The Law Office of Mattias Johnson

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In reading this blog you understand that this information is not provided in the course of an attorney-client relationship and is not intended to constitute legal advice. This blog should not be used as a substitute for competent legal advice from a licensed attorney.  

Criminal Charges: Understanding the Process

Often when someone is facing a criminal charge it can be overwhelming and scary.  There are a lot of questions and unknowns but, hopefully, with a basic idea of what the pretrial proceedings involved, some of these fears can be eliminated.

First, after being arrested, there will be a District Court arraignment.  This will take place whether the charge is a misdemeanor or a felony.  A misdemeanor is a less serious crime than a felony.  In Michigan, a felony is a more serious crime that is punishable by more than one year in prison.  At the arraignment a defendant will be advised of the charge(s) and the maximum penalty of each charge, as well as, constitutional rights, appointment of an attorney (if one has not already been retained), and any conditions of bond, should bond be set (which in almost all cases, it will be).

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If charged with a misdemeanor, at the arraignment, the defendant will enter a plea to each charged offense: guilty, not guilty, or stand mute (the court treats this the same as a plea of not guilty).  If a defendant pleads guilty or no contest (this means the defendant neither admits nor denies having committed the crime but accepts the punishment), the judge may sentence defendant right away or schedule a sentencing date. 

Second, should the defendant plead not guilty, a pretrial conference is set.  This is a meeting between the prosecutor and the defendant, plus his/her attorney in which the prosecutor may offer a plea bargain and a determination is made as to whether the case can be resolved without trial.  If it is determined that the case cannot be resolved with a plea, a trial date will be set.

If charged with a felony, at the arraignment, the defendant does not enter a plea of guilt or innocence.  A defendant is merely advised of his rights, as stated above, plus the right to a preliminary examination (a/k/a “prelim”) within 14 days of the arraignment.  A defendant may also waive the right to the preliminary examination in which case the defendant will be bound over to Circuit Court immediately.

Next, at the preliminary examination, the prosecutor must present evidence, including witness testimony, to prove that there is probable cause to believe that the charged crime(s) were committed by the defendant.  The point of this is that the prosecution is trying to provide enough evidence to bind the defendant over to Circuit Court for trial.  This burden of proof is much less than that required of the prosecutor at trial.  The defense can also present witnesses and cross-examine any of the prosecutor’s witnesses.  After all evidence is presented, the court may either bind the defendant over to Circuit Court on the charge(s), bind defendant over to Circuit Court on different charge(s), reduce the charge(s) to misdemeanors for trial in district court, or dismiss the charges.

Should the defendant be bound over to Circuit Court, a second, Circuit Court arraignment will be held whereby the defendant, again, will be advised of constitutional rights but will now enter a formal plead (guilty, not guilty, or stand mute) to the charge(s).  If the defendant pleads guilty the court will schedule a sentencing date.

Third, a pretrial conference is scheduled in Circuit Court.  Like the pretrial in district court, this is a meeting between the prosecutor’s office and the defendant and his/her attorney to determine if the case will go to trial or can be resolved with a plea bargain, should one be offered.  If the case cannot be resolved, trial will be scheduled.

Hopefully this brief overview of the proceedings that will take place before trial provides an idea of what should be expected at each stage.  If you or someone you know is facing any criminal charges, ease your mind and contact the Law Office of Mattias Johnson.

How is Child Support Calculated and Modified?
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When determining custody and parenting time, the court will also make a calculation of child support.  Any final judgment of divorce with minor children must be accompanied by a Uniform Child Support Order.  The calculation of support will be determined based on a number of factors, including: each parent’s income, the number of overnights each child spends with the parent, medical insurance premiums paid by a parent, any additional children each party may have, and child care costs.

In determining a parent’s income, the court will consider, among other things, wages, business income, retirement income, social security income, unemployment income, disability income, trust fund income, military benefit pay (including housing), interest and dividends income, and capital gains income.  Noncash benefits, such as goods, services, or other any other benefit that is significant and helps regularly reduce the parent’s monthly expenses.  If a parent is voluntarily underemployed or unemployed, their income will be imputed to a level that the party is capable of earning given their skill level, education, past employment, availability of work in the area, and prevailing wage rates in the area.  Unless a party can show a disability or other medical reason for not working, their income will be imputed, at a minimum, to reflect minimum wage at 40 hours per week.

