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What Happens After I'm Arrested for Drunk Driving?

In Michigan, it is illegal to operate a motor vehicle under the influence of alcohol, a controlled substance, or a combination of both, when the drugs and/or alcohol is at or above a certain BAC level in your body, they will substantially affect your ability to operate a motor vehicle; and they’ll very likely leave you visibly impaired.

In short, if you operate a motor vehicle while under the influence of alcohol or drugs, you can be arrested. If this happens, it’s imperative that you know your rights. Below, we explore what legal rights you have in the wake of an arrest for DUI or OWI.

Miranda Rights

We are often told by our clients that their Miranda rights were not read to them at the time of their arrest. Police officers do not have to read Miranda rights to you when you are arrested for drunk driving.

Sobriety Tests

You were likely questioned roadside; i.e., anything to drink? How much? Where are you coming from? The officer likely asked you to perform sobriety tasks. Officers perform these tests or tasks in many different ways, however, they often include the walk and turn, one leg stand, reciting the alphabet, counting backwards, and an eye test known as HGN.

The officer will also likely ask you to submit to a preliminary breath test (PBT). The PBT is used to establish probable cause to arrest you. A PBT refusal is a civil infraction, not a misdemeanor or felony, and you cannot be arrested in Michigan simply for not taking a PBT. Please note, you can still be arrested for drunk driving even if you didn’t take a PBT. The police officer will have to consider your sobriety tasks, your statements, their observations, and the totality of circumstances before they decide to arrest you. The PBT is only a tool for the police officer to establish probable cause.

Detained

If you were arrested, you were likely handcuffed, brought back to the police station, fingerprinted and had mug photographs taken. Your car was probably impounded as well – to avoid paying high storage fees, you should get your vehicle from the impound as soon as. During detainment, the officer may inventory search your vehicle before they impound it.

Chemical Test

You were likely read your chemical test rights and asked to submit to a chemical test, either a breath test or blood test. A urine test is an option, however, it’s rarely used.

Assuming you agree to submit to a chemical “breath” test, the police officer likely have you blow twice. If you agree to a blood test, then you will likely be taken to a hospital, where they will take two vials of blood. The blood tests are submitted to the Michigan State Police crime lab for analysis and the blood results can take several weeks, sometimes months, for the results. So, if you submit to a blood test, prepare to be patient, as it can take a while for the results and for formal charges.

Submitting to a requested chemical test will allow you to operate a motor vehicle after your arrest. The officer will confiscate and destroy your Michigan operator’s license, which is normal, and issue you a Temporary Permit, called a DI-177. The permit is your license to drive, so keep that with you while driving. And note, the permit is only valid if your license was not suspended, denied or revoked prior to the arrest.

Chemical Test Refusal

Should you refuse a chemical test the police officer requests? If you do, the police officer will seek a warrant for a blood draw. Again, the results can take several weeks or even months. Your license could be suspended for at least a year if you refuse to take a chemical test. You will be issued a different permit, called a DI-93. Again, this is your permit to drive; however, it is only valid if you were not suspended, denied or revoked prior to the arrest. A hearing must be scheduled within 14 days from the date you were issued the DI-93 refusal. The hearing is with the Secretary of State and is an attempt to keep your license. If you lose at the hearing, your license will be suspended, however, you may appeal to the Circuit Court for a restricted license.

Bond

If you sit in jail for several hours, it is likely because some police departments wait until your BAC is below .08. Other police departments release you once you don’t have any alcohol left in your system. If your BAC is unknown because you refused the chemical test, or because they drew your blood and are waiting on results, some departments will wait approximately 12 hours before they release you. Bail bonds vary, but most departments require a $100.00 bond to release you.

What if you cannot post bond?
If you cannot post the required bond to be released, then you will sit in jail until your arraignment. Likely the same day or the following morning, you will be arraigned. A lot of in-custody arraignments are via video. After the arraignment, if the judge does not give you a personal bond, you will remain in custody until your next court date.

If the police department is seeking a warrant, or they are waiting for your blood test results to come back, most police departments will not take bond from you. They will release you, and should notify you if the prosecutor issued a warrant for your arrest, or if your blood results are in. Other times you will receive a letter or a ticket in the mail, which will give you a court date or indicate that you have a warrant.

First Court Appearance

Your first appearance will be at the district court and will be your Arraignment. At the Arraignment, the magistrate or judge will tell you what you are being charged with, a not guilty plea will likely be entered, and the Court will address your bond. Although you may have already posted bond with the agency that arrested you, the Court can keep the bond amount the same, or it may increase your bond. The Court can also give you bond conditions. These vary between courts; however, they often include:

  • No drinking or use of drugs not properly prescribed to you
  • No violations of the law
  • No leaving the state of MI without the Court’s permission
  • Enforced drug and/or alcohol tests on specific (or random) days

After the Arraignment, you will be given a Pretrial date.

Pretrial

The Pretrial is the proceeding where the defendant and his/her attorney first meet with the prosecutor. The Defendant’s attorney may have already been in communication with the prosecutor discussing the evidence, videos, witnesses, police report, etc. During the pretrial, the prosecutor may have discovery to exchange, and this proceeding is an opportunity for the Defendant to take a plea. You could plea as charged, or maybe the prosecutor will amend or dismiss the charges after discussing the facts with your attorney. If you don’t want to plea to the charges, or additional discovery is needed by your attorney or the prosecutor, there may be another pretrial scheduled. It is not uncommon to have multiple pretrials.

