Major Driving Offenses

The privilege to drive is one of the most important privileges that we have. Whether driving to work, school, church, or the park, the freedom of mobility that a driver's license gives us is an important part of our everyday lives. Occasionally, though, mistakes, bad decisions, and accidents may result in restrictions on that freedom. Major Driving Offenses can result in the loss of your driving privileges and even jail time.

Many people can deal with minor driving offenses without hiring an attorney. Major driving offenses, though, are serious. Driving while your license is revoked or suspended may result in a loss of driving priviliges for years, and even could involve jail time. This would have a sever impact on your work and family life. Driving Under the Influence / Driving While Intoxicated arrests are very serious, and the government is treating the defendants in these crimes more harshly every year. Meanwhile, lawmakers are reducing the Blood Alcohol Level limits and increasing sentences. Simply refusing to be tested for BAL concentration could result in you losing driving priviliges or being charged with an additional crime!

Both your freedom to drive and your personal freedom from jail are threatened by convictions for Major Driving Offenses. At Johnson Law Group, we know how to mount a successful defense to driving offenses. Rather than having your driving privileges taken away completely, we can negotiate plea arrangements that simply restrict your driving habits. We can challenge the traffic stop that initiated your charge. We can bring in more evidence in your defense.

I only had one drink...I can't be guilty of drunk driving (DUI, DWI or OUI), right?

Wrong.

Usually, there are two ways you can be found guilty of drunk driving: (1) if you blood alcohol content (BAC) is above a limit set by law, or (2) simply driving under the influence of alcohol. Under the first definition, a jury musbe be convinced beyond a reasonable doubt that the person's Blood Alcohol Content was beyond that legal limit. The legal limit is .08 percent in most states. So, if the government proves that your Blood Alcohol Content was higher than .08 % at the time of the stop, you can be found guilty, regardless of the amount you actually drank.

The second definition, however, does not refer to any one Blood Alcohol Content level. Under this definition, it is the driving behavior of the person that is important. If the driving is impaired by the driver's ingestion of alcohol, the driver can be convicted. Rather than present evidence of Blood Alcohol Content to a jury, the government usually gives testimony about the defendant's driving and anything they know about the driver's consumption of alcohol. The government will usually call a police officer to describe the driving at issue that led the cop to pull over the defendant, and what happend when the defendant was asked to perform field sobriety tests. These tests usually involve walking a straight line, finger to nose or the leg lift. The driver's consumption of alcohol is usually introduced, if the state has any evidence of it. The jury then must conclude if the government has met its burden of proving beyond a reasonable doubt that the defendant's driving was impaired by alcohol consumption. A susceptible person may exhibit impaired driving after one drink and therefore be convicted of drunk driving.

Read the BAC Chart Below
NOTE! The chart below is ONLY to be used as an overall guideline for estimating BAC tests. The estimated BAC levels may not be accurate for any one set of circumstances. A qualified expert should be consulted for any many situations. To estimate the percent of alcohol in the blood by the number of drinks and body weight can be done by counting your drinks (1 drink = 1 oz. of 100-proof liquor, one 5 oz. glass of wine or one 12-oz bottle or can of beer).

* Take the number below and subtract from it the percentage of alcohol metabolized during the time elapsed since your first drink. This figure is .015% every hour. (For Example: 180 pound man -- Eight drinks in four hrs / .167% minus (.015x4) = .107 %

It is important to remember that BAC is impacted by many things. Your body's fat index, medecine you may be taking, the content of and time since your last meal, your personal metabilism, and any number of medical conditions will all impact your BAC and its effect on your driving. Your body will use up about 0.5 oz. of alcohol in one hour. Drinking strong coffee does NOT increase this rate. The quicker you drink, the higher your BAC level will be and it only goes down gradually. The above chart above is ONLY intended to be a guideline.

Standardized Field Sobriety Testing
The Standardized Field Sobriety Test (SFST) is a group of 3 tests given and examined in a particular manner to show acceptable indications of impairment and GIVE probably cause to arrest for diving under the influence.

The three parts of the SFST are:

• The Horizontal Gaze Nystagmus (HGN)
• The Walk and Turn
• The One-Leg Stand

These tests are systematically given and evaluated in accordance with particular responses of the defendant.

HGN Testing (Horizontal Gaze Nystagmus)
Horizontal gaze nystagmus is a condition where the eyeball moves erratically ("jerks") as it moves its gaze side-to-side. Usually, nystagmus happens when the eye moves around at the edge of the peripheral vision. However, when under the influence of alcoholo or drugs, nystagmus happens a lot more and without moving your eye all the way to the periphery. When under the influence of drugs and alcohol, a person has difficulty tracking objects smoothly with their eyes. To test for HGN, an officer watches your eyes try to follow a slowly moving object (usually a pen or small light) travel horizontally in front of your face. The officer looks for 3 indications of impairment for each eye:

* Not following the moving object smoothly;
* Distinct jerking when the eye is all of the way in the corners;
* When the jerking happens when the eyes are only forty five degrees from the center.