In calculating the number of overnights, the court may use the number of overnights actually being exercised by a parent instead of the number of overnights stated in the custody order.  For example, if a party is ordered 100 overnights a year with the minor child(ren), but only exercises 75 overnights, the court may use the 75 overnights for child support purposes.

Once a child support order has been entered, the court will only review it once every 36 months.  If either parent receives public assistance, this review will be done automatically otherwise, a parent must request a review.  Either party may request a review at any time by filing a motion, but they must show that there has been some change in circumstances since the entry of the last child support order.  These circumstances might include a substantial change in a party’s income or a change in custody.  Therefore, it is important to make sure that child support is calculated correctly because making changes once an order has been entered can be difficult.  If you are considering a divorce or a child support modification, call the Law Office of Mattias Johnson.

 

Operating While Visibly Impaired

The first thing that any attorney should do when a client comes in after being charged with some form of Driving Under the Influence is review the traffic stop, the arrest, and the test results.  People in these situations have certain rights and a violation of these rights may allow an experienced defense attorney to get the charges dropped.

Far more often, law enforcement has done their job properly and a client must choose carefully how to proceed.  Certain cases where a client registered a blood alcohol level at or only slightly above the legal limit, may be worthwhile to take to trial.  Others, such as where the blood alcohol tests show results well in excess of the legal limit, should seek to limit exposure by entertaining the idea of a plea deal to a lesser charge. 

The ultimate plea deal for my clients in these situation is a plea to Operating While Visibly Impaired.  Unlike a plea to Operating While Intoxicated, Operating While Visibly impaired carries with it no mandatory license suspension and a lesser period of time under which the client will have a restricted license.  The fines are also significantly less as are the points added by the Secretary of State to that person’s license. 

Unlike in bigger cities who can utilize public transportation, people in Northern Michigan who lose their driver’s license for 30 days may also lose their job. If you or someone you know has been charged with any form of Driving Under the Influence, have them give The Law Office of Mattias Johnson a call and see if this lesser charge may be an option.

FACEBOOK & CUSTODY PROCEEDINGS: USERS BEWARE

The events giving rise to a divorce and the conduct of parties during a divorce proceeding can create strong feelings among all involved parties.  Having these feelings is perfectly natural and when contained will, generally, have no bearing on your divorce or custody proceeding.  Michigan is a no-fault divorce state and there are very few reasons that a court would use the conduct of either party in real life or on-line as a basis for not ordering a truly equitable division of marital assets.

Custody, however, is not determined on a no-fault basis.  The conduct of the parties may be direct evidence utilized by the court to depart from the baseline 50/50 split of parenting time.  As an attorney, one of the first places that we will look to bolster our client’s claims in a custody proceeding is Facebook.  While a questionable post may be used as evidence for several of the 12 Best Interest Factors, in our experience most often these posts are used to show a lack of willingness and ability of a party to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.  

Where this comes up most frequently is when one parent or both are posting mean or untrue things about the other party.  We all should be frequently reminded that in spite of our best efforts to boost our privacy online, Facebook is an inherently public forum.  While you may not intend that your kids or friends and parents of your kids will read you posts, all too often they do.  Any evidence that an attorney can present that shows that you are anything but supportive of your children’s relationship with your ex will be presented and have an impact on a Judge’s decision making.

We often counsel clients to shut down their social media sites while they are going through a custody battle as little good can come of leaving them up.  If you are looking for legal counsel as you navigate the difficult road of a custody battle, give The Law Office of Mattias Johnson a call.  We will be happy to meet with you and discuss how we can help.

Michigan Sales Representative Commission Act – What Employers Need to Know

We have previously written blogs about how the Michigan Sales Representative Commission Act and the Procuring Cause Doctrine can help to level the bargaining power between a terminated commissions employee and their ex-employer.  Is there anything that an employer can do to take the power back?  Knowing that these laws exist is a good first step, but establishing solid business practices can avoid exposure altogether.

