Category Archives: Alcohol Offense

DISMISSAL of Implied Consent Violation

In Michigan, under the Implied Consent law, if you have a driver’s license, you have consented to take a chemical breath or alcohol test if a police officer has reason to believe you are intoxicated and has asked you to take a test.

We recently had a client allegedly refuse to give a breath test when asked and as a result she was charged with an Implied Consent Violation. The penalty for such a violation is suspension of the person’s driver’s license for a period of 6 months to 1 year. In an effort to prevent that suspension, we filed an appeal with the Secretary of State and asked for a hearing. At the hearing, it is the People’s burden to prove that the defendant understood her chemical test rights, refused that chemical test despite knowing the penalties, and was afforded a chance to speak with a lawyer prior to consenting (if it was requested).

At this latest hearing, Neil Rockind was able to demonstrate to the Secretary of State hearing officer that our client had asked for a lawyer several times prior to taking the test and was prevented from speaking with a lawyer. That was enough to vitiate the alleged implied consent violation.

Therefore, the hearing officer DISMISSED the alleged violation!

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Oakland sheriff’s deputy drove drunk, fled officers, police say

Rochester Hills— An off-duty Oakland County Sheriff’s deputy charged with drunken driving and fleeing and eluding police over the weekend had a blood-alcohol level of .29 — more than three times the legal limit for motorists, according to a police report released Tuesday.

Michael Daves, 50, was arraigned Tuesday before Rochester Hills District Judge Julie Nicholson on charges of operating while intoxicated-second offense and fleeing and eluding. He was released on $5,000 personal bond pending a pre-exam conference next Tuesday.

Daves, assigned to the sheriff’s Pontiac substation, has been suspended from the sheriff’s office pending the outcome of the case. The sheriff’s office said Daves was off-duty and driving his own vehicle during the incident.

Police said Daves was pulled over in his 2011 Jeep about 12:30 p.m. Sunday after a four-mile pursuit, according to authorities. During the chase, he was spotted swerving near several cars and a tree, and just missed striking a jogger who had to leap out of the way, according to witness statements. No one was injured.

When Daves finally pulled over, he is believed to have changed out of his deputy uniform and into blue jeans, a white T-shirt and blue University of Michigan pullover, according to the police report. He was taken into custody without further incident.

According to a police report released Tuesday, a brown paper bag with an empty Smirnoff’s vodka bottle inside it was found in the Jeep.

Lake Orion police have interviewed three witnesses, including one who followed the Jeep south on M-24 from Oakwood Road to downtown Oxford. There, Daves allegedly nearly struck several vehicles and the jogger.

Two other witnesses, who were in a separate vehicle, also reported the erratic driving and followed the Jeep into a subdivision, where it parked for several minutes before continuing on.

Lake Orion police Officer Zachary Lemond responded and was questioning a witness when the Jeep reappeared. The vehicle sped off when the officer tried to stop it.

The officer activated his overhead lights and siren on Cross Timbers Street just two car lengths behind the Jeep.

Daves finally pulled the Jeep over after Lemond activated his public address speaker and instructed Daves to pull to the right shoulder of the road and stop. But the Jeep took off again after Lemond exited his patrol car.

Daves was instructed to turn off the Jeep and drop the keys out the window, according to the police report. After several orders, he complied and stepped out of the Jeep, the report said.

“The driver seemed confused during these instructions, appeared to mumble to me and failed to turn around or get on the ground after being instructed to do so several times,” wrote Lemond in the report. “I approached the driver and used his left arm to take him down to the ground. I then searched and handcuffed the individual before putting him in the back of my patrol vehicle.”

Daves was staggering and swaying but was “apologetic and cooperative” after being handcuffed, Lemond wrote. He reported the deputy smelled of intoxicants, had watery eyes and was “sleepy looking.”

Through slurred speech, Daves mumbled he was diabetic but he was not having a diabetic episode and did not need medical attention.

Daves agreed to a preliminary breath test but “did not make a satisfactory blow into the device” and “appeared to be attempting to circumvent the test,” according to the police report.

