A North Carolina DWI refusal is not substantially similar to a Michigan OUIL
Ms. Oxendine had a December 1990 North Carolina DWI arrest. When requested to take the state’s implied consent test, she refused to provide a breath sample. The NC police officer in charge of the cases apparently did not seek a forcible blood test, to see if she was “over the limit,” which (in 1990) was 0.10 grams percent.
Her case was resolved by a guilty plea to driving while intoxicated, in March of 1991. This is an alternative TYPE of DWI from North Carolina’s driving while having a BAC level of 0.10 grams percent or more.
In June of 2007, Ms. Oxendine was in Michigan, and was pulled over for OWI, or operating while impaired. This time, she took the state-administered breath test, and was over the legal limit, which was then 0.08 grams percent. He OWI lawyer in Michigan challenged whether the difference in TYPE of intoxicated driving charge (i.e., being too impaired to drive safely in NC), versus operating with an unlawful alcohol level of OUIL in MI.
This case is interesting on 4 good legal points:
- The Michigan OWI law called for license revocation if any driver had another driving under the influence “category” offense within 7 years. If Michigan and North Carolina used the “measurement” method in GA, which is “date-of-arrest to date-of arrest, her two arrests were more than 7 years apart. Yet, both MI and NC apparently use the less favorable measurement period of “date-of-conviction, to new date-of-arrest.” So, she faced much more harsh penalties, due to that second offense DUI. Lesson learned: Don’t count on the drunk driving law of YOUR state to be the same as the drunk driving laws of a different state.
- Because the elements if the North Carolina DWI law, with no test, are substantially different from the Michigan OUIL statute, that merely requires that the accused person operate a vehicle at a relevant time when his or her blood alcohol level exceeded 0.08 grams percent. No proof of IMPAIRMENT was necessary.
- Oxendine, by refusing, IMPROVED her outcome in Michigan. Had she given a breathalyzer test over a 0.08 grams percent, then the two statutes would have been ruled to have been substantially similar. A footnote in the MI Court of Appeals ruling stated: “Oxendine willfully refused to submit to a chemical analysis of her alcohol level on December 8, 1990. Thus, it appears that no chemical analysis of the level of alcohol in Oxendine’s blood, breath, or urine was ever conducted in relation to the North Carolina incident. We recognize that it is ironic and quite unfortunate that Oxendine’s apparent refusal to submit to a chemical analysis in connection with the North Carolina crime may well have worked to her benefit in the circumstances of this case.”
- The last issue worth mentioning is that the legal limit dripped (in Michigan) from 0.10 to 0.08 in 1993, but she was held to the new, lower standard, despite the fact that both MI and NC had statutes calling for 0.010, as being “over the limit” for driving with an unlawful alcohol level, or OUIL, as denominated in Michigan.
After her MI conviction of OUIL, the Michigan Secretary of State (which oversees driver license issuance and removal in that state) revoked Oxendine’s license, on the basis that her first DUI conviction for impaired driving in North Carolina six years earlier gave her two specified driving offenses within Michigan’s seven-year “lookback” period for purposes of causing the revocation statute. This adverse driver’s license ruling was appealed to the Oakland County Circuit Court, and that judge overruled the Secretary of State, and set aside Oxendine’s revocation. The Secretary of State in MI sought to reverse this, by appealing further, to another appellate level, at the Michigan Court of Appeals, The case ended here, where the intermediate appellate court agreed with the Oakland County judge, that the two statutes were not similar enough to trigger the more punitive license revocation consequences.
Secretary of State v. Oxendine, 602 N.W.2d 847 (Mich, Ct. App 1999)