This Is Practical Advice From Lawyers, Not To Be Construed As Legal Advice From Lawyers.

What should I not do if I get pulled over after drinking?

Don’t be a jerk.
Be polite. Simple advice but comply with the officer’s requests. More than likely you’ll be asked for your license and registration. Keep your hands visible. Don’t guess at why the officer pulled you over in the first place. It’s common (and they’re trained) to ask you “Do you know why I pulled you over?” You don’t. 

Don’t say I’ve had “a couple” of drinks.
This may be the most common answer in an exchange that goes something like this:

Officer: Have you had anything to drink tonight?

You: Yes

Officer: How much have you had to drink?

You:  A couple of beers/seltzers/drinks/etc.

There’s no obligation to provide evidence against yourself. Usually if the officer is asking, it’s because he “smells the odor of alcohol” or it’s late night. Unless you’re sure you haven’t been drinking (you’d know), don’t provide the number of drinks; definitely don’t guess at it; and saying “a couple” won’t improve anything. Respectfully decline.

Don’t do the field sobriety tests.
If the officer asks you to step out of the car, do that. The police have the right to ask and you should comply with their request. But once you’re out of the car, there’s zero obligation (and no penalty for) declining to participate in roadside field sobriety tests. The “standardized” field sobriety tests (SFSTs) include the horizontal gaze nystagmus (think: stimulus moving across your eyes); one leg stand (self explanatory); and the walk and turn (9 heel to toe steps one way and back). Truthfully some of these coordination tests can be difficult in perfect lighting and on a flat surface. As you might imagine, that’s vastly different than the conditions you’d be facing on the side of the road as cars whiz by and your adrenaline is pumping.  If asked to do these tests, respectfully decline. No reason to help the police compile evidence against you.

Don’t do the preliminary breath test (PBT).
Putting aside whether the officer has enough probable cause (the legal standard for a “search” which a PBT is) to make the request, the penalty for declining is a civil infraction, i.e., a ticket like one you’d get for speeding along with a fine.  While PBTs are generally not admissible in court, they alone can be the basis for the officer to arrest you. MCL 257.625a. If you think to yourself: “I just absolutely nailed those SFSTs and I’m about to get out of here.” Hold right there. First, why did you do the SFSTs in the first place. Second, even if that’s true, a PBT result of 0.08 or higher and you’re not going anywhere other than the backseat of the police car with cuffs on. Respectfully decline the PBT. No reason to help the police build the criminal case against you.

(Probably) Do the requested breath or blood test.
This is different than the PBT. Should the officer choose to arrest you, despite all of the legally savvy decisions you’ve made to this point, you’ll be asked to consent to a breath test or a blood draw (urine can also be requested but that’s not typical). Before this request—and this is how you’ll know this is the one test you’ll probably want to consent to—the officer will read your “chemical test rights.” Michigan is an implied-consent state. That means you’ve already given consent (said “yes”) to the officer’s request for a breath or blood test simply by being on the road. So if  you’re read your “chemical test rights” and you refuse (say “no”) there’s an automatic license sanction: Your driver license is suspended for a full year based on refusing to consent (say “yes”) to the breath test or blood draw. This is all stuff that is covered in the “chemical test rights.” The reason you’d probably want to agree to this test is because the one-year license suspension is much longer and more punitive than most license sanctions that follow a drunk driving conviction. On balance, and practically speaking, for. most first-time drunk drivers, this one-year implied-consent license suspension is worse than anything else that may come as a result of a drunk driving conviction. Let your lawyer  worry about whether the test results are admissible against you later.

Do find and hire a good lawyer. Do it right away.
You’re typically released from custody (think: jail) not long after a drunk driving arrest; typically the next morning. But the drunk driving charges don’t always immediately follow. This is especially true if the police choose to ask for a blood draw—which is much more typical request these days. Those results likely won’t come back for a few weeks, and most prosecutors want to make sure they know what your blood alcohol level is before charging you with anything.

Even though the state may delay things, you shouldn’t. Reach out and find a lawyer to help right away. Why? Because there may be evidence out there that is time sensitive and won’t be available if you wait until you’re charged. For example, if you think that some surveillance footage from a store might be helpful, that is usually gone within days or a week. Your lawyer may be able to identify evidence out there right away and send preservation requests to save the stuff that’s out there which may be favorable to your defense. 