Divided Attention Testing
Two divided attention tests that can be performed easily by a sober individual are the walk-and-turn test and one-leg stand The suspect must listen to directions given by police officers and then do what they are told while performing simple physical actions. People impaired by alcohol and drugs have problems completing tasts that divide their attention between mental and physical activities.

Walk and Turn
In this test, the subject must take nine steps, heel-to-toe, along a straight line. Then, the driver has to rotate on one foot and return in the same way in the opposite direction. The officer would be watching for seven indicators of impairment:

* Losing balance while the officer gives directions;
* Begining to walk before officer finishes giving directions;
* Stopping during the walk in order to regain balance;
* Not walking heal-to-toe;
* Using arms to for balance;
* Losing balance while making the turn;
* Taking incorrect number of steps (more or less than nine steps);

One Leg Stand
In this test, the driver is directed to stand with one foot about 6 inches off of the ground and count out loud by thousands, until told to put the foot down. The officer times the suspect for thirty seconds and watches for 4 signs of impairment:

* Swaying while balancing;
* Using arms to balance;
* Hopping to keep balance;
* Putting foot down to maintain balance.

Alternative Testing Methods
Occasionally, an officer will come across a disabled driver who is unable to perform the SFST even if sober. In those cases, other tests are administered, such as:

* Counting out loud;
* Reciting the alphabet;
* Finger dexterity test (finger to nose);

If your criminal defense attorney files the proper motions, the three testes above can be kept from being introduced at trial.

These tests are VOLUNTARY!
"Never attempt ANY 'field sobriety tests."

The tests are "designed to fail."

You may have your license suspended simply for refusing to participate in the tests, but this is almost always better than a conviction for DUI.

A driver's alleged failing of a field evaluation can usually provide the probable cause a cop needs in order to arrest a person for drunk driving and will also be introduced as evidence at trial. It is, therefore, extremely important that your criminal defense lawyer be as educated about these tests as the police in order to effectively defend you.

Your criminal defense lawyer should:

* Challenge the subjective nature of the tests;
* Question the accuracy of the principles behind the tests;
* Probe the accuracy of the administration of the tests;
* Examine the credibility of the officer who requested the tests;
* Challenge all circumstances connected with the tests;

There are valid factual and legal issues involved in any administration of a field sobriety test. Your attorney should address and challenge all of these issues.

Roadside Alcohol Screening Tests
Police officers may use a portable breath testing device (PBT) to determine if a motorist is under the influence of alcohol. These devices are BANNED in some states, so their results cannot be used against you as evidence in court. Other states have ruled that PBT results can only be admitted at a pre-trial hearing to question whether there was probable cause for the arrest.

One way to attack the validity of these devices is to challenge their calibration and use. Police officers do not always regularly check calibration of the devices, which can yield inaccurate results. These sensitive devices also have detailed usage instructions from the manufacturer that are sometimes ignored. A good criminal defense lawyer will investigate all of these issues.

Do Not Submit to Any Tests!

The Program to Identify Drug Use: DEC
Drug Evaluation and Classification officers generally are not the ones that make the initial arrest. Rather, they are usually called in after a driver fails a field test or shows signs of impairment. DEC officers will usually give a Miranda warning to the driver and then evaluate the driver's usage. If you are ever asked to perform these tests, you need too simply SAY NO!

The DEC officer's job is to find out:

• If the driver is impaired by something;
• and if so, whether it is from drugs rather than alcohol,
• and if it is from drugs, what visible evidence of impairment would tell him the type or category of drug that was used?

The twelve Parts of the DEC process include:

• A BAC test to determine an estimated Blood Alcohol Content level;

• talking to the arresting officer, to find out why he or she made the arrest;

• A preliminary examination, which asks the driver if he has any injuries or physical/mental conditions that would look like drug use;

• Eye examination, including gaze nystagmus tests (both horizontal and vertical);

• The above-mentioned divided attention tests, including walk and turn, one-leg stand, finger to nose and a balance test;

• Vital signs including pulse rate, temperature, and blood pressure.

• Examination of the driver's pupils and how they react to light, as well as any obvious signs of ingestion of drugs by mouth or nose;

• Checking the suspects muscle tone: Some drugs will cause muscles to be either rigid or flaccid. DEC officer will check the bicep to the wrist.

• Evidence injection sites, (needle marks or tracks) on the arms, neck, legs;

• Administering the Miranda Warning and questioning the suspect about drugs and drug use suspected.

• Summarizing the DEC officer's opinions, filling out reports, and documenting observations.

• A scientific examination to provied admissible toxocological evidence to back up the officer's conclusions.
DEC Protocol
The protocol instructs officers to look not only for either illegal contraband or controlled substances but to watch for over-the-counter medications that the driver has or may have taken which may have caused or contributed to the impairment. Some allergy and cold medicines are particularly unsafe for drivers. These include Vicks Nyquil, Benadryl, Contac Severe Cold Formula, Allerdryl, Trifed, Phenergan, Tylenol PM, Pseudoephedrine, and others.

Have you been charged with a serious driving offense in Michigan?

Contact us at Johnson Law Group. We will put our aggressive and experienced attorneys to work for you.

We Fight to Win!