DRAFT SOLID CONTRACTS: The first thing that any employer considering hiring an employee should do is reduce their agreement to writing.  Having predictable outcomes to employment issues not only puts the parties at ease but also cuts down on the need for expensive litigation when things go wrong.  In light of the Michigan Sales Representative Commission Act and Procuring Cause Doctrine any commission-based employment contract must be carefully drafted.  How commissions are earned should be specifically set out, when payment of commissions is due should be clear and how post-termination commissions will be paid should also be outlined.  Essentially, an employer should be able to come up with a hypothetical based on their business practices and immediately know what is due, to whom, and when.

STICK TO YOUR CONTRACTS: If you set out specific terms in your contract outlining what commissions will be paid, when, and to whom, stick to those terms.  The penalty provisions in the Michigan Sales Representative Commission Act (up to $100k plus attorneys fees) give an employer ample reason to pay commissions when they come due.  If a disagreement arises with an employee, deal with it, do not just sweep it under the rug and hope it goes away.

CONSIDER A SEVERANCE PACKAGE: Chances are, if a relationship is being terminated, neither side wants to drag out the break-up.  Even when a valid contract exists, the Procuring Cause Doctrine can make a determination of what commissions are due following termination a gray area.  Gray areas are areas that we attorneys know are ripe for litigation.  This means that if both sides are not satisfied with what is owed and when, the break-up of employer/employee may drag on for months or even years.  Both sides should see the value negotiating terms of a fair severance package to prevent this from happening.  Finding neutral ground that settles all issues related to potential or real future commissions is typically in the best interest of both parties.

If your business is considering hiring commission-based employees or already utilizes their services, let us sit down with you and make sure that you are doing everything that you can in the off-chance that the relationship sours.  Let The Law Office of Mattias Johnson create a predictable plan for your business so you can go about selling your goods or services without fear. 

(For other drafting tips and considerations see our blogs on Non-Competition Agreements, Non-Solicitation Agreements, and At-Will Employment)

What WILL happen? Estate Planning Basics for the Young Professional

Many of us choose to put off things like estate planning in our early years in the workforce for many different reasons.  We don’t have a lot of assets (thanks to student loans many of us are worth more dead than alive), we are probably going to live forever, we don’t have the money to pay someone to guide us, or maybe we just plain do not want to think about dying.  All of these opinions are common and understandable.

To alleviate some concerns, you should know that setting up simple estate plans does not need to be expensive, and you probably have more assets than you might think.  To justify some of your concerns, you are not invincible and you will someday die.  The question that you seek to answer by completing some basic estate planning is: what happens to my assets and family when I die? This blog is meant to provide some basic explanations for questions that I get frequently about estate planning basics. This information is no substitute for legal advice and if you are considering implementing or updating your estate plans give The Law Office of Mattias Johnson a call and let’s make sure everything is done right.

WILLS: Not to oversimplify things but a will is just that, what you ‘will’ to happen after you pass away.  For the young professional this will often include who would potentially assume responsibility for minor children and how that care may be funded.  It may also include a succession plan for a business with which you are involved.  Obviously, it would also include where your assets are to go.

POWER OF ATTORNEY: Often called a durable POA or Springing POA, this is a document that you execute to allow a designated person to make decisions on your behalf if you become unable to do so for any reason.  This document would allow the designated individual to sign and consent on your behalf for what that persons deems to be in your best interest.  You can also lay out specifics on medical care preferences and other issues that may help the POA in the event that they are called into action.

TRUSTS: Trusts are a wonderful way to set up your estate for the future, but generally a trust is going to require significant assets before it becomes a useful tool. 

LISTS: Although not a legal documents, strictly speaking, I always recommend that estate planners make some lists to help beneficiaries and designees facilitate your wishes at the time of death.  Lists can be of specific personal property that you want disposed of in a specific manner but can also include a list of your financial institutions so that others don’t have to go digging around to find out where your financial assets are located.

While no one wants to think about their end of life, knowing that you are placing as little burden on others following your death should alleviate some stress.  Recognizing that you have control even after you lose actual control, allows your legacy to live on and your wishes to be honored.  If you have any questions, please give The Law Office of Mattias Johnson a call and lets sit down and discuss.

 

 

Boating Under the Influence - BUI

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.

