By Roberta M. Gubbins
Legal News
Gone Wired Café in Lansing was the place on Oct. 8 to learn the basics of the new ‘Superdrunk’ revision to the drunk driving statute.
More than 25 defense lawyers and prosecutors ate breakfast and listened to attorney Mike Nichols explain the new developments in the statutes and in metrology, a concept that includes determining uncertainty in measurement.
The event was sponored by the Ingham County Bar Association Criminal Law Section Meeting.
“The relevant statutes include the amendments to the Sobriety Court Act, the Secretary of State ‘driver license law’ (MCL 257.303, 304, 319) and the breath interlock device provisions,” said Nichols opening his discussion.
“Superdrunk is not the only big change that is in place. A big change is the Sobriety Court Act and how that is going to impact resolving drunk driving cases, especially second offenses.”
The change to the drunk driving statute (MCL 257.625 (1)(c) is a new law.
It creates new penalties for .17 grams ethanol per 210 liters of breath/100 milliliters of blood or 67 liters of urine, which include:
• Upon conviction, the maximum penalty is a jail sentence of 180 daysA fine of $200 to $700.
• A suspended license for one year, with the possibility of a restricted license after 45 days. (MCL 257.303, 304 and 319).
The statute provides that the Secretary of State shall issue a restricted license if they get a certification from a Sobriety Court judge showing that individuals are in a sobriety court program and have an Interlock on the automobile they drive. “It doesn’t say whether the judge has to give you that license,” he said. “I think it will be incumbent on us, defense attorneys, to be sure the certification is issued.”
• There is mandatory alcohol rehabilitation.
• A Breath Alcohol Ignition Interlock Device (BAIID)is required if a restricted license is granted.
• The BAIID stays in place until the defendants show the Secretary of State that they have completed sobriety court successfully and served the minimum period for the sanction.
Nichols cautioned that lawyers should remember the Home Rule Cities Act, which means that cities like East Lansing have charters stating they can’t prosecute a super drunk charge because of the 180 day provision.
They can only prosecute crimes with sentences up to 93 days.
The Sobriety Court Act (MCL 600.1084) provides for an Interlock pilot project starting January 1, 2011 to run for three years.
It puts requirements on the Sobriety court to document the success or failure of the Interlock device.
The courts must track the impact on public safety.
The benefits to the participant in the Interlock pilot project are 1) a restricted license and 2) driver responsibility fees are held in abeyance.
“Metrology is the science of measurement,” said Nichols, moving on to the scientific world. “A recent Washington case held that all BAC (Blood Alcohol Content) measurements represent a range of value, not an absolute value.”
The position of the state of Michigan is that, while at present, the error range is not reported, in 2011 at the next inspection an error range could be calculated.
In answer to questions, Nichols noted there is a provision that allows a person to get in a sobriety court program at another district court if there is none in his district.
In Ingham County, 55th Sobriety Court will accept transfers as long as they can physically get to court while 54A will not.
Asked about the timing of the new provisions, it was agreed that the date of the arrest is the control date.
There is a provision for indigency in the statute. If defendants are indigent defined as less than 150% of the official poverty line, installation fee of the BAIID is waived and the daily fee reduced to $2.00.
Nichols, of the Nichols Law Firm, specializes in drunk driving defense.
He is the author of the “Michigan OWI Handbook,” published by Thomsen West.
The 2010 update, which includes “important new information for lawyers, including changes to the law and on new advancements in our attacks on the lack of good science in the Michigan State Police testing” is now on sale.
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