Michigan DUI - The Arraignment After a Drunk Driving Arrest in the Detroit area - Part 2

July 15, 2013

In part 1 of this article, we began exploring the arraignment stage in Michigan DUI cases. In my role as a Detroit DUI lawyer, meaning a DUI attorney who exclusively handles drunk driving cases in the Tri-County, Metropolitan Detroit area, I have learned that OWI (in Michigan, "DUI" really means "OWI," or Operating While Intoxicated) cases are often handled differently between one court and another, and that begins with the arraignment. As we'll see in our continuing examination, if you're arrested for a DUI in Clinton Township or Sterling Heights, for example, you most likely will not have to go to court to be arraigned as you would if your DUI case occurs in Novi, or Royal Oak.

We then noted that an arraignment serves three main purposes, and we looked at the first two of those: Informing the person of the exact charge being made against him or her, and setting bond and bond conditions. In this installment, we'll pick up by looking at the third main purpose of an arraignment, advising the charged person of his or her rights, and then we'll see how in some cases, and in some courts, the whole arraignment stage can be "waived," or skipped completely.

Handy Judge 1.2.jpgAs I just noted, the third main purpose of an arraignment is to advise a person of his or her rights. Either the person will be given a form, called an "Advice of Rights," to read and sign, or the Judge or Magistrate will verbally advise the person of his or her rights, most often, just by reading them off the Advice of Rights form. In the real world, this comes down to a more detailed outline of the "rights" you hear read on TV and in the movies. Principal amongst these rights is the right to remain silent, to be presumed innocent, and to have an attorney appointed for you if you cannot afford your own.

In practice, most people acknowledge understanding these rights without having the faintest idea of what they've just heard or read. This isn't anything to worry about, and is really not much different than when someone signs a "consent" form for treatment before having a medical procedure. Even so, as much as signing a consent form is a prerequisite to treatment, acknowledging that you've been advised of your rights is a perquisite to moving forward in a DUI case, or any criminal case, for that matter. The real "take away" from your rights is that you need to "get a lawyer." To the extent that anyone has any kind of pre-existing or useful understanding of his or her rights, it should be to remain silent (beyond pleading "not guilty") and not to do or say anything until you get an attorney.

It is important to differentiate these constitutional rights that must be acknowledged in court from the "rights" that the police are supposed to read at the time of your arrest. In fact, one of the most frequently misunderstood issues surrounding a DUI arrest is that the police didn't advise you of your "rights" when you were arrested. In a DUI case, your arrest rights, principal amongst them being the right to remain silent, don't really matter. By contrast, the police are required to advise you of your chemical test (breath or blood test) rights, but your arrest rights and chemical test rights are fundamentally different than the constitutional rights the Judge or Magistrate must address at your arraignment.

Whether they're read to you, or you are instructed to read them before signing it, those rights listed on the Advice of Rights form are as follows:

1. If you require special accommodations to use the court because of disabilities or if you require a foreign language interpreter to help you fully participate in court proceedings, please contact the court immediately to make arrangements.

2. You have been brought to court on a misdemeanor charge. You have the following basic rights:

a. To plead guilty or not guilty or to stand mute. If you stand mute, a plea of not guilty will be entered. You may plead no contest with the permission of the court.
b. To have a trial by jury.
c. To have the assistance of an attorney.

3. You have the right to an attorney appointed at public expense if you are indigent (without money to hire an attorney) and if the offense charged requires a minimum jail sentence, or the court determines that it might sentence you to jail.

4. You may have to repay the expense of a court-appointed attorney.

5. If you have a trial, you have the following rights:

a. To call witnesses to speak for you at trial. You may get an order signed by the court to require witnesses to come to court.
b. To see, hear, and question all witnesses against you at trial.
c. To be a witness for yourself or to remain silent. If you choose not to be a witness on your own behalf, the prosecuting official may not comment on your refusal to testify.
d. To be presumed innocent until proven guilty beyond a reasonable doubt.

6. If you plead guilty or no contest and your plea is accepted, you will not have a trial of any kind and will give up the rights listed in items 3 and 5 above.

7. You have the right to be released on bond.

8. If you are now on probation or parole and you enter a plea of guilty (or no contest) or a finding of guilt is made by judge or jury, it may result in a violation of your probation or parole.

9. You can be sentenced up to 93 days in jail or fined up to $500 plus costs, or both unless otherwise advised by the court. (The court will advise you if there is a minimum jail sentence.)

10. Fines, costs, and other financial obligations imposed by the court must be paid at the time of assessment pursuant to MCR 1.110.

11. An appeal to circuit court may be taken within 21 days from date of sentence or as permitted pursuant to MCR 6.625(B). If the sentence includes incarceration and if you wish to file an appeal but are financially unable to retain a lawyer, the court will appoint a lawyer to represent you on appeal, if the request for a lawyer is made within 14 days after sentencing.

In most Metro Detroit DUI cases, you will be released from jail without having been arraigned first. Sometimes you'll be handed a notice telling you to contact the court within a certain number of days, and other times you'll be told that the court will contact you. In either case, your arraignment will be scheduled at some future date.

Here is where things get a bit interesting: In many local Detroit-area courts, if you hire a lawyer before your arraignment date (this, of course, assumes that you were not arraigned before you were let out of jail), you can skip the whole thing because your lawyer can file papers with the court "waiving" your arraignment. In such a case, there are no bond conditions handed out, nor any money required to stay out of jail beyond what, if anything, you posted at the police station, at least until further order of the Judge at a subsequent court date. And to be clear, there is almost never a request for any further bond monies.

If you arraignment is waived, you will not have to go to court and stand before a Judge or Magistrate and be told of the charge against you, nor will you have to enter any kind of plea, or say "not guilty" or anything like that. Instead, at least in many of the courts in Macomb, Oakland and Wayne County, as your DUI attorney, I can simply file something with the court that will result in a "not guilty" plea being entered for you, and you won't have to post any money or be otherwise be ordered to do or not do anything. The underlying idea is that, as your DUI lawyer, I will explain the charge you're facing and your various rights.

Some courts, however, do not allow an arraignment to be waived. For example, in DUI cases, the 40th district court in St. Clair Shores does not allow arraignments to be waived. If you've been arrested in the Shores for a DUI, you will be required to show up in court to plead "not guilty." You can also count on being ordered to test for alcohol, as well. This requirement that almost everyone arrested for OWI be required to submit to some kind of regular alcohol testing to prove compliance with the "no drinking" condition of bond is a primary reason that the St. Clair Shores court won't allow arraignments to be waived in DUI cases.

As we've seen, then, an arraignment serves 3 main purposes:

1. To inform a person of the charge against them and the potential penalties,
2. For a bond to be set and any conditions of bond to be imposed, and
3. To advise the person of his or her constitutional rights.

In many DUI cases, you can skip the whole arraignment step by hiring a lawyer before that date. As your DUI attorney, I will file the appropriate papers with the court so that a "not guilty" plea is entered on your behalf, and you won't have to show up in court, post any money, nor be ordered to (or not do) anything in the meantime.

As we noted earlier, the arraignment stage formally "opens" a DUI case, whether the actual proceeding takes place, or it's waived. It is after the arraignment that the real work on the case begins, and we begin doing things like gathering and examining the evidence. Stay tuned, because we'll be getting to that, and making a detailed inquiry of every step in the process of a Michigan DUI in upcoming articles.