Michigan Sales Representative Commission Act

If you have ever worked a commissions based job you know how critical those commissions are to your financial well-being. You likely also know the accounting of these commissions and ultimate power to pay what is due is controlled, often blindly, by the employer.  What can be even worse is when employees begin to question what amount is due and when it will be paid, some employers opt to simply terminate the employee to avoid the hassle and keep the earned commissions for themselves. 

The Michigan Legislature recognized this inequality of bargaining power and gave terminated commissions employees a gift in Michigan Sales Representatives Commission Act.  Under the Act, commissions due to an employee when his/her contract is terminated must be paid within 45 days.  Commissions that become due after the time of termination similarly must be paid within 45 days of coming due.  While a written sales representative contract is helpful, even oral contracts are covered by the Act.

If these amounts are not paid, the Act gives the employee strong recourse.  Not only are the commissions owed recoverable, but so too are attorney fees and court costs.  To make things even sweeter and to deter this kind of conduct by employers, if the commissions are intentionally withheld (meaning the employer knew they were owed or had reason to know that they were owed), the employee can recover an additional amount equal to double the amount of commissions owed or $100,000, whichever is less! 

If you have been terminated from a sales commission-based position and you know that you have unpaid commissions that your ex-employer is aware of and refuses to pay within 45 days of your leaving, contact The Law Office of Mattias Johnson today.  Often times we can take these cases on at little or no cost to you and we recover only if you recover, so you have nothing to lose.  Statutes of Limitations may be at play so contact us today.

Custody in Michigan Divorce Cases

Nothing comes easy when a couple decides to file for a divorce.  The division of assets and debts, deciding who, if anyone, keeps the marital home, and reestablishing a new life as a single person are unenviable tasks. Nothing, however, is more difficult on a person than determining what custody arrangement is in the best interests of the children and in so doing reducing the amount of time each parent gets to spend with the little ones.  Nothing can possibly compare to seeing time with one's children divided by half, or maybe more.

Let's start off by dispelling the rumor that a mother automatically has a greater claim to the custody of her children than the father. This statement is false.  Both parents have equal rights and a baseline custody arrangement seeks equal time for both parents.  There are limited instances and factors wherein a mother’s claim may be superior, but this is certainly not the norm.

While an equal division of time is certainly the goal, getting there can be difficult and at times impossible.  What if one parent travels for work?  What if one parent moves outside of the school district that the children have been attending? What if the kids do not react well to going from home to home every week?  How much stability do the children need?  These, and countless others, are questions that must be considered in determining a custody schedule that is in the best interests of the children.  

Custody arrangements work best when the parties are able to agree and be flexible.  Being agreeable and flexible, however, when dealing with an ex or soon to be ex, is easier said than done given that there are likely some strong feelings that are leading to the separation in the first place.  If you are facing a custody battle, you need an attorney in your corner that understands your situation and will vigorously advocate on your behalf.  Custody Orders are permanent in nature and once in place are difficult to change so you need to be sure that the Order reflects your wants and needs and truly looks out for the best interests of your children.  Contact The Law Office of Mattias Johnson today so that we can help make that happen.

Divorce is a Bumpy Road: What to Expect if One May Be in Your Future

The decision to file for a divorce is rarely a quick decision, and it certainly shouldn’t be. The law in Michigan requires that for a divorce to be granted there must have been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. Thus, prior to filing for divorce, hopefully a couple has done everything in their power to attempt to preserve the marriage. During this time when people are trying to preserve their marriage at all costs, it may be beneficial to prepare oneself for the possibility that preservation is not possible.

We often meet with clients at this stage of their marriage and counsel on what steps can be taken to prepare for a potential divorce. The filing of a formal divorce proceeding can have a substantial impact on all facets of your everyday life, and while you may not be able to prevent these changes from coming, you should understand what these changes are and be prepared should this alternate reality become the norm by either party filing for divorce.

KNOW YOUR FINANCES: Time and again one partner in a relationship deals primarily with family finances. This person has all contact with financial institutions to an extent that the other partner may not even know what bank the family uses. In a divorce, assets and debts are equitably divided and in preparing for a these major life changes you will need to know what to expect. Will one party be able to afford a separate living arrangement during the pendency of the divorce and after? Will one party have sufficient assets to be able to retain the marital home? If the parties separate will both be able to provide for themselves and their children? Will either side likely be liable for child/spousal support?

