The Bottom Line in a Michigan DUI Case – Operating While Intoxicated (OWI)

In this article, I’m going to follow suit from the last installment on this blog about the bottom line in a Michigan Driver’s License Restoration Appeal, and take a step back in order to answer the question “what is the bottom line in a Michigan DUI case?” Having authored over 90 rather detailed articles about every step in a Drunk Driving case, and giving the subject an unusually honest and in-depth treatment on my website, it occurred to me that sometimes, as I noted in the previous article about Driver’s License Restorations, we can get so caught up in all the rules and technicalities that we lose sight of the big picture, and, as the saying goes, “can’t see the forest through the trees.”

Here, we’ll set out to uncover and really highlight what, after everything is said and done, a DUI case is really all about.

NightCop 1.2.jpgAs we approach this topic, we begin to see the problem with imposing a simple question upon such a complex topic. Legal definitions cannot be escaped. In the real world, “driving” a car, or “operating a motor vehicle” means, well, driving it.

Not so in the world of DUI, where the Courts continually refine and redefine things in what almost always seems like the wrong direction. According to Michigan Law, as made clear by our Courts, “operating” a motor vehicle extends to merely sitting behind the wheel with the keys in the ignition, even if the car is not running. While I generally avoid interjecting anything remotely like political opinion into my blog articles, this is an example of how far afield the whole judicial system has gone. This is but one of many examples, just within the DUI field, where logic has been twisted and bent beyond common sense.

Hardly anyone, if they trusted their 10 year old child enough (as many parents would) to run out to the car while it’s in the driveway, and put the keys in it and sit for a minute behind the wheel while mom or dad comes out, would answer, if asked “where’s little Timmy” by saying, “oh, he’s out driving the car.”

Thus, as I try pull out a “bottom line” to DUI cases, I cannot completely ignore, precisely because I’m a DUI Lawyer, things that a regular person would take for granted, like what it means to be “driving” a car.

The same thing goes for a person’s BAC, or Bodily Alcohol Content, as measured by a breath or blood test. There seem to be a million little rules and issues involved in determining what that number really is, and what it really means. In a sense, there is no clear agreement on what an accurate BAC score really is, or how it’s obtained, or what it means. Consider an example (this is also an example of how DUI Lawyers challenge breath or blood evidence):

Dan the driver has had a few drinks, and before hitting the road to go home, has a large glass of scotch. He lives about 5 minutes away from the bar he’s leaving. As he turns onto his block, he is pulled over. He does a roadside breath test (PBT) that gives a result of .071, just under the legal limit for OWI. He’s Arrested just feet from his own house, and taken to Jail. Nearly an hour later, he takes a breathalyzer test and registers a .17 and a .18. Dan would have been in his house before the Police Officer even gave him the roadside breath test. Thus, had he made it home without having been stopped, he would have never have actually driven (meaning “operated”) his vehicle while above the legal limit of .08.

How, then, can Dan be rightfully accused of, much less be guilty of driving over the legal limit. How do we define OWI, which stands for “Operating While Intoxicated?” After all, it seems like Dan was never really over the limit while driving. He only became “over the limit” later, when he was tested at the Police station.

Recalling “little Timmy” for a moment, what if Dan decided to leave the bar having had the same few beers and glass of scotch, but on a cold January night. Dan was tired, and he feared he might have had too many, even though that glass of scotch hadn’t kicked in yet. He started his car, got it warm inside, then cut off the ignition so that he could just go to sleep for a bit. Unfortunately, the bar emptied out, and about an hour later, the Police rolled up, knocked on the window and woke Dan, who had left the keys in the ignition. Fully aware that he might have had a few too many to driver, Dan did what he thought was the right thing and decided to stay put, only to wind up Arrested for DUI.

How do we talk about “Drunk Driving” in a case like this, where there was very clearly no “driving,” at least as most people think about it? How is it that we wind up electing a judiciary that stretches the definition of “driving” to produce such a counter-intuitive (although highly profitable) result?

It’s stuff like this that we have to get past to even talk about “Drunk Driving.”

If we can just use a little tunnel vision, however, then we will see that a person is considered “guilty” of a DUI if they operate a vehicle with a Bodily Alcohol Content (BAC) of .08 or above, or if they operate a vehicle while “visibly impaired.”

When all is said and done, and at end of the day, this means a person is seriously at risk to be found guilty of a DUI if they are found to have been “operating” a motor vehicle after testing positive for drinking and having a BAC result of about a .07 or above.

Impaired Driving does not have a numerical limit in the written law. Thus, a person can, theoretically, be found guilty of driving while “visibly impaired” with a BAC as low as .05, or .06.

In the real world, most (but certainly not all) DUI cases do NOT present issues about “driving.” Most DUI cases begin with a person being pulled over, leaving no question about who was driving the vehicle. Also, in the “real world,” and for some curious reason, most people do not get a DUI in the city or township in which they live. Go figure….

This means, then, that at the heart of the garden variety DUI case, the real issue is whether the person was driving while over the limit. This is actually a fairly simple inquiry. The problem lies in the fact that the “system,” however one wants to define that, imposes a million little rules on things, and makes something complex out of something apparently simple.

In the final analysis, then, we cannot really escape having to argue about and define things like what it means to have been “operating” the motor vehicle, and determining what a person’s BAC was at the time they were actually “operating” it. This is the world of the DUI Lawyer.

By contrast, from a Judge’s point of view, the bottom line question is also the foremost inquiry: Was the person driving, and, if so, were they over the limit, or otherwise impaired by alcohol? And there is no lack of incentive for a Judge to side with things like the extended or expanded definition of “operating” a vehicle that we discussed earlier. DUI cases are real moneymakers for municipalities. On top of everything else, almost every DUI case generates substantial revenue for the Court that handles it. We’ll save that discussion for another day, because it introduces a whole new meaning to any discussion of a “bottom line.”

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