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Usually, DUI in Michigan involves a complete loss of mental or physical faculties because of substance intoxication. This substance could be alcohol, prescription drugs, marijuana, or pretty much anything else.
Operating While Visibly Impaired (OWVI) is a little different. To obtain a conviction under Michigan law, prosecutors must only show that the defendant was “visibly impaired due to the consumption of alcoholic liquor, a controlled substance, or other intoxicating substance.” The volume of alcohol consumed is usually the difference between intoxication and impairment. Most people are intoxicated after they have three or four drinks. But alcohol impairment begins at the first drink.
Because of this difference, an OWVI is more complicated than a DUI, as outlined below. So, if you face such charges, you need an experienced Detroit DUI lawyer in your corner. OWVI charges are serious, but there are several ways to resolve them successfully.
Why Do Prosecutors File OWVI Charges?
In general, OWVI is an alternative to DUI if the evidence is weak. For practical purposes, OWVI is usually a fallback offense or a statistical offense. Both kinds of cases are common during high traffic enforcement periods, like a STEP (Special Traffic Enforcement Program) campaign. These efforts usually have clever marketing nicknames, like “Drive Sober or Get Pulled Over.”
Typically, during STEP campaigns, supervisors pull officers off their regular shifts and beats, redeploy them to a certain area of town, and instruct them to write as many DUI or other targeted citations as possible. A federal government grant usually pays for officer overtime and other program expenses.
So, to justify all this effort and money, officers often overreach. In other words, they detain and arrest motorists who are impaired but not intoxicated. That difference means OWVI charges instead of DUI charges.
The evidence in an OWVI case is inherently weaker than the evidence in a DUI case, at least when it comes to intoxication. Frequently, the evidence is so weak that it cannot even support an OWVI conviction — more on these evidence issues below.
On a related note, prosecutors often don’t file OWVI charges, at least initially. Instead, a Detroit DUI lawyer pleads down a DUI case to a less-serious OWVI case. More on that below as well.
Evidence Issues
A few OWVI, DUI, and other cases start at sobriety checkpoints. These roadblocks are legal in Michigan if they adhere to specific legal requirements.
But most of these cases begin with a traffic stop. Most drivers cannot travel more than a few blocks without committing at least one moving violation. Furthermore, many drivers commit traffic violations before pulling out of the driveway. Examples include an expired inspection sticker, non-functioning taillight, or an air freshener, crucifix, or other item dangling from the rearview mirror.
Legally, these things amount to reasonable suspicion, which is basically an evidence-based hunch of criminal activity. This standard of proof, which is very low, is the standard required to detain a motorist.
Occasionally, and especially during STEP campaigns, officers put the cart before the horse. They spot a motorist who “doesn’t look right” and follow the motorist until, as outlined above, the driver commits a traffic infraction. Technically, these stops are legal. But they do not sit right with many jurors. So, the prosecution often starts on the wrong foot.
The intoxication investigation is next. Usually, officers look for physical symptoms of alcohol consumption, such as bloodshot eyes, slow reflexes, and slurred speech.
The same low reasonable suspicion standard applies at this point. So, if there is a hint of alcohol consumption, officers usually proceed to the next level. This next level usually involves the three approved Field Sobriety Tests, which are:
Horizontal Gaze Nystagmus
During the DUI eye test, subjects must track moving objects with their eyes without moving their heads. If their pupils move involuntarily at certain angles, they probably have nystagmus. However, alcohol or drug use is not the only cause of nystagmus. Substance impairment is not even the leading cause. The leading cause of nystagmus, or lazy eye, is a childhood brain injury. Usually, the symptoms are so mild people don’t know they have a lazy eye until they take an HGN test.
Heel to Toe Walk
This test, also known as the Walk and Turn, requires defendants to walk a straight-line heel to toe, forward and backward, without using their arms for balance. Roadside HTW test conditions are usually quite bad. Subjects who wear anything other than athletic shoes have a hard time with this test. Additionally, most defendants must walk an imaginary line, as opposed to an actual line. Finally, there are many visual distractions, such as the flashing squad car strobe lights in the background,
One Leg Stand
For this test, subjects must elevate one leg for about fifteen seconds and stand perfectly still all the time while they keep their arms at their sides. It is almost impossible for anyone with any mobility impairments to complete this test perfectly, whether drunk, sober, or somewhere in between. Additionally, most officers administer this test last for a reason. By this time, defendants are physically and mentally fatigued. So, they naturally do worse on this test.
Since there is a difference between impairment and intoxication, it’s harder for a Detroit DUI lawyer to successfully undermine these test results in an OWVI case. However, if questionable results are combined with a questionable stop, as outlined above, an effective defense is possible.
OWVI matters never involve Breathalyzer or other chemical tests. These tests are a prosecutor’s biggest weapon. The conviction rate in test cases is about twice as high as the conviction rate in non-test cases.
Resolving An OWVI Matter
If the Field Sobriety Test evidence is weak and prosecutors cannot use their biggest gun, they are often willing to offer favorable plea bargain agreements in OWVI cases. The same thing applies in a DUI case that is reduced to OWVI. Only some jurisdictions allow prosecutors to reduce charges in such a manner. The direct consequences of an OWVI and DUI are much the same. They are both misdemeanors. But the indirect consequences are different. For example, vehicle immobilization and an Ignition Interlock Device (IID) are mandatory in a DUI. But these things are discretionary in an OWVI. A partnership with an experienced Detroit DUI lawyer is the best way to successfully resolve drinking and driving charges in Michigan.
Experienced OWVI Attorneys In Michigan
Charged with OWVI or another alcohol-related offense in Michigan? If so, you might face severe punishment, including a jail sentence, fine, loss of driving privileges, and other collateral consequences. For these reasons, it is crucial that you consult an experienced Michigan OWVI lawyer who can help you understand how to best proceed. George Law is devoted to resolving your OWVI charges on the most favorable grounds possible. We are on your side and will work tirelessly to protect your rights. If you have been charged with an OWVI, get in touch with George Law for a free consultation by calling (248) 470-4300 or contacting us online.