Do meet your lawyer and ask questions.
It’s important that you hire a competent lawyer, i.e. someone who knows what they’re doing. How? Start by meeting and talking to a lawyer before you hire them. Talk to more than one lawyer. Drunk driving can impact not only your driver license but have consequences on immigration status and your job (in particular, if you hold professional licenses). 

If you’ve been charged with drunk driving (OWI as Michigan calls it), feel free to contact our office at (616) 965-2621 or contact@zamzowfabian.com to set up a time to meet and discuss your case. We never charge for this initial meeting (lawyer word: consultation). And we encourage you to ask questions.

Expunging a drunk driving conviction finally becomes a reality in Michigan
Until this year, people with criminal convictions had the ability to expunge (or “set aside”) most misdemeanors and felonies, but never a drunk driving conviction. That all changed in February 2022. Because the expungement law changed. See MCL 780.621 et seq. (Am. 2021, Act 78, Eff. Feb. 19, 2022).

For the first time, many people became eligible to expunge (or “set aside”) their first operating while intoxicated (OWI) conviction. Assuming, of course, they could meet the eligibility criteria.

Can I expunge my drunk driving?
Eligibility can be thought about in two parts: (1) legal eligibility, and (2) the much more vague, “worthiness” (my own word) to have the conviction set aside. Let me explain.

Am I legally eligible to expunge my drunk driving conviction?
Legal eligibility is pretty straightforward. By law, you can only apply to set aside your first drunk driving conviction. Only your first. And only a misdemeanor. If the first OWI led to some serious injuries or, worse, death, then it’s most likely a felony and ineligible. But otherwise all first misdemeanor OWIs are eligible. This includes operating while visibly impaired, or operating with a high blood alcohol content (>.17 BAC), or operating under the influence of drugs.

The next step is to determine if enough time has passed since this conviction. It must be at least 5 years. And to be clear, that’s not 5 years from when you were convicted, i.e., you pled guilty or a jury found you guilty. Rather, it is 5 years from the true conclusion of your case. For most, that will be the day you were released (or “discharged”) from probation. If it’s 5 years after that date, and you were not convicted of anything else between that date and today, you are most likely[1] legally eligible to expunge your drunk driving connection. 

Am I “worthy” to expunge my drunk driving conviction?
Beyond legal eligibility, the courts consider, in all cases, “the circumstances and behavior” of the person applying and whether expunging (or “setting aside”) the conviction is “consistent with the public welfare.” See MCL 780.621d. Put differently: The courts are essentially deciding on an equitable basis whether the person is a fit candidate to have the conviction expunged. Did you turn your life around after the conviction? What changes did you make as a result? Did you stay out of trouble? Did you learn from it? And while not a requirement, most courts want to know: Why are you looking to expunge the conviction? These questions and others are the type the courts like to have an answer to before they decide whether you’re “worthy” to expunge any conviction.

But drunk driving requires even more to be “worthy.”
Unlike expunging other convictions, drunk driving comes with some additional criteria the courts may need address beyond just your “behavior” and the “public welfare.” Specifically, the courts may consider whether an applicant has “benefited from rehabilitative or educational programs” or “whether such steps were taken by the petitioner before sentencing for the first violation operating while intoxicated offense conviction.” MCL 780.621c. The court is “not constrained by the record made at sentencing … and may deny the petition if it is not convinced that the [applicant] has either availed himself … or benefited from rehabilitative or educational programming he or she has completed.” Id. In other words, not only is the court to consider whether your “behavior and circumstances” have changed and that it’s in the “pubic welfare” but there’s also this additional peek into whether you participated and benefited from relevant programming. It appears harder, at least on paper, to expunge or set aside a drunk driving conviction in Michigan than any other criminal conviction.

Bottom line: Eligible Michiganders can—for the very first time—expunge (or “set aside”) their first OWI (drunk driving) conviction.
As with all things law-related, make sure you consult with a lawyer to ensure you are, in fact, eligible to expunge your OWI (drunk driving) conviction.

Feel free to contact our office at (616) 965-2621 or contact@zamzowfabian.com if you believe you might be eligible and to set up a free consultation to discuss your expungement options.

