Anyone that has spent time in Northern Michigan’s beautiful waterways knows that boating is a way of life around here.  Marinas often have multiyear waiting lists and the lines on a Saturday morning at a local boat launch on a warm summer day can seem to go on for days.  Many of these recreational boaters believe that the only thing more important than gas in the tank, is cool beverages in the cooler.  While Michigan’s laws related to the consumption of alcohol on our waterways may seem lax compared to the roadways (no open intoxicants rule on the water – even for the driver), knowing the rules may help prevent an unwanted boarding by law enforcement.

In 2015 the Michigan Legislature adopted legislation that brought the standards for Boating Under the Influence (BUI) in line with those in place on our roadways.  Impairment is presumed, therefore, for anyone registering a blood alcohol level at or above .08.  There is currently no ‘superdrunk BUI’ law in Michigan as there is on the roadways. A prior BUI may enhance a subsequent charge, i.e. BUI 2nd, and lead to enhanced punishment. Punishment is also enhanced if there is someone on board at the time of the BUI that is less than 16 years of age.

If you have been charged with a BUI in Northern Michigan you should know that the consequences are serious and your best bet to protect your rights is to contact an experienced BUI attorney as soon as possible.  The language in the BUI statute set out clear parameters and defenses based on whether or not you were in fact ‘operating’ the vessel. Let The Law Office of Mattias Johnson craft a defense strategy for you and do everything in our power to get your case dismissed.

Commonly, a client will call me or stop by my office following an encounter with law enforcement and immediately note that their rights have been violated because the officer did not read the person their Miranda Rights.  Popular culture has given many of us a false sense of what our Miranda rights are and when they are relevant.  I would like to take this opportunity to briefly explain what your Miranda rights are, when they are triggered, and their practical application to your case.

The Fifth amendment to the United States Constitution contains many protections for an alleged perpetrator.  Particularly relevant in the context of Miranda Rights is the protection against compelled self-incrimination.  Essentially what this means is that law enforcement cannot rely on forcing you to admit to help prove their case against you.  Miranda Rights get their name from a 1966 Supreme Court case, Miranda v Arizona, wherein the Court held that an admission elicited from a suspect not informed of his rights was inadmissible as evidence in a subsequent trial.   

Unlike in the movies where the suspected perpetrator is read his rights as he is slammed into the hood of the police cruiser,  Miranda Rights are not typically triggered at the time of arrest.   Miranda Rights become relevant when a suspect is subject to interrogation while in police custody.  Interrogation, which elicits thoughts of torture and a dark room, is actually as simple as a state official (typically law enforcement) asking a suspect questions about the circumstances giving rise to the alleged offense.  While this is typically done at the police station, this can occur roadside or in the back of a police car.  Voluntary statements or admissions made prior to a reading of the Miranda Rights but not prompted by questioning are not protected by Miranda.  

The second trigger is police custody.  Police Custody essentially means that the suspect is not free to leave.  This often means that the suspect has been placed under arrest and that they are confined by some actions of law enforcement.  A temporary detention, such as being pulled over and questioned by a police officer, does not require you to be Mirandized, however, the underlying rights (silence, counsel) still exist and a person is free to exercise these rights.

A failure on the part of law enforcement to read you your Miranda Rights may be helpful to your case in some circumstances.  Evidence of your statements can be excluded from trial and this may be enough to tilt the scales of justice in your favor.  This does not necessarily mean that you will win your case (Miranda himself was retried and found guilty of horrific crimes) but it is certainly something that any experienced defense attorney will want to look into.

CONCLUSION

It is always important to remember that you have a constitutionally protected right to remain silent and right to an attorney.  Rarely, if ever, does speaking with law enforcement help your case.  Law enforcement is rigorously trained to use interrogation to help build their case. Even if you may feel like you are answering questions that have nothing to do with the alleged offense, you need to remember that all statements can and will be used against you.  In a case where direct evidence is lacking, your statements may just be enough to send you away in the eyes of a jury.  

I always counsel clients to invoke their rights early and often.  Do not make yourself the prosecution’s star witness.  Always speak with an attorney prior to making any statements to law enforcement even if you believe that they have nothing to do with your case.  If you believe that your rights have been violated, contact The Law Office of Mattias Johnson today let’s make this a fair fight.  

As a criminal defense attorney it is impossible to avoid being questioned about driving under the influence (DUI).  DUI’s are unique in that the majority of those that commit the crime believe that they are in fact, not committing the crime.  Very few of us carry a personal breathalyzer device or analyze the science of intoxication, rather, we use past experience and general knowledge in self-determining whether we are impaired or capable of driving home.  Many people think they can have two beers at happy hour and be fine to drive home.  But can they?  What percent alcohol were those beers?  How much have that person had to eat that day?  Has he or she ingested any medication that may affect his or her level of impairment?  Has anything else been ingested that may have some alcohol content?

When happy hour is done and one drives home only to find oneself being pulled over for a taillight that he or she has been meaning to replace or a registration tag that he or she has been putting off attaching until nicer weather arrives, one may begin to panic about those two beers. Should he or she perform field sobriety tests?  Submit to the PBT?  If arrested should he or she submit to the Datamaster test or demand a blood draw?  How does the passage of time affect impairment?

