Police Officers look for several clues when investigating someone for drunk driving, or OWI. Common visual cues include bloodshot eyes, the presence of alcohol containers in the vehicle, failure of the individual to produce documents such as their license, proof of insurance, and registration, or fumbling with their wallet or purse. Auditory cues include slurred speech, any admission of drinking, and inconsistencies in the responses they give. For example, if someone says they were at one place and then contradicts himself later by saying they were at another, that is a red flag to a Police Officer.

Field Sobriety Tests

During a traffic stop, Officers will generally have you perform three field sobriety tests, generally referred to as divided attention tasks. The goal of these is to ascertain your ability to perform two different functions at the same time.

The first test they generally administer is the Horizontal Gaze Nystagmus Test. The Police Officer will take an object such as a pen or a pen light and ask you to follow it as they move it in front of your eyes or face. The thinking is that when they perform this test, the Officer should be able to see nystagmus, or jerking of the cornea, if you are intoxicated. It should be noted, however, that while Michigan has a Court of Appeals Case that allows these tests to be permissible in Court on the issue of the presence of alcohol, they are not permissible on the issue of proving intoxication by alcohol.

The second test is the Walk-And-Turn Test. With this test, the Officer will try to determine whether you can follow the instructions given with the physical dexterity needed to carry them out properly. First, the Officer will ask you to put your right foot in front of your left foot with your hands at your side, then hold the position until instructed to move. Next, they will tell you to move forward and take nine heel-to-toe stops on an imaginary line, unless an actual line is present. Once you take your ninth step, you are supposed to take a series of small steps and pivot to return to where you started.

After this, they will typically have you perform a third test, the One-Leg Stand. This test involves putting your feet together and hands down at your side. You will then raise a leg, whichever one you are comfortable with, about six inches off the ground. The Officer will then tell you to count to 30. With this test, the Officer looks for whether you put your foot down while counting, use your arms to keep balance, and whether you can keep your foot up for 30 seconds. If they observe any of these things, they will notate it as evidence that your ability to operate the vehicle is substantially influenced.

The Officer will continue to observe you while they conduct these tests, assessing whether you are performing the tasks to their subjective standard. They want to see whether you lose balance or step off the line, for example, even though this can easily happen if you are not intoxicated.

If you “fail” the tests according to their subjective standard, they will then finish the investigation off with a breath test, referred to as a PBT. Again, it's important to note here that the devices used to conduct these tests are generally not very accurate since they are calibrated only once every 30 days. In any case, the Officer will arrest you if your breath test result is 0.08 or more – and they may even arrest you for Operating While Visibly Impaired if your result is under 0.08.

So much depends on whether the Officer administers the Field Sobriety Tests and PBT correctly. Often, they do not administer the PBT correctly. They are supposed to confirm that you have not put anything in your mouth for at least 15 minutes, yet many Officers simply choose not to follow the procedure and often conduct the PBT after just five minutes. Fortunately, when this happens, I can get the PBT results thrown out during an Evidentiary Hearing.

Your Rights During an Investigation

Most people will submit to Field Sobriety Tests if they are asked to. However, I highly advise against this. Doing so does nothing to help your Case. What's more, if you "pass" the field sobriety tests and there are not a lot of other cues visible to the Officer, you may be able to file a Motion to Dismiss for lack of probable cause.

In addition, and perhaps most importantly, there is no law in Michigan requiring you to submit to a Field Sobriety Test. Often, what happens is that the test merely gives the Officer a dose of confirmation bias. Further, refusing the tests will make the Officer's decision to arrest much more difficult.

“Anything You Say Can and Will Be Used Against You”

Prior to being arrested, nothing is covered by your Miranda Rights. Miranda applies only once your custodial arrest occurs. Therefore, contrary to popular belief, everything you say up until you are handcuffed, CAN be used against you in a Court of Law.

This is especially important information when it comes to OWI Cases, because Miranda Rights don't really come into play in the way that most people would expect. They only protect you from making statements after you are arrested – and most incriminating statements made in OWI Cases are made before an arrest, or during the investigation. So, no matter where you are in the OWI timeline, it's best to only give information that is necessary and refrain from saying anything that you don't absolutely have to.

What Happens Next

Once arrested, the Officer will read you your Chemical Test Rights. In Michigan, the Officer can request you to take a Breath Test or a Blood Test. If you do proceed with the Data Master or the Blood Test as requested, you have a right to request having an independent Blood Test done at a facility of your choice, if it is reasonably near, and you have the funds to pay for it. Doing this can give a little time for your blood level to decline somewhat. It may also preoccupy the Officers and put you in a better position.

One thing you always must be wary of is that refusing a PBT is a Civil Infraction with a fee of $175 to $200 – but if you refuse a Chemical Test, you will also lose your license for a year under the Implied Consent Law. When signing for your driver's license at the Secretary of State, you agree to take a chemical test if a Police Officer requests it. This is the basis on which they suspend your license for one year in these situations.

Appealing A Suspension in Violation of Implied Consent Laws

You can appeal this matter to the Secretary of State if you file within 14 days of the date of your arrest. Unfortunately, the issue is not whether you are Guilty of Operating While Intoxicated beyond a reasonable doubt. So, the Secretary of State will side with the Officers because they have a minimal burden of proof called Preponderance.

However, the Secretary of State will typically grant your Appeal if the Officer does not appear in Court for it. For this reason alone, it is worth filing an Appeal. If your Appeal is denied, Michigan allows you to file a hardship Appeal to the Circuit Court in the County where the arrest occurred. This would include filing a Complaint against the Secretary of State and indicating hardship due to work or other circumstances that require you to operate a vehicle.

For the Judge to consider these requests, they require what is called a comprehensive Substance Abuse Evaluation, and potentially a Drug Screen. Approving these requests is entirely at the Judge's discretion, though with the right counsel, these licenses are granted most of the time.

Bond And Bail

Procedurally, the Police generally release those arrested for OWI on a bond, typically for $200 to $1000. Then, most OWI Cases in Michigan are done by Appearance Ticket, meaning you will have 10 to 14 days to contact the Court or an Attorney to arrange the Arraignment.

I typically advise people to contact an Attorney, have them contact the Court, and file an Appearance as soon as possible for this. Doing so ensures that the Court knows the Client is represented and that the Attorney will receive notice of all your Court Hearings, notifying you as soon as there is an Arraignment Date from the Court. This is crucial because if you miss a Court Date, a Bench Warrant for your arrest will be issued and you can be held in contempt of Court. I do everything possible to ensure this does not happen to my clients.

So, first things first, it is critical to contact an Attorney immediately if arrested for OWI. Secondly, I advise my clients to immediately cease drinking alcohol or consuming drugs if charged with OWI – because staying sober during your Case will dramatically help to make a better impression on the Judge and the Probation Officer.

I additionally advise clients with a prior OWI Conviction or Chemical Test resulting .15 or more to attend Alcoholics Anonymous meetings twice a week and retain a Substance Abuse Specialist as soon as possible. I advise them to thoroughly document their participation in the Alcoholics Anonymous meetings. This demonstrates they understand the severity of the crime and expresses a desire to take responsibility for it.

Based on my experience, those who have taken this proactive approach have fewer problems with Probation Violations.

For more information on What to Expect: From OWI Investigation To Arrest, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (313) 282-7007 today.