Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 1

December 23, 2013

Some of my blog articles and website sections are really just detailed examinations of a particular aspect or two of a Michigan DUI case. Sometimes I'll focus on the evidence, or the traffic stop, or a bond condition like having to test for alcohol (and sometimes drugs) while the case is pending. In other articles, I will examine the mandatory alcohol-screening test that's part of the court process in every drinking and driving case before the sentencing, or even the sentencing itself. It's been a while, however, since I've taken a step back and done a more general overview and looked at the big picture of what's really important and "what happens" in a typical DUI case.

This article will attempt to do that. In particular, and because I limit my DUI practice to local cases pending in Macomb, Oakland and Wayne Counties, we'll examine the 5 most important things about a Michigan DUI based upon my real world experience in these Detroit area courts. To do this properly, we'll divide this article into 2 installments. The first, (and shorter) installment will cover 4 of those 5 topics, and the second and longer installment will focus on the 5th, and what I consider most important topic.

Rainbow 1.2.jpgAbout the most important "big picture" thing to first point out is that a DUI charge does not mean going to jail, nor does it represent the end of the world. When I looked around on the internet and at many of the legal sites of lawyers that handle DUI cases, a few things struck me, but none so much as the "doom and gloom" that seems to surround this whole subject. It seems that it has become a marketing tactic for some lawyers to try and scare the reader nearly to death, and then offer their services as the best way to save the person from all the terrible things that can happen.

This kind of "scare tactic" approach must work to at least some extent (why else do so many lawyers do it?), but the honest truth is that, almost without exception, you're not really at risk to go to jail in a 1st offense DUI case in the first place. If the only thing you're worried about is getting locked up, then the $1500 cut-rate lawyer will do the same thing as the $10,000, over-priced lawyer. This is so important that it should be repeated: Almost without exception, you are not really at risk to go to jail in a 1st offense Michigan DUI (OWI) charge. This is the reality no matter what lawyer you hire. While I am in business to make money, I have no heart to lie and pretend that even with my special skill set, it will be the difference between your going to jail or not. Especially in a 1st offense Detroit area DUI, the truth is that you are almost certainly not going to jail.

The surprising truth is that even in a 2nd offense Michigan DUI, jail can very often be avoided, if things are handled properly. The point I'm driving at is that there is little to be learned, and little value to be had, from any lawyer that talks about or focuses too much on potential negative consequences. In the realm of DUI cases, there are many scary sounding and theoretically potential legal consequences, but in the real world, most of them never come to pass, and certainly not all of them together. It is a given that a person facing a DUI - whether a 1st, 2nd or even 3rd offense - is frightened. It seems to me that if you're in a position to help that person realize that some of his or her apprehension is misplaced, you ought to do that, and help calm them down, rather than working them all up and making things even worse.

High BAC charges are a recent introduction into Michigan law. While a high BAC charge sounds scary, the actual "enhanced" penalties fall far short of catastrophic. About the biggest actual risk in a high BAC charge is that your license will be suspended for 45 days. Again, in terms of "real world" outcomes, I've never had a high BAC client go to jail, and have been able to reduce the high BAC charge to something less severe in the vast majority of cases I've handled. In other words, if you've been charged with high BAC (sometimes called "OWI enhanced"), and even if the evidence in your case is rock solid, it is quite likely that I will be able to negotiate the charge down to something that avoids the theoretical, potential license sanction, anyway. This is why I don't charge more money for a high BAC charge than a standard 1st offense DUI.

Beyond all the hype about the enhanced Michigan high BAC charge, my tour of the web provided no discussion of the actual role of a person's BAC score in his or her case. Several years ago, I wrote an article about how a person's BAC score says something about them, at least in the court system. This is a reality that doesn't result in a lot of favorable things for lawyers to say, but I find it a complete disservice to anyone facing a DUI to not explain, up front, how your BAC score will shape how you will be viewed (and even treated) throughout the case by the whole "system."

The bottom line is this: If you are arrested for a DUI and your BAC score is high (forget about the high BAC charge), you will be seen as far more "risky" than if your BAC score was lower. In Michigan, the threshold for being charged with a DUI (technically called OWI, which stands for "operating while intoxicated") is .08. If you test out at .11 or .13, you're invariably going to be perceived as less "serious" than someone whose BAC score comes back as .19 or .21. In the real world (yes, I love that phrase...), Judges and lawyers and police and probation officers and prosecutors talk about DUI cases in terms of a BAC score. Thus, if I am talking shop with one of my lawyer friends and I want to gripe about what happened someone's DUI case, he may interrupt me and ask "what'd he blow?" No matter how you cut it, having a high BAC tends to indicate a tolerance to alcohol. A tolerance develops from drinking. A lightweight, once-a-year drinker will be plenty drunk at a .12. He or she usually cannot drink enough to get to a .20 BAC. Judges and probation officers become very skeptical (with generally, but not always, with good reason) when a person with a higher BAC scores tries to assert that he or she doesn't drink very much.

A DUI case needs to be handled and prepared with this kind of information in mind. You cannot ignore a higher BAC score. If things are done correctly, then the impact of those numbers can be minimized. Here is where impressions (what "seems") and reality (what "is") are very different. A high BAC score "seems" worse. In reality, and somewhat ironically, from the point of view of a substance abuse counselor, for example, a single instance of an elevated BAC score (as in the case of a DUI charge) is little or no significance. This is something that is dramatically important, but is really only of any recognizable value to the lawyer, like me, with a clinical background or education in the field of alcohol and addiction issues.

