22 yr. old son with 1st OWI

[ilworriedmom]

What is the name of your state (only U.S. law)? IL

My son was in Michigan last week. He went to a minor league game in the evening and then to a bar with a friend. When he was leaving the bar and driving a police officer pulled him over because he was weaving within his own lane. He asked my son if he had been drinking and he said 2 beers. The officer asked him to do a field sobriety test which he failed. The next part is what I feel sick about. We had always made comments at home how you should never submit to a breathalyzer test. Apparently that is old advice and the worse that we could have ever given him. The office asked him to take one and he said he was always told that he shouldn't take one. The officer got a warrant and had a blood alcohol test done it was .16. He was arrested and in jail for 9 hours. He said it was horrible. They did not take his license as he is an Illinois driver. He met with a lawyer who told him he really screwed himself over not taking the breathalyzer test and that since there really isn't anything to do he could represent himself and plead guilty. He said he really didn't like the guy. My son has never been in trouble with the law. No one in our family has. He is 22, a college student with good grades, and scheduled to graduate in December. He goes to a Christian school. If they find out about this they will expel him. I don't know if they will because of how long this process might take and because this happened in a different state and by the time notifications come to Illinois he may have already graduated.

Here are my questions. At first let me say I tried all day yesterday to find a lawyer in Michigan but got no call backs. Should we get a lawyer? Should we be filing for a hearing within the 14 days because he refused the breathalyzer test? Do we need to get a lawyer in Illinois as well? Has he ruined his life before it has even started? Is the refusal a criminal offense that will stay on his record forever even if he is able to plea to a lesser offense? Will he even be able to plead down his case? Since we don't have a point system in Illinois how will this be transferred over to the rules here. Would he have to do community service here or in Michigan? Alcohol counseling here or in Michigan? He feels horrible about this. He can't eat or sleep. He is not denying anything. It was a stupid thing to do. He knows that. I am praying that this will not affect his whole life, from future employment to travel. Any information is greatly appreciated.

 

[ilworriedmom]

Please, anyone?

 

[FlyingRon]

You need a lawyer in Michigan. You can get one for sure on Monday.

He can ask for a hearing on the refusal, but it's not likely to go anywhere, his driving privs in Michigan will be suspended and when Illinois finds out they will suspend him as well.

This is not a crime, it's administrative sanctions.

Your bigger worry is the CRIME of OWI which the blood test is prima facie evidence of his guilt. After he is convicted of that crime (WHICH IS WILL BE ON HIS RECORD FOREVER), he will also have his license suspended. Again IL will reciprocate.

You don't need any action in Illinois. The biggest factor of the cross state nature is that he will have to deal with both DMV's when he is eligible to reinstate again.

He could see up to 93 days of jail time, fines up to $500, up to 360 hours of community service and possible interlock before he can drive again.

 

[ilworriedmom]

Would you think all of those punishments would come into play? Would they be more likely to give him all of those because he is from out of state? Is there any leniency for first time offenders? Also would the suspension from the refusal plus the suspension from the conviction be served at one time on one after the other? Is there any hope?

 

[ilworriedmom]

One more question, I thought his pending issuance of court paper said OWI but it said OUIL. Is there a difference?

 

[BigMistakeFl]

The fines and community service are likely, along with suspensions. Jail is possible but not likely if he's not been in trouble before. The lawyer who advised him to plead guilty? Dump him.

 

[ilworriedmom]

I have talked to two lawyers today. We are not going with the initial lawyer he spoke with right after he got out of jail. He charged $250 for that consultation and then told him he would represent him but he really didn't need representation as he could just plead guilty. The first lawyer I spoke with today also painted a very bleak picture. He said my son should get representation but there really wasn't anything that they could do aside from arguing on his behalf for a lighter sentence at his conviction. From our telephone conversation he said it sounded like a pretty open and shut case and that he probably wouldn't be able to get any kind of lessor charge and that he would probably go to jail for two days at the minimum. The second lawyer I spoke with said as this was a first time offense without any prior arrests, there wasn't any property damage or accident that it wasn't overly gloom and doom. She said she would need to see all the reports to get a idea if it was possible for a chance of pleading to a lesser charge. She charges alot. $4,000 flat fee plus travel as it is two hours away from her office and this motions or trial would be extra but she said most cases don't go to trial. Any advice? It is very hard to try and find a lawyer over the phone from another state.

 

[ilworriedmom]

Is it better to get a lawyer that is in the town you were arrested in because they know the judges and have relationships with the prosecutor or a lawyer from outside the area who is more high powered and might be more aggressive?

 

[quincy]

An attorney who knows the judge can be an advantage.

What county in Michigan did your son get his OWI?

 

[ilworriedmom]

Thank you for your response. I'm not sure that I should answer about the county because I don't know if people who are on here would be lawyers or police officers that could figure out who my son was and use this site against him. I don't know how it works.

