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NUTS & BOLTS OF VEHICLE LOSS
2001 ICLE ANNUAL DRUNK DRIVING SEMINAR
BY JOHN C. TALPOS, ESQ.
TALPOS & ARNOLD,P.C.
I. GENERAL OBSERVATIONS
Since changes in the law which became effective October 1, 1999 defense attorneys have had to be aware that a conviction for an alcohol related driving offense can carry vehicle loss sanctions that are imposed by BOTH the Secretary of State and the trial court.
Courts are imposing driving restrictions as a condition of bond on an increasingly frequent basis. This may include interlock devices, random screening, or a complete prohibition against driving. There is no specific authority for these conditions, but are probably within the general discretion of the court in setting bonds. They are not the topic of this discussion.
There no longer is any distinction between OUIL and any other alcohol related driving offense for subsequent offenses. 257.625(10), (23), PA 350. That means that a prior "Zero Tolerance" .02 conviction as a minor or a .08 Impaired Driving will enhance the Secretary of State sanctions no matter what the current conviction is; and may be used to enhance the court sanctions unless reduced by plea bargain or lack of evidence to a lesser charge.
- For sentencing purposes: "Prior conviction" is defined as a violation of sub- sections (1) [OUIL/UBAL], (3) [OWVI], (4) [death], (5) [serious impairment], (6) [zero tolerance], (7) [child endangerment], Section 625m [CDL], or a conviction of negligent homicide, manslaughter or murder resulting from the operation of a vehicle. 257.625(23).
- These definitions are also true for "habitual alcohol" violators. 257.303(1)(f), PA 351.
CAVEAT: The Court must either immobilize or forfeit if this is a second offense within 7 years or a third offense within ten years.
II. COURT SANCTIONS
- For purposes of this discussion, "Immobilization" means that the vehicle cannot be used but stays in the possession of the defendant. "Impoundment" means that the vehicle cannot be used and it does not remain in the possession of the defendant. The statutes use the word "Immobilized"; however, many courts are immobilizing vehicles by impounding them. Forfeiture means that the vehicle is taken from the defendant and sold.
- Immobilization does not apply if defendant is not the owner or lessee of vehicle unless owner or lessee knowingly permitted defendant to operate in violation of 257.625(2), 257.904(1), or 257.904d(4), PA 358.
- Immobilization is allowed on all 1st offenses except OWVI, zero tolerance, and CDL.
- Starts after release from imprisonment. 257.904d(6), PA 358
- Immobilization does not apply to suspensions that are support or parenting time suspension as well as some other specific types of suspensions. 257.904d(7), PA 352.
- Time Limits are:
- 1st offense - no more than 180 days. 257.904d(1)
- 2 nd offenses - Mandatory, 24-180 days. 257.904d(2), PA 358;
- 3rd offenses - Mandatory 6 mos. to 3 yrs. 257.904d(2), PA 358
- Miscellaneous Additional Complications--A person who is subject to an immobilization order:
- may sell the vehicle, but not to a relative (use tax)
- may not purchase a new vehicle MCLA 257.904(e), PA 358.
- The costs on the immobilization vary from court to court and agency to agency.
III. SECRETARY OF STATE SANCTIONS
License Sanctions
License Plate or Registration Sanctions
IV. CIRCUIT COURT FORM 266
Talpos & Arnold PC
525 E. Big Beaver
Troy, Michigan 48083
Telephone: 248-743-6800
FAX: 248-743-6801
e-mail:
jtalpos@yahoo.com
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