[1] As with all things law-related, you should consult with a lawyer to confirm your eligibility. 

RELIEF FROM MICHIGAN’S SEX OFFENDER REGISTRY 

Being registered as a sex offender was not considered punishment.
For years Michigan’s sex offender registry act (SORA) was considered by courts not to impose a “punishment.” In other words, if your criminal conviction happened to also require registration under SORA, that consequence didn’t really “punish” you; it was just a “civil remedy” imposed by the state. That view has begun to change—significantly and rapidly in Michigan.

But the 2011 version of SORA found to be punishment, for some.
Just last year, our Supreme Court decided Betts[1] which found that retroactive application of the 2011 version of SORA was, in fact, punishment. The Court found that some of the 2011 changes to SORA violated the Constitutions’ prohibitions against cruel and/or unusual punishment[2]. This was good news for some. In particular, those individuals who were registered before the 2011 changes. Betts offered some relief[3].

And 2021 version of SORA is now considered punishment for “non-sex offenses.”
Most recently, in June 2022, our Court of Appeals in Lymon[4] concluded that even the newest, 2021 version of SORA (passed largely in response to the changing legal landscape), was punishment for individuals who were registered on the basis of a “non-sex offense” conviction. What does that mean? 

To start, Michigan’s SORA makes no distinction between what happened during the commission of the crime or the individual risk of the offender. Instead, registration is based exclusively on the underlying conviction itself. MCL 28.721a (requiring a person who has committed “an offense covered by [SORA]” to register). Mr. Lymon, for example, was convicted of (among other things) the unlawful imprisonment of two minors. But the two “minors” were his own children who happened to be present while Mr. Lymon confronted his wife about extramarital affairs at gunpoint. There was absolutely no sexual component to the crime. Yet unlawful imprisonment of a minor was a listed offense under SORA, and so he was registered as a sex offender. The same is true for many other individuals in Michigan who are forced to register as “sex offenders” based entirely on the fact that their “offense [was] covered by [SORA].” That ends now.

Relief from SORA is available for “non-sex offense” registrants (by application).
Lymon is an important development for anyone who finds themself registered today under SORA on the basis of a non-sex offense conviction. Because the law now says that sex offender registration is cruel or unusual when applied to individuals convicted of crimes that lack a sexual component and are not sexual in nature[5]. As a result, any person who finds themself registered only the basis of their “non-sex offense”conviction can (and should) now petition the court where the conviction occurred for immediate removal from the registry[6].

Michigan’s ACLU continues its federal litigation against SORA on behalf of “non-sex offense” registrants, but also many others.
The recent developments in the way Michigan courts have begun to treat SORA registration (as punishment) is largely based on a series of federal suits brought by the ACLU on behalf of unnamed registrants (“Does”). Starting in Does I (the first round of litigation), in 2016 a federal court in the eastern district of Michigan found portions of Michigan’s SORA unconstitutional. Does II followed. Does III is now being litigated on behalf of several subclasses of Does. One of those subclasses includes: a ‘“non-sex-offense subclass,” defined as members of the primary class who are or will be subject to registration for an offense without a sexual component…”’ Sound familiar? Without addressing how Lymon impacts Does III, there are still a number of other subclasses for which the ACLU seeks relief.

For example, individuals who were “retroactively required to register for life as a result of amendments to SORA.” There are others. You can read all of the ACLU’s filings and get updates here: https://www.aclumich.org/en/what-you-need-know-about-does-iii (accessed July 7, 2022). You can also read about Michigan’s SORA history as well as that of the Does litigation in the ACLU’s verified compliant. Id. (found at previous link).

Bottom line: If you’ve been convicted of a “non-sex offense” but are registered under SORA today, you should apply to be removed from the registry immediately.
As with all things law-related, make sure you consult with a lawyer to ensure you are, in fact, eligible based on the Lymon decision. But its impact appears to be clear for those individuals who are registered only because their offense was listed under SORA even though there was no sexual component to the crime.

Feel free to contact our office at (616) 965-2621 or contact@zamzowfabian.com if you believe you may be entitled to relief and to set up a free consultation.

[1] People v Betts, 507 Mich 527  (2021).