 FIELD SOBRIETY TESTS: Field sobriety tests are roadside tests that a driver is asked to perform to aid an officer with a suspicion that you may be impaired in order to establish probable cause that the crime of impaired driving has been committed.  Probable cause of the crime being committed by the driver is needed to warrant an arrest.  Several tests are common (horizontal gaze, one-leg stand, alphabet, etc.) and your performance may establish the requisite probable cause.  Furthermore, failure on these tests can establish what is often referred to as ‘reasonable cause’ to request the driver to submit to a roadside PBT.

One thing that very few people understand is that it you are not required to submit to these tests!  There is no penalty for not submitting to these tests and you will make your lawyer’s job easier (if you get arrested, and if it has come to the point where you have been asked to get out of the car you probably will be arrested regardless of your performance on these tests) in challenging the arrest if you do not perform.  The officer will also have a more difficult job of showing that reasonable cause exists to ask you to perform the roadside PBT.

PBT: PBTs are an often unreliable handheld unit that generates an estimate of your blood alcohol content from your exhaled breath.  The result are generally inadmissible at trial (though exceptions do exist) and are used to establish probable cause for your arrest. 

Clients and friends often ask me if and when they should submit to this test.  After all, they have heard that Michigan is an implied consent state and there are harsh penalties for refusing the PBT.  This rumor is categorically false.  The penalty for refusing a roadside PBT is a civil infraction with a fine of less than $200 that carries no points (no impact on your driving record).  While harsher penalties exist for refusing the Datamaster test at the police station (more on this later) implied consent has nothing to do with roadside PBTs.  For this reason, I almost always advise clients to refuse to submit to the PBT.  This, again, makes the officer’s case in establishing probable cause to arrest difficult and easy to challenge if an arrest ensues.

DATAMASTER: The prior mentioned implied consent law kicks in after you have been arrested and you arrive at the police station.  While the police have options on how to test you, by far the most common in Northern Michigan is the use of a Datamaster device.  This device is a more sophisticated and controlled breathalyzer device and refusal to submit to testing will result in an automatic 1 year suspension of your driving privileges and 6 points will be added to your license.  You can appeal this suspension but must do so within 14 days of Officer’s Report of Refusal to Submit to a Chemical Test (pay attention to this timeframe, it goes quickly!).

Datamaster results are admissible and are often the strongest point that the prosecution can make in convincing a jury that your driving ability was impaired.  While a reading above .08 establishes only a presumption of impairment, this presumption is often difficult to overcome.

If you refuse to submit to the Datamaster test nonetheless, a warrant will likely be sought to have a blood draw performed at the hospital. 

TIMING AND WHY ALL THIS MATTERS: You may be aware that as time passes from the last sip of alcohol, the amount of alcohol in your blood naturally decreases.  You may also be aware that your body absorbs alcohol gradually and that the effects of drinking take time to be fully absorbed by your blood.  For example, if one were to rapidly chug three beers and then submit to blood alcohol testing the results would go up at first (as the alcohol is absorbed), hit a peak, and then begin to decrease. 

The presumption that somebody registering a blood alcohol level above .08 is impaired must take into account the time lapse from the time that the person was actually operating a motor vehicle.  If someone finds him or herself on the downward slope because they know that they have not been drinking for some time, it may benefit them to refuse testing in the hopes that when the testing actually occurs, their levels have lowered to below the legal limit.  On the other hand maybe you slammed your drink only minutes ago and may benefit from a quick PBT reading that your crafty defense attorney is able to get admitted at trial.

CONCLUSION: Drunk and impaired driving claims the lives of thousands of people every year and should be avoided at all costs.  If you have been arrested for impaired driving in Northern Michigan you owe it to yourself and your future to seek out the best representation possible.  You need an attorney that understands all aspects of DUI law and will fight to provide you every possible advantage as your case progresses.   The effects of pleading to or being convicted of impaired driving can be devastating and change the course of your future.  Give us a call today and let us see if we can help.

The simple answer is that it doesn’t.  What Northern Michigan needs is a different law firm.  A firm that values the lawyer client relationship over fees.  A firm that takes the time to make sure that the relationship between lawyer and client takes priority over a firm’s need to fill its coffers. A firm that is committed to doing the legwork before jumping into something as serious as a lawsuit.

We want to work with people that want to work with us.  If we realize off the bat that we’re not a good fit, we will take the time to advise you on where you might find an attorney that suits your needs.  If your issue is not our specialty, we’ll refer you to where you can find that specialized representation.  If you don’t feel comfortable with our representation we will send you on your way with a hand-shake and our genuine blessing.  

We take pride in getting things right from the start. If there are issues with your case we will tell you up front.  If there are alternatives to litigation, we will seek them out and present them to you from the get go.  We will never pressure you into making a decision, your case is your case.

What truly sets us apart is the effort that we will put into case at the outset.  This starts with creating a strong relationship and continues into our development of your litigation strategy.  We will leave no stone unturned and craft our efforts to prepare for every contingency and prevent any surprises.

In order to provide the best representation available, we insist upon full disclosure from our clients.  If there are facts pertaining to your case that you are uncomfortable discussing with us, we cannot represent you.  In spite of a client’s belief or hope that a fact may be immaterial, we must insist that this is our determination to make.

We recognize that you may be dealing with something traumatic and you need help when you come into our office.  We will strive to provide you with a predictable road map forward to provide you some semblance of certainty in uncertain times.  If you are facing something that you cannot shoulder alone, give us a call, there is no cost for our consultations.  Give us a call today.