Plea

Assuming there is a plea deal, you and your attorney will have to tell the judge what the plea is. For example, you may be charged with OWI, and your attorney gets the charge reduced to OWVI. Your attorney will have to tell the judge on the record, and you will have to give the judge a factual basis for the plea. Your attorney will coach you and assist you with the factual basis.

No Plea

If the prosecutor and your attorney do not resolve the case, or you do not want to accept any offers presented, the Court may order for a final jury pretrial. Most courts want you, your attorney, and the prosecutor to work it out. If, after the pretrial, or your final jury pretrial, there is no resolution, your next court date will be either a bench trial or a jury trial.

Bench Trial

There is NO jury. The judge is both the finder of fact and the ruler on matters of law and procedure. If a drunk driving case goes to trial, it is usually a jury trial.

Jury Trial

Jury trials are composed of members of the community who act as the finders of fact. The jury listens to all evidence presented during trial and they render a verdict. The judge’s roll is to handle questions of law and procedure during a jury trial. Jury trials can be time consuming and expensive.

Sentencing

This is the court proceeding that everyone fears. Having a local attorney who is familiar with the court you are in and the judges will really help prepare you for sentencing. Every court is different. Every judge is different. Some courts are not very strict on drunk driving, while others are known to lock everyone up. The penalties for drunk driving vary, depending on what offense you are convicted and sentenced for, as well as if you have any prior offenses. The judge can sentence you to jail, probation, a combination of jail and probation, fines and costs, community service, therapy and/or counseling, and drug and/or alcohol testing. The Secretary of State will sanction your driver’s license, which can include a suspension or restriction, vehicle immobilization, points to your driving record, and fees.

Post Sentencing

You will have a conviction on your record, and subsequent offenses will have more severe consequences than your first offense. If you receive a second conviction within seven years, your charge will be enhanced to a one-year misdemeanor. If you receive three convictions anytime in your life, your charge will again be enhanced, but now it will be a felony. Below is a brief overview of the law and penalties in Michigan.

Operating While Visibly Impaired (OWVI) “Impaired”

When your ability to operate a motor vehicle is visibly impaired due to alcohol, drugs or a combination of the two, you can be charged with OWVI. Penalties upon conviction will include up to $300 fines, and one or more of the following:

  • Jail time – up to 93 days
  • Community service – up to 360 hours
  • Driver's license restrictions – 90 days (180 days if impaired by a controlled substance)
  • Possible vehicle immobilization
  • 4 points added to your driving record
  • Driver Responsibility Fee – $500

Operating While Intoxicated (OWI)

When the alcohol or drugs in your body substantially affect your ability to operate a motor vehicle safely; or when your bodily alcohol content (BAC) is at or above 0.08, you can be charged with an OWI. Typically, this is determined through a chemical test. Penalties upon conviction will include between $100-$500 in fines, and one or more of the following:

  • Jail time – up to 93 days
  • Community service – up to 360 hours
  • Driver's license suspension – 30 days, followed by license restrictions for 150 days
  • Possible vehicle immobilization
  • Possible ignition interlock
  • 6 points added to your driving record
  • Driver Responsibility Fee – $1,000

Operating While Intoxicated with High BAC “Super Drunk”

When the alcohol level in your body is at or above 0.17, you can be charged as “super drunk.” This is typically determined through a chemical test, and penalties upon conviction will include one or more of the following:

  • Jail time – up to 180 days
  • Community service – up to 360 hours
  • Fines – up to $700 (minimum of $200)
  • Driver's license suspension – 1 year. If an ignition interlock device is installed on all vehicles you intend to operate, you’ll be eligible for restrictions after 45 days of suspension.
  • If you do not install an ignition interlock device, possible metal license plate confiscation.
  • Mandatory vehicle immobilization if the offense is subsequently convicted for operating a vehicle without a properly installed ignition interlock device.
  • 6 points added to your driving record
  • Driver Responsibility Fee – $1,000

Operating with Any Presence of a Schedule 1 Drug or Cocaine (OWPD)

If you show any level of drugs in your body, even if you don’t appear intoxicated or impaired, you can be charged with an OWPD. This can be determined through a chemical test. Penalties upon conviction include $100 to $500 in fines, and one or more of the following:

  • Jail time – up to 180 days
  • Community service – up to 360 hours
  • Driver's license suspension – 30 days, followed by license restrictions for 150 days
  • Possible vehicle immobilization
  • Possible ignition interlock
  • 6 points added to your driving record
  • Driver Responsibility Fee – $500

Under Age 21 Operating with Any Bodily Alcohol Content (Zero Tolerance)

When you are under 21 and your BAC is 0.02 to 0.07, or any presence of alcohol is in your body other than alcohol consumed at a generally recognized religious ceremony, you can be charged under the zero-tolerance policy. If you are under 21 and your BAC is at or above .08, you can be charged with OWI. Penalties upon conviction include:

  • Fines – up to $250 fine, or up to 360 hours of community service, or both.
  • Driver's license restriction – 30 days
  • 4 points are added to your driving record
  • Driver Responsibility Fee – $500

Penalties will be enhanced if any of the following are involved: Subsequent alcohol or drug-related offenses; Causing Death or Serious Injury if Operating While Intoxicated; Operating While Visibly Impaired; Operating with Any Presence of Drugs.

Our Birmingham DUI Attorneys Can Help You Fight Your Charges

If you or anyone you know was arrested, contact one of our experienced Birmingham OWI lawyers as soon as possible. Fraiberg & Pernie, PLLC can be contacted at (248) 450-0232.

We proudly serve residents in Birmingham, Oak Park, Oakland County and surrounding communities in Michigan.

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