Another thing I noticed missing, as I checked around for "legal" information, was a pretty consistent lack of any acknowledgement of the emotional and personal toll a DUI charge has on the person facing it. In other words, beyond being frightened of things that aren't going to happen, most people go through a kind of emotional roller coaster that starts as they are placed in the back of the police car, and can last throughout the the case. To some people, it can feel like a big, black cloud has formed over their head, and is following them around. It can seem like there is no light at the end of the tunnel. While these feelings are normal, they arise precisely because a person does not know what is really going to happen to him or her. In some cases, people can't believe how bad things are NOT going to be until all those bad things they were worried about don't happen. Much of the emotional stress of a DUI will be relieved after I have carefully explained things and dispelled your fears.

Explaining things clearly and answering questions fully takes time, however. Normally, my first meeting with a new DUI client takes about two hours. While I have a lot to explain, you very likely have a lot of questions. An important part of my job is to make sure you understand what's going on at every point throughout the case. You should never feel funny about asking questions, or even re-asking them for better clarification. Some lawyers take the approach that all you need to do is let them handle things and not worry. Given the way that I communicate (this article, my blog and my website make clear that I'm a "talker" and not the "strong, silent type"), my clients tend to be individuals that prefer my style as opposed to the "man of few words" type. Besides, I've always thought that the first thing to assess about a lawyer is his or her ability to communicate effectively.

Okay, so we've established that jail is probably not on the menu in your DUI case, nor is the end of life, as you know it. Even so, a DUI certainly doesn't represent good news. Whatever else, no one is happy get arrested for any Michigan drinking and driving offense. So what are we really looking at in terms of what will actually happen to you?

First, your DUI is going to be expensive. You may have had your first taste of that getting the car out of impound. In addition, a good DUI lawyer doesn't come cheap; I charge $2000 for a 1st offense DUI case. As always, the best value usually lies in the middle of the price range. Short of conducting a full-blown trial, even if there are "issues" in the case that need to be litigated (this means extra work, like challenging the evidence in court), a 1st offense DUI should not cost more than a full set of braces for your kid. By the same token, lowball or "cut rate" legal services generally produce cut-rate results because the theory behind those operations is to pull in the highest volume of cases and do the least work possible. In life nothing that's ever the "best" is the "cheapest."

Second, beyond legal fees, the court is going to reach deep into your pocket. A 1st offense case will generally cost you anywhere from $800 to $1200 in fines and costs. If the Judge puts you on probation, you can add another $480 to $960 to that. You'll also be paying for any testing to which you must submit, and any classes or counseling that's ordered. Car insurance rates will go up, probably very substantially. There are fees to be paid to the state, as well. All totaled, a 1st offense DUI will cost anywhere from $8000 to $10,000 in real money over the course of the next two or three years.

Third, something will happen to your driver's license. Unless your DUI case is dismissed, or "knocked out," the Michigan Secretary of State will impose some kind of sanction on your driver's license. The real goal here is to make sure that you don't actually "lose" your license. Most people are concerned about at least being able to drive to work, and that is always one of, if not the most important priorities I have when handling a case. In the usual 1st offense case, I am able to work things out so that my client never actually loses the privilege to drive. Typically, the sanction is minimized to a "restriction" of the person's driver's license for the legal minimum of 90 days, during which the person can legally drive at any and all hours during the 24 hour day for work (to, from, and for any employment-related reason), to and from any kind of schooling, to and from any necessary medical treatment, to and from any kind of counseling or support group, and to and from anything else that the court orders as part of the DUI case.

A restricted license does not allow for any pleasure driving. Thus, for the short period of a restriction, you can't drive for anything outside of the above-listed reasons. Still, there are a million ways to be legally "creative." This is where your lawyer's experience can make a difference, particularly if you employ the services of a DUI and Michigan driver's license restoration lawyer, like me, who spends the almost all of each day dealing with driving laws. Whatever else, the goal and the result of "saving" a person's driver's license may take some work, but are usually merged successfully.

Fourth, you're certainly going to be inconvenienced by having to deal with this stuff. That's kind of the point the state is trying to make. Very often, a person will want to make clear how busy he or she is, or how demanding their job can be of their time. The court doesn't care. This needs to be repeated: If you are a brain surgeon, there may come a point when you'll have to adjust your operating schedule to work around the court's schedule. A more veteran lawyer, like me, will know how to use a busy schedule to your advantage, but it cannot be used as a "free pass" so that you can just explain to the Judge that you just don't have time to deal with the case.

These four things are important. If you really want to make things better, you're going to have to hire a real DUI lawyer. Unless the case just "goes away," this will be an expensive proposition. Your driver's license will be affected, but can be saved. And all of this is an inconvenient pain in the rear. It is designed to be that way. A big part of my job as a DUI lawyer is to minimize these things.

We'll leave off here and begin, in part 2 of this article, by looking at the 5th and single most important aspect of a Michigan DUI case - the sentencing, meaning what the Judge actually does to you, and how that is primarily affected by the results of a mandatory (and written) alcohol screening test you will have to take.