Through saliva retested at the station, it was determined Daves had a .258 blood-alcohol level but in a subsequent DataMaster breath test at the station, the results were even higher — .29 and .28 — according to the police report.

Because his badge, handgun and uniform were not inside the Jeep, the officer theorized Daves “quickly changed clothes and stashed his uniform, badge and possibly a gun belt in an undisclosed location as to avoid detection.”

No such discarded clothing or property has been recovered by Lake Orion police.

via Detroit News

Neil Rockind in the News – Argus Press

Neil Rockind discusses the need for better interpreters in the legal system.  share.

Liquor sales can now flow at 7 a.m. Sundays

This time they stirred the drink — added a twist — and it came out just right.

Lawmakers on Wednesday approved a revised bill to allow liquor sales Sunday mornings and on Christmas Day — a bill Gov. Jennifer Granholm said she will sign.

The new law also allows free, limited samples of beer and wine at grocery stores, bars and restaurants.

In October, Granholm vetoed a similar bill citing concerns over the volume of free samples allowed as well as a provision to permit restaurants to supply their own wholesale-bought liquor for catered events.

The new bill eliminated the provisions the governor objected to and the compromise shot through the Legislature like beer at a Detroit Lions game.

Booze law lets you try before a buy

What a difference a month makes.

When Gov. Jennifer Granholm vetoed a sweeping bill to allow Sunday morning liquor sales, state Sen. Alan Sanborn said the proposal to help booze sellers was dead.

But — at least when it comes to booze — the Legislature proved Wednesday that miracles, like ’em or not, do happen.

On Wednesday, Sanborn, R-Richmond Township, announced a compromise and that Granholm was on board.

And, faster than your favorite bartender can draw a draft, the Senate and House approved a liquor sales bill that restaurants, grocery stores and the beer and wine industry have sought for years.

Soon, retailers, restaurants and bars will be able to sell beer, wine and spirits on Sundays, starting at 7a.m. Current law prohibits Sunday sales until noon.

Also, liquor sales will be allowed until 11:59 p.m. Christmas Eve, and then again after noon on Christmas Day. Current law prohibits sales after 9p.m. Christmas Eve and all day Christmas Day.

Dealers must pay an extra $160 yearly to sell liquor on Sunday mornings, Christmas Eve and Christmas Day.

Gone from the bill are several provisions Granholm found objectionable, including allowing restaurants to use their own liquor when they cater events and the amount of free sample beer and wine that could be provided at tastings.

The bill also allows:

• Grocery stores and other alcohol retailers to offer free beer and wine samples to shoppers — but no more than three samples of two ounces each.

• Restaurants to offer up to two free samples of beer or wine per customer, so they can taste before they buy a glass or pitcher.

• Wineries to charge for samples of their wines. Current law prohibits charging.

Mike Lashbrook, spokesman for the Beer and Wine Wholesalers Association, said the new law will be a boon to many alcohol establishments.

He said it especially will help resorts — a Sunday morning Bloody Mary will now be a legal sale — and those that serve patrons before Sunday sporting events, such as Detroit Lions, Tigers or Red Wings games.

He said the new law will resolve a Christmas predicament this year: Christmas falls on a Saturday, and the current law would forbid liquor sales from 9 p.m. Friday (Christmas Eve) through noon on Sunday, busy days for alcohol sales.

“You look at a place like Boyne ski resort with the holiday crowd they get. If they had to shut off alcohol after 9 o’clock, (Christmas Eve), that would have a significant impact,” Lashbrook said.

Grocery store owners had said free wine and beer samples in their stores will boost sales.

“It’s something we’ve wanted for years,” said Linda Gobler, president and CEO of the Michigan Grocers Association.

The Michigan Restaurant Association backed the bill because of an added provision that allows establishments to give up to two free samples to customers, especially beer and wine samples.

Restaurant association spokesman Andy Deloney said often customers will be curious about different beer brands on tap. Under current law, the bartender can describe the brands but not offer samples.

The new law will allow up to two free samples and give the customers a wider choice.

“This will be great for Michigan wineries and breweries as they try to increase awareness of their products,” Deloney said.