While you may not like the answers you get, being prepared can alleviate some of the inherent stress in a divorce proceeding.

KNOW WHERE YOU WILL GO: In Michigan, couples with children under 18 years of age or younger are required to wait a minimum of 6 months from the date of filing before a Judgment of Divorce will be issued. During that time, it is often very awkward for the couple to remain living together under the same roof. If one of the parties has family nearby, that may be an option for one party’s relocation. That being said, there can be consequences to leaving the marital home and you should consult with your attorney before making such a decision.

CUSTODY DURING THE DIVORCE: Perhaps the hardest part of going through a divorce is going from seeing your little ones everyday to something less than that. Both parents are required to act in a manner that takes account of the best interests of the children, and hopefully that means splitting time evenly with the kids. There are, of course, circumstances where this setup is not in the best interests of the children or not practical and this is something that you need to consider before your case is filed with the court.

A divorce is hard enough on its own, but if you believe that a divorce may be in your future (hopefully it isn’t), you owe it to yourself and your family to sit down with an experienced family law attorney and know what is coming. Contact The Law Office of Mattias Johnson today for a free consultation and let us help you prepare for what might be coming.

Non Competes in Michigan

When starting a new job in Michigan, workers are often asked to sign some version of a non-competition or non-solicitation agreement.  These agreements are meant to protect the business’s reasonable interests should your time with the business cease.  For many reasons, these agreements are not well understood by those who are left without an option but to sign it or else risk not getting the job.  Conversely, when employment terminates, businesses are often left wondering what the agreement actually gives them the power to do.

While there is nothing inherently wrong with these agreements, and while they have been in use for many years, Northern Michigan Courts have routinely limited their effect. The starting point is that the agreements must protect a reasonable business interest.  You cannot prevent someone from using general knowledge that they gain through employment in the future, but if there is something special about how your business operates, you can protect it.  These agreements must also be specifically tailored to represent a reasonable protection based on duration, geographic scope, and subject matter coverage.  Finally, these agreements must not seek to simply prevent competition. 

Here is a look at a few things that every employer that utilizes these agreements and every employee that signs one, should know:

EMPLOYERS:  Be reasonable and be clear.  I always suggest against using boiler plate agreements that you find on the internet, at least without significant editing, because no two businesses are the same.  You may have a specific process that you developed to bolster your business that is not generally known in the industry.  You may have client lists that have taken years and many thousands of dollars in advertising to build.  These are reasonable considerations to protect.  It is inherently reasonable to prevent an employee from taking these processes and using them to his or her own financial gain but you must limit this prevention so it protects your interests specifically.  If you only do business in Traverse City, you need to limit the agreement to actions by the former employee to this geographic area (after all, it shouldn’t hurt your business if he or she uses the processes in Texas).  Consider using a mile radius that covers a few neighboring counties especially if you could show that some of your clients, past or present, hailed from those areas.  Limit the duration of the agreement to 3 years or less.  Michigan Courts have consistently held that longer durations are unenforceable.  Finally, limit the subject matter to what it is that you are seeking to protect.  You cannot prevent an employee from making any use of his training or degree by casting a broad net that covers jobs that in no manner compete with yours.  The key is to be clear and concise so that if you need to have the Courts enforce your agreement you already have your ducks in a row.

EMPLOYEES: READ THE AGREEMENT BEFORE YOU SIGN!  I know that in the excitement of landing a new job you would do just about anything to make the transition go smoothly, but not all jobs work out and you need to know that if you need to find something else, these Agreements will not prevent you from doing so.  An unreasonable restriction can always be challenged in the Courts but it may very well cost you thousands of dollars to do so.  Make sure you understand exactly what it is that the employer is seeking to protect.  They have legitimate interests in protecting their business, but not in preventing you from getting your next job if need be.  There may be room to negotiate the terms of the agreement but this can only be done before you actually sign, so know what you are getting into and know your rights. 

Miranda Rights: When Are They Relevant?

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.  

Should I Take the PBT?

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.

WHY DOES NORTHERN MICHIGAN NEED ANOTHER LAW FIRM? by Mattias Johnson
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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.