rather technical, but the quick and easy version is that because High BAC is a drinking and driving offense punishable by up to 6 months in Jail and a fine of $700, it originally had to be charged as a “state crime,” meaning that your local municipality could not enact an ordinance covering this offense. Here’s what this means: Because High BAC was a “state crime,” all the money the court collected by way of fines went right to the state. Now, if you figure that roughly 1 out of every 3 or 4 (or even 1 out of every 5) DUI charges involves a BAC of .17 or above, and you do some quick, blackjack math, you figure that’s tens of thousands of dollars bypassing the local community and going into the state coffers. Worse yet, that’s tens of thousands of dollars those municipalities used to collect under the old DUI laws that they would start losing out on in High BAC cases. It’s not just that the locals were missing out on the increased fines, they would be giving up roughly anywhere from 20% to 30% of their existing revenue stream.

That didn’t fly. For a while, lots of worried drivers breathed a sigh of relief thinking that they somehow caught a “break” when their BAC results were .17 or higher and they only wound up being charged with a straight up OWI. As I wrote then, the municipality was only giving itself a break, because it didn’t want to waive at a boatload of money as it floated right on by. Frankly, I wasn’t displeased with the way things were handled then, because as a DUI lawyer, it meant that my clients faced less trouble right out of the gate. From the get-go, there were more High BAC cases in the various courts of Oakland County than in either Macomb or Wayne. Whatever concerns were behind the slow pace of bringing these charges in general, they seemed to be less an issue in Oakland County more than anywhere else.

Soon enough, the Governor signed a law that allowed local municipalities to enact an ordinance that would cover High BAC offenses, meaning that if the local police arrested someone with a BAC of .17 or higher, the case could be charged as a High BAC under a local ordinance so that the case could be handled by the city, township or village attorney, and the money collected would stay local, and not go to the state. Can you say “Presto?” Suddenly, High BAC ordinances were popping up everywhere, as were the number of High BAC charges. What became good news for the money counters and local treasurers became bad news for someone whose “a little too much to drink” was, indeed, a little too much.

Early on, and particularly before the locals could bring High BAC charges, it was said the state law almost seemed like a trespass on the Judge’s turf. After all, Judges see DUI cases day after day after day, and even a dimwit can figure something out if he or she sees enough of it. You don’t have to be Einstein to realize that a higher BAC often (but certainly not always) indicates that a person has developed a tolerance to alcohol. Here’s a quick reality check for anyone facing a DUI: If you go out and randomly get 100 people in the population at large, and put them all in room “A,” and then you go and get 100 people who either are now, or have in the past had a DUI, and you put them in room “B,” and you then screen both groups to see if they have, or are at increased risk to develop a drinking problem, it should not come as a surprise that the DUI group will test out as having a far greater incidence of alcohol problems than the population at large. Judges learn this lesson early on, and are reminded of it every single day.

You can assume that most Judges would agree that they know how to do their job. I doubt there is a single Judge who would say he or she doesn’t know how to handle a DUI offender and needed the legislature’s help to figure that out. Every Judge on the bench knows the difference between a person with no prior record and a BAC of .09 as opposed to someone with a BAC of .23 and an open bottle of vodka in the car. No Judge felt that he or she needed state lawmakers to tell him or her to be “harder” on the person with the higher BAC. Indeed, what if, instead of the .09 driver being Mr. or Ms. Clean, we learn that he or she has a couple of convictions for drugs and theft crimes, while the .23 driver is someone who has just had a death in the immediate family? After all, doesn’t being a Judge mean that you’re supposed to “judge?” If the legislature prescribes every sanction for an offense, then what is the point of even having a Judge? What “judgment” is being exercised if the Judge has no discretion in what he or she can, or is supposed to do?