Deloney said that to assure the governor’s approval, the restaurants dropped their request to allow them to deliver and sell their own alcohol at events they cater off premises. He said they will seek that rule in a separate bill.

Via Detroit Free Press

Colin A. Daniels

Michigan’s “Super-Drunk” Law Goes Into Effect TODAY!

Michigan’s ‘Super-Drunk’ Laws Target First-Time Offenders

Those who drink excessively and get behind the wheel may face a sobering reality beginning Sunday.

New laws go into effect that double the jail sentences and license suspensions for first-time offenders who are convicted of having higher blood-alcohol levels while driving and expand the use of substance abuse treatment programs.

State officials say the so-called “super-drunk” legislation is designed to target those first-time offenders and cut down the 45,000 drunken driving arrests in Michigan annually.

“When you get super-drunk, it becomes exceptionally dangerous,” said state Sen. Alan Cropsey, R-DeWitt, a sponsor of the legislation.

The new law essentially creates a new class of blood-alcohol content of 0.17 percent or higher for serious first-time offenders; that’s slightly more than twice the minimum of 0.08 percent now required for a drunken driving conviction.

Those convicted of the higher blood-alcohol level will get an automatic one year driver’s license suspension and up to 180 days in jail – about twice the current levels.

They also face bigger fines of up to $700 and mandatory treatment for substance abuse.

Treatment Critical

Judge Harvey Hoffman of District 56A Court in Charlotte said substance abuse treatment for serious first-time offenders is critical to reducing the alcohol dependence and further offenses. Substance abuse treatment now is used more commonly for repeat offenders.

“The average person, if they blow a .20 and they’re up and functioning enough to operate a motor vehicle, it shows they have an elevated tolerance to alcohol,” said Hoffman, who has dealt with drunk drivers for 14 years as a judge.

“That’s pretty good proof you are dealing with someone who has a significant alcohol problem.”

The new law also is designed to expand use of breath alcohol ignition devices as a form of probation.

After the first 45 days of a license suspension, most first-time offenders could drive again as long as they install the device in their car; they must blow into the device, and the car won’t start if their breath has an alcohol level of 0.025 or higher.

Device Effective

Research shows use of the device is effective.

According to the National Highway Traffic Safety Administration, recidivism among first-time and repeat offenders is reduced by 50 percent to 90 percent while the device is installed.

“The passage of the law shows that the Legislature is comfortable with the technology,” said Brent Morton, Eaton County assistant prosecutor. “That will help the roads be a little safer.”

While the alcohol ignition technology has been used for a couple of decades, Hoffman said he believed it will be more effective as probation agents play a greater oversight role in making sure restricted drivers use the device correctly.

“A lot of them keep driving without the (devices) and without licenses, and what have done is create an unlicensed, underinsured, untreated underclass of alcoholic drivers,” Hoffman said.

via The Lansing State Journal

Neil Rockind, P.C. is extremely experienced in handling all types of driving offenses, including drunk driving and driving under the influence of drugs. If you or a loved one is faced with any type of driving offense, or an investigation by any policing agency regarding such a violation, please contact Neil Rockind, P.C. at jmellas@rockindpc.com or call our office directly at 248-208-3800 to schedule a free consultation!


We Win When Others Cannot

We received this email today from R.F., whom we defended [for 3 years] against a ridiculous OWI charge in the 48th District Court.

Neil,

I just wanted to take a moment to formally thank you for all of your efforts on my behalf throughout the trial. I cannot begn to tell you how much I admire your deep understanding and knowledge of the law…had it not been for the utilization of your skills coupled with the courage you displayed by fighting what many people considered a losing battle, I would have never been found innocent of the trumped-up charges. I look forward to hearing what (if any) options may be available regarding a future lawsuit. Thanks again for your time and I consider myself lucky not only to call you my attorney but also my friend.

Best Regards,

R.F.

People often ask how we do what we do. The answer is simple: Everyone is INNOCENT until proven guilty. R.F. is INNOCENT – it just took 3 years to reach that conclusion.

On behalf of Neil Rockind, P.C., you are welcome R.F. and best of luck to you in all future endeavors.

Colin A. Daniels