 

[BigMistakeFl]

Most DUI criminal defense lawyers don't charge for a first consultation. They work with a set fee structure, so much to represent you through a point, more if it goes to trial, etc.

 

[quincy]

I can understand your reluctance to divulge too much information about your son's arrest, but I can tell you that the arrest and charges are already known by law enforcement officers and attorneys. In fact, your son may find his mailbox filled with solicitations from attorneys in the next few days, offering to represent him in his case.

The reason I asked for the county is that, in Michigan, punitive sanctions are dependent, in large part, on the sentencing practices of the judges. There is a wide variation among the courts and the judges in the various counties of Michigan, with some judges always ordering jail time and others always ordering probation with no jail time for first offenders.

The odds are that your son will get probation without jail time (depending, again, on the county and the particular judge he will face), with required testing, alcohol education classes (which include a mandatory 3 hour MADD class), and community service hours. It would be wise for your son to seek alcohol treatment NOW, as judges look more favorably on those who take their drinking offense seriously enough to get help immediately for it (whether your son thinks he has a drinking problem or not does not matter).

States share driver information, so Illinois is aware of the arrest and charges against your son. Only Illinois can suspend your son's license, but Michigan can suspend his driving privileges in Michigan.

When looking for an attorney, the most important factor is the attorney's knowledge of Michigan drunk driving laws and his experience as a criminal defense attorney in handling drunk driving cases. With knowledge of the court and the judge, however, the attorney has an advantage in negotiating for the best outcome for your son. An out-state attorney may be more aggressive. So the choice is up to you. Again, it is experience and knowledge of the law that are most important.

In hiring an attorney, make sure you get a written fee agreement. Some of the attorneys who handle drunk driving cases in Michigan will charge a flat fee - make sure you know what exactly this flat fee covers. Others charge a large retainer then bill by the hour.

Your son's defense may rely on improprieties in the stop or in the testing (field sobriety, BAC) and, depending on these, a trial may be in your son's best interest. Generally, however, there will be a plea bargain that will reduce the charge against him in exchange for a guilty plea.

Because this is a traffic offense, it is not an expungeable offense in Michigan.

A DUI conviction adversely affects travel (especially to Canada), employment, schooling, and certain professions (medical, law enforcement, education).

 

[ilworriedmom]

Thank you so much for your in depth reply. Could all of those sanctions such as the alcohol classes and community service be done in Illinois? I don't know how he could do those classes and service 6 hours away when he doesn't have his license. I spoke to a local lawyer who said prosecutors in this area won't plead down to anything less than impaired when you bac is over .12. I forgot to ask about the judges. The thing about the local lawyer was that he thought that the filing period for the appeal of the refusal was 21 days. It's 14 days but he didn't know that and it worried me. He was a criminal defense lawyer who took dui cases. We are looking at someone from a bigger area but they come with a much higher price. They have had cases in that court though. The county is Midland if you have any info.

 

[quincy]

Hopefully your son now has an attorney who can represent him. He needs to challenge the breathalyzer refusal within 14 days, which doesn't give him much time.

It would be up to the judge to determine where and how the terms of probation are served. It is possible that the judge can order your son to take online drug and alcohol classes to satisfy that element of probation and, if so, he could do that from Illinois. I don't know about the community service - but that could possibly be satisfied in Illinois as well, through service with a nationwide charitable organization like Salvation Army. Your son should expect to have to make a few return trips to Midland County during his probationary period, however, should he enter a gulty plea and/or be convicted of the drunk driving offense.

The judge who handles most of the drunk driving offenses in the Midland District Court often orders "suspended" jail time with probation for first-time offenders (with probation ranging from 6 months to a year), and normally orders substance abuse classes and community service hours and, sometimes, random alcohol and drug testing, and $1000 fines and costs. Over ninety percent of the time the court accepts a guilty plea, and only around eight percent of the cases are dismissed, and about one percent will go to trial for a verdict.

In some of the cases I reviewed, the OUILs have been plea bargained down to OWIs (the lesser of the drunk driving offenses) and some OWIs have been plea bargained down to careless driving, even with .12 BACs. Careless driving would be a civil infraction. With a .16 BAC, however, careless driving is probably not a realistic outcome for your son, unless the attorney can fight the reliability of the blood test.

In Michigan, a restricted driver's license is available to those with OWIs, which allow for driving to and from school, to and from work, to and from alcohol education classes, and for serving out the community service hours. How Illinois handles the license part of any conviction I don't know, though.

Your son will do best with an experienced attorney. I wish him good luck.

 

[ilworriedmom]

Illinois will revoke not suspend his license with either conviction of an impaired or a dui notification from another state. What is sad is that first time offenders in Illinois always have court supervision with all the sanctions of alcohol evals., community service, and a device put on your car to monitor. There is definitely punishment in Illinois but an opportunity to make yourself the better person who can learn from your mistake. There is no such grace from an out of state conviction. With a conviction he will have to do much of the same the judge will order for him in Michigan in order to reapply for a license after the year is up. Thank you again for your help.