With summer tourism in full swing here in Northern Michigan, particularly with the upcoming Cherry Festival and 4th of July festivities in all our harbor towns and area inland lake communities, it is never too late or too redundant to advocate against drunk driving.  It affects us all.  The risks are immeasurable and sadly, in some instances, irreplaceable.  But there really is a simple solution: call a cab if you have been drinking.  There are ample resources in the region to accommodate and get you back home (or to your hotel) safely.   The reality is, however, these next two weeks prove to be one of the more active statistical drunk driving arrest periods in Northern Michigan.  Whether you have been injured by a drunk driver or you have been arrested for drunk driving, our experienced trial attorneys here at Smith & Johnson, Attorneys, P.C., can help.  Please call us at 1-866-946-0700.

Authored by L. Page Graves

          A police officer noticed a Pontiac Grand Prix swerving inside its lane on I-75.   It was never speeding and it never went outside of the lane markers, but it weaved almost continuously for three miles.  The officer pulled the vehicle over, suspecting intoxication.  Defendant was the passenger and another man was the driver.  The officer asked the driver for his license and registration, but he produced only a Michigan ID card and a rental agreement for the car that did not list the driver or Defendant as the authorized driver.  The officer asked the driver to exit the vehicle and they walked behind the car for questioning.  After he walked around the car, the officer noticed a white pharmacy bag on the ground outside the vehicle by Defendant’s passenger door, which had not been there before.  In the meantime, the driver consented to the officer’s request to search the vehicle.  The officer questioned Defendant about the bag, but Defendant insisted the bag did not belong to him and that he did not place the bag outside the car.  In the bag were 220 pills totalling 59.02 grams of Oxycodone.  Defendant was charged with possession with intent to deliver a controlled substance, MCL 333.7401(2)(a)(iii).

             The trial court granted Defendant’s motion to suppress the evidence and dismiss the charge, but the Court of Appeals reversed, finding the stop and search to be constitutional under the Fourth Amendment of the U.S. Constitution and Article 1, § 11 of the Michigan Constitution, even though the bulk of the search focused on the driver, but Defendant was the one who was arrested. 

            The Fourth Amendment and Article 1, § 11 guarantee a person’s right to be free from unreasonable searches and seizures.  When a police officer searches without a warrant, the search is deemed to be unreasonable unless an exception applies.  Two common exceptions are an automobile search and consent.  If an officer has an articulable and reasonable suspicion that a vehicle or one of its occupants has violated a law, the vehicle can be stopped.  The Court of Appeals held that here, the weaving gave the officer a reasonable suspicion that the driver could be intoxicated, giving the officer the right to stop the vehicle.  All of the action after that point was then legal.  The Court of Appeals stated that when a traffic stop reveals a new set of circumstances, here, the failure to produce a valid license, an officer is justified in extending the detention long enough to resolve the suspicion raised.  This is so even if it results in a passenger being arrested, not the driver who caused the suspicion in the first place.  As to the bag, one placed outside the car, it is deemed abandoned and there is not expectation of privacy in it, so it can be seized and searched without a warrant. The Court of Appeals reinstated the charges against Defendant.


What This Means For Drivers:

 Even if the stop shows that the initial suspicion of a broken law is false, if the stop reveals a new set of circumstances that is reasonably suspicious, the officer can detain longer and inquire further.  And this is true even if the focus changes from the driver to the passenger.

You can view the entire opinion here.

Authored by Barbara A. Assendelft

Defendant and her husband were found in contempt of court for violating a personal protection order (PPO) entered against them by Defendant’s sister-in-law (the “complainant”), who was married to Defendant’s brother.  Defendant’s brother had been granted guardianship over Defendant’s 14-year-old son as a result of neglect proceedings involving the boy.  On the day in question, Defendant and her husband were in court on a show cause hearing against Defendant’s brother-in-law for his violating a visitation order allowing Defendant visitation with her son.   The complainant was present at the courthouse just to show her support to her husband, Defendant’s brother.  However, at court a confrontation broke out when Defendant saw the complainant. 


