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Criminal Law/Court Ordered Breathalyzer 8 Years After DUI


QUESTION: Hi Jeff!  My girlfriend was convicted of a DUI eight years ago in the state of Michigan.  She was in her early 20's, and she had only had one drink, but it was enough to put her over the legal limit.  Even though it was her first offense, the judge threw the book at her.  She spent almost a week in jail, which was a very traumatic experience for her.  She had to undergo psychological counseling, attend DUI classes, wear an ankle bracelet, do community service, probation, etc.  The works.  After a few years, she had finally managed to finish out her entire sentence.  She was also under the impression from her lawyer that the offense had been expunged.  Since the day she got out of prison till today, she has never even once had a drink before driving...she is very strict about it.  The extreme sentencing had a very long lasting effect on her.  She is now in her 30's and a wonderfully moral person, and a great role model to her friends and family.  

Anyway, this past week she went to court to see if they would drop a driving with expired tags charge (which apparently is very common there according to her lawyer).  The tags were only a couple of weeks expired.  When she made her request, the judge said that she would gladly drop the charge since she had never been cited for driving without a registration before.  However, she said that she sees that she has a previous DUI conviction.  What she said after that was something like this, "You have a drinking problem.  For my own safety and the general safety of the public, I'm mandating that you have to take a court ordered breathalyzer test every day for the next 60 days.  You are also not allowed to leave the state without my approval."  So now, eight years later, she has to call a phone number every single day and see if she has been randomly chosen to be tested that day.  If she is, she has to have the testing completed before 9am.  There is no information anywhere explaining what the consequences are if she misses a day, or if she had alcohol in her bloodstream (not that she would).  To make matters worse, she has a major trip to Las Vegas planned with her family for her brother's 21st birthday (a trip that they began planning three years ago).  You can imagine her fear that the judge will laugh in her face when she requests that one.  She paid for the trip a while ago and of course, it's all non refundable.  The cherry on top is that the breathalyzer costs $10 every single time she gets called in!!  She lost her job last year and is living paycheck to paycheck...this is a major expense.  

As you can imagine, she is under a lot of stress and she is wondering what her options are.  She served her sentence almost a decade ago and she is one of the most responsible people I know, yet she is being treated like a criminal.  Can this judge really put her on this bizarre random probation out of nowhere like this?  Is this mandated breathalyzer a sentencing?  Isn't this double jeopardy?  Any information you can give me would be extremely appreciated.  Thank you!

ANSWER: David,

Either you are withholding a few pieces of the puzzle or this is an extreme overreach by the Court.  I am not sure.  What I am sure of is that no judge can order chemical testing outside of criminal charges because of their personal opinion.  I know that money is tight but it sounds like she needs a lawyer who is going to clean this up for her.  Aside from having the chemical testing order stayed a good attorney can actually petition the court to have your GF's DUI conviction expunged.  I have never heard of a ten year probation period resulting from a first time DUI offense.  That is bizarre.  If your facts are true then retain a competent criminal defense attorney to work for her and get her out from underneath this burden.  FYI, most attorneys offer a free initial consultation to see if they can or want to help.  Ask for one and then see what they can offer to do for her.  


---------- FOLLOW-UP ----------

QUESTION: Thank you so much Jeff!  Yes, the information is all accurate.  I would have no reason to hide anything (unless of course there is something I'm forgetting).  That would only make your answer to me invalid.  She also had her sit in the courtroom for three hours and watch every DUI conviction that she had set up for the morning.  When she went to the clerk to retrieve her paperwork, the lady behind the counter said that this judge is known for her extreme treatment of people with DUIs on their record, and that she's "insane".  I'm definitely going to have her see a defense attorney for a consultation.  

I do have two follow up questions.  First, is there any possibility that in the state of Michigan that chemical testing can be ordered outside of criminal charges due to some odd state law?  Second, she is under the impression that she had gotten her DUI expunged already.  If she had, would the judge had even been able to see it?  Thanks again for all your help!


Not that I can find.  The judge should not have been able to see the charge.  It has been my experience though that sometimes the arrest will remain on the "rap sheet" so to speak.  I have seen where charges were expunged but the charge still remained on the NCIC database maintained by the FBI.  True expungement removes everything.  That is why due diligence is important to request removal from such databases with a court ordered expungement.


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Jeffrey Hauck


I would welcome the opportunity to answer questions relating to or related to the field of criminal law.


Criminologist. Professor of Criminal Justice. Licensed Private Detective with expansive clientele base encompassing hundreds of cases. Donates resources and time to the Children's Rescue Network in Orlando, FL.

Associate of Science; Bachelor of Arts; Master of Science, Doctor of Jurisprudence Degree.

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