That all sounded great. Unfortunately, it was quickly forgotten once municipalities could charge High BAC offenses, and “charge” the increased fines, as well. The money would stay in the locality, and, indeed, more of it could be collected, all that “discretion” and “judgment” talk just blew away like a gust of hot air. Of all the things I have learned in life and as a lawyer, the one that you can take to the bank every time (pun intended) is that if you want to know why things work the way they do, follow the money. There is simply nothing in this world that cannot be figured out by following the money trail, and this applies to politics, religion, business and everything else. The judicial system has a budget, and does not operate independently of a need to pay bills and balance a budget. Hence, money is as important to the court system as it is to any other kind of operation.

This is perhaps a nice way of saying that when High BAC charges were a money drain on the locals, there were far fewer of them. Want to know why things were the way they were then? Follow the money. Want to know why things are they way they are now, and why more and more municipalities are getting on board with a High BAC ordinance? Follow the money…

For all of these considerations, what does a High BAC charge really mean to you, if you’re facing one? First off, High BAC sounds a lot scarier than it actually is. In the real world, even the worst consequences of a High BAC charge don’t include jail. The only exception to the general rule that you’re not facing jail for your 1st DUI charge anywhere in the Detroit area is in Bloomfield Hills’ 48th district court; nothing about that changes with High BAC. While the High BAC law increases the potential jail penalty from the maximum of 93 days for a regular OWI (and the reduced OWVI, or “impaired driving”) charge to a maximum of 6 months, I have NEVER, in the years that High BAC has been in force, had a client go to jail. Ironically, while going to jail is everyone’s greatest fear, the reality that it won’t happen means that we are basically wasting time talking about it. Instead, we should focus on what will, or is likely to happen in any given case.

It goes without saying that the first goal in any DUI case is to see if there is a way around it. Can we challenge the evidence and get the case “knocked out“? If not, can I negotiate the charge down? In many, if not most situations, I can do just that. This is important because unless your charge is entirely dismissed, you will have to deal with things like driver’s license sanctions and the payment of fines and costs. If you are convicted of High BAC, for example, your driver’s license will be suspended for 1 year: You will have a “hard” suspension for the first 45 days, meaning that you will not be able to drive at all for a month and a half, and then you will have a restricted license for the rest of that year (10 and ½ months) that will require you to drive with an ignition interlock in your car. Simply put, that sucks, and is to be avoided if at all possible, although any kind of license beats none at all.

By contrast, if your High BAC can be negotiated down to the far lesser charge of “impaired driving,” then your license will merely be restricted for 90 days, meaning that you won’t be able to pleasure drive, but your ability to drive to, from and for work, as well as to and from school will not be affected.

Then there’s the money. A High BAC case will easily cost double what you’d pay if your charge is ultimately worked out to “impaired driving,” and that doesn’t even take into account the extra money you’ll need for the interlock or for Michigan’s dreaded driver responsibility fees.

Above and beyond the driver’s license restrictions and the money, a High BAC has the potential to bring a more intense probation than a plain old OWI or an “impaired driving” charge. This potential exists independent of whether the charge is negotiated down, because the Judge is never going to be ignorant of your BAC score. Here, I call upon my clinical training in addiction studies to make sure that my client doesn’t get slapped with all kinds of expensive and long-term counseling and treatment. While it’s great to know the law, handling DUI cases means influencing the outcome of the case above and beyond the purely legal implications. When you think about it, jail is more “legal” than anything else, as is the general concept of “probation.” By contrast, just about everything that happens to someone on probation (classes, counseling and breath or urine testing) is “clinical.” Thus, beyond knowing the law, to keep my client from being hammered with all kinds of “rehab” stuff and classes, I need to be the foremost expert in the courtroom in that area, and my post-graduate matriculation in that field insures that I am. I really could not imagine thinking of myself as a “whole” DUI lawyer otherwise.

At the end of the day, a High BAC charge is something that I have to pull out all the stops to beat or bargain down. As unfortunate as it can seem, the reality is that if you’re facing one, and even if you are on a run of bad luck, things can be worked out so that it won’t be nearly as bad as it may seem. The one truth that winds its way through everything is money, and there is no getting around that, so loosen up your wrist because you’re going to be counting out a lot more bills than you want to part with. Beyond that, we can manage pretty much everything else, despite the very presence of the intimidating term “High BAC.”

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