[2] Unlike the US Constitution which prohibits “cruel and unusual” punishment, Michigan’s Constitution prohibits “cruel or unusual” punishment. For that reason, Michigan’s Constitution actually provides broader protection than its federal counterpart. People v Bullock, 440 Mich. 15, 30 (1992) .

[3] The Court specifically stated, however, that its holding did not affect the application of the 2011 amendments to SORA to people registered after it went into affect (they call it “prospective application.”) Betts at 563.

[4] People v Lymon, __ Mich App ___ (No. 327355) 2022 WL 2182165 issued June 16, 2022.

[5] Lymon, ___ Mich App at ___, slip op at pp 18-22.

[6] While the unanimous opinion of Michigan’s Court of Appeals in Lymon may be appealed, it is this author’s opinion that the current Supreme Court in Michigan is unlikely to take up the issue or decide any differently.

Zamzow Fabian PLLC is a law firm, this is meant as general information, contact us directly before relying on the broad statements made herein. That is, the information contained herein must not be construed as legal advice. Every business and situation is different. To receive legal advice that may be relied upon, you must consult directly with your legal counsel.

Section 14. Penalty: “Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.”

Section 1. Interpretation. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.

Section 2. Order. [A]ll individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. [A]ll public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.

However, abridged from section 2 includes exemptions.

Individuals may leave their homes if necessary to: (section 7(a))
(1) undertake outdoor recreational activities;
(2) critical infrastructure activities (healthcare, public health, necessary government functions, work on behalf of needy persons, work on behalf of disabled persons, and work on behalf of persons who are suffering from COVID-19, and persons who are designated as critical infrastructure by their employers (may be oral until March 31, 2020 at 11:59 pm);
(3) maintain minimum basic operations (as designated by employer) i.e. maintain the value of inventory and equipment, care for animals, ensure security, process transactions like payroll and benefits, and facilitate other works to work remotely;
(4) those government operations (as also listed in #2 above, section 6 of EO);
(5) to perform necessary health and safety functions;
(6) obtain supplies (use delivery to the maximum extent possible);
(7) care for a family member or a family member’s pet (even in another household);
(8) care for minors, dependents, elderly persons, and persons with disabilities;
(9) to visit persons in health care facilities;
(10) to attend court proceedings of essential or emergency purposes (court ordered);
(11) to work or volunteer as described in #2 above.
(12) travel between your own homes and residences, and as required by court order or law enforcement.

Full Text of EO 2020-21: https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626–,00.html

Michigan’s Govenor Gretchen Whitmer ordered the closure of all physical business locations, unless exempt. However, many of the exemptions do not apply if they otherwise would (i.e. the order does apply) if the work can be reasonably done remotely. Speak with an attorney before keeping your business open to avoid (a) a criminal penalty, (b) causing unnecessary exposure through close person-to-person contact, and (c) public backlash for noncompliance.

What happens if I violate the order? A 90-day misdemeanor, see MCR 10.33 and MCR 30.405. While there is some ambiguity in the order, it is in the interest of you and your neighbors to obey the spirit of the order.

What does the order say? In essence, Executive Order 2020-21, says do what we can to suppress the spread of COVID-19. It orders individuals to shelter in their place of residence beginning March 24, 2020 at 12:01 am, continuing through April 13, 2020 at 11:59 pm unless exempt.

Relevant to a law firm, court proceedings are permissible, however other lawyer activities are not.

Permissible activities. You may leave your residence for medical care or another other essential service, or care for family members. You can obtain necessary supplies, food, medicine, cleaning products, fuel, etc. You can undertake outdoor activities, and you can work as a critical infrastructure worker. People must abide by physical distancing (more often called “social distancing”) of six feet or more. When maximally possible: “[i]ndividuals must secure such services or supplies via delivery…”

Critical infrastructure workers “are those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here).” This includes some workers in each of the following sectors: Health care and public health; Law enforcement, public safety, and first responders; Food and agriculture; Energy; Water and wastewater; Transportation and logistics; Public works; Communications and information technology, including news media; Other community-based government operations and essential functions; Critical manufacturing; Hazardous materials; Financial services; Chemical supply chains and safety; and Defense industrial base.

But it is the spirit of the order that is most important to protect others and yourself.

What about my employees? If you have specific questions about your particular employment situation, you may contact Zamzow Fabian PLLC for more information. Including naming certain individuals to act in certain essential functions.