Super Drunk – High BAC DUI/OWI
In 2015, Michigan added the Driving with a High BAC offense, or “Super Drunk” Driving. Obviously, it was intended to discourage driving with a high BAC and punish those who do harshly. This offense is not always prosecuted by municipalities because if they do not carry this charge in their ordinance, they will not receive the money generated from the fines.
Therefore, it is prosecuted more often by the county prosecutors.
The maximum jail term for high BAC is two times a regular offense. 180 days in the maximum jail for super drunk. This does not mean jail is mandatory, but it is more likely.
The license sanction for this conviction is one year of a restricted license with the first 45 days hard suspension (no restriction). A breath alcohol device must also be used during the restricted license period.
Is .17 a high BAC and does it reflect a drinking problem?
The average BAC on a DUI case is approximately .12. .15 BAC is considered high by most courts and probation officers and a .17 is considered to be extremely high. It is believed that a person cannot even reach that level without having a high tolerance. There are even studies that prove this fact, but everyone is not the same.
However, the court, prosecutor and probation department will always believe that any person who blows that high is definitely an alcoholic.
Strategies for Defending a High BAC DUI/OWI
High BAC cases often require a different strategy. The chemical test must be evaluated differently. Breath test instruments are calibrated at a .08 grams per 210 liters of breath standard. They are not calibrated at any other level (although they are simulated at .05, .10 and .20). Therefore, the higher the result, the less accurate the instrument’s response.
A result of .17 or higher has a larger margin for error and uncertainty. Therefore, a defense strategy may include these scientific arguments. Further, an evaluation of the standard field sobriety tests is even more important (not that they are less important otherwise), because a person who passes the standard field sobriety tests is direct evidence that they do not have a high BAC. Regardless of a person’s tolerance, it would be very difficult, if not impossible, to do well on the tests. Therefore, this could then create favorable evidence.
Due to the presumption that the chemical test is fairly accurate, prosecutors are less likely to reduce a High BAC case to a reckless or careless driving charge. That does not mean it can’t be done (Barton Morris has done it multiple times).
In order to do that, it is necessary to be able to demonstrate the chemical test is not reliable or was in error. This can be done in a variety of ways, but generally only by a DUI defense attorney specialist or forensic lawyer-scientist.
Recommendation for a person charged with High BAC
- Hire a lawyer who has been certified as a Forensic Lawyer-Scientist by the American Chemical Society (ACS).
- Obtain a substance abuse assessment and follow all recommendations.
- Do not plead guilty without a proper evaluation of the evidence.
- Make sure your lawyer obtains the booking room video, which must be obtained shortly after the offense date. Otherwise, it will be destroyed.
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