The testimony conflicted regarding who started the confrontation.   The complainant testified that when Defendant saw her, Defendant started shouting at her and using profanities against her.  Defendant testified that at no time did she approach, confront, or use profanities against the complainant.  The trial court believed complainant, and found that Defendant had violated the PPO’s provision that she was not to approach or confront the complainant in a public place.   On appeal, Defendant claimed that  the holder of a PPO should not be able to use it as a sword instead of a shield.  In other words, Defendant argued that the holder of a PPO should not be able to interject herself in a place where the defendant would be, and then claim a violation of the PPO if a confrontation develops.  The Court of Appeals disagreed with  Defendant, holding that the holder of a PPO is under no obligation to behave in a certain way or to avoid certain places.  In determining whether there has been a violation of a PPO, the focus is to be only on the individual against whom the PPO is entered, not on the complainant. 

What this Means for PPO Holders: 

The holder of a Personal Protection Order does not have to worry about avoiding places where the defendant is likely to be.  The holder of a PPO does not have to change his or her behavior or patterns.   If a person  has a PPO against him or her,  it is only his or her behavior that is looked at in a contempt proceeding.   The focus is solely on the behavior of the defendant, not on whether the complainant somehow precipitated contact.

You can view the entire opinion here

Authored by Barbara A. Assendelft

Ever since the changes to Michigan’s drunk driving law in 1999, repeat drunk driving offenders have faced obstacles in getting their licenses back after revocation.  The driver had to go through annual review hearings to try to get their license back, provided they qualify.  Effective January 1, 2011, however, a new law, the DWI/sobriety court law, significantly changed these revocation hurdles.  It added a new section, MCL 257.304, to Michigan’s drunk driving law, which established new privileges, procedures, and corresponding sanctions for repeat offenders.  Most significantly, after an initial 45-day suspension, qualifying repeat offenders will be able to obtain restricted driving privileges with a breath-alcohol ignition-interlock device provided they have successfully participated in a  sobriety court program. 

The new law has a broad definition of what is a “prior offense.”  It requires the Secretary of State to issue a restricted license to an individual whose license was restricted, suspended, revoked, or denied because he or she either has (1) two or more convictions of driving while intoxicated (DWI) or visibly impaired under Michigan law, or (2) one conviction under Michigan law for one of those offenses, preceded by one or more convictions for violating a ‘substantially similar’ local ordinance or law of another jurisdiction.  A restricted license may then be issued after the individual’s driver’s license has been suspended for 45 days.  For this to occur, the judge assigned to a DWI/sobriety court must certify to the Secretary of State that the individual has been enrolled in a DWI/sobriety program and that an approved ignition-interlock device  has been installed on his or her vehicle.

            The restricted license remains effective until a hearing officer orders an unrestricted license. The hearing officer must then order an unrestricted license when the later of the following events occurs:  Court notification to the Secretary of State that the individual has successfully completed the DWI/sobriety program; the completion of the minimum license sanction that would have been imposed.  Both must occur. 

            The DWI/sobriety court law uses incentives to give the driver incentive to timely complete the DWI/sobriety program.   For example, the law provides that all required driver responsibility fees assessed by the Secretary of State be held in abeyance while the individual is participating in the program.  Further, the individual’s vehicle is exempt from forfeiture or immobilization while they are in the program.


What it means for drivers: 

 The law provides license sanction parity with last year’s “super drunk” law.  Now, “super drunks” and repeat offenders both have a 45-day hard suspension followed by 320 days of restricted driving with an interlocking device.  The law is also likely to encourage participation in a DWI/sobriety court by making it more rewarding to repeat offenders.  However, one problem is that the new law creates two classes of repeat offenders: those whose convictions occur in jurisdictions using DWI/sobriety courts and those whose convictions occur in jurisdiction without such courts.  The offenders unlucky enough to be arrested in the latter will have more harsh driver’s license sanctions.


Authored by: Barbara A. Assendelft