Articles Posted in DUI

In my previous DUI article, we looked at pre-trials.  We learned that there can be multiple pre-trials in a DUI (or any criminal) case, and that the ultimate goal of a pre-trial is to work out a plea arrangement that will avoid a person actually holding a trial on his or her charge.  It was also pointed out that trials are rare in DUI cases, and that the overwhelming majority of drunk driving charges are resolved through a plea.  But what is a plea?  How is a plea different from a plea bargain (if it is)?  What about a sentence bargain?  In this article, I want to provide straight answers to these questions and explain how lawyers use pleas, plea bargains and sentence bargains to resolve DUI and criminal cases.

First, let’s define things a bit.  In this article and in the larger world, the word “plea” is generally (but not always) used to mean a plea of guilty to some charge, even if not the one originally brought.  In my recent 2-part article about the arraignment stage of a DUI case, we were reminded that when a person is first charged with Operating While Intoxicated (OWI), he or she should always plead “not guilty” at the arraignment.  In the broadest sense (as it relates to DUI and criminal cases), a plea is an answer, or response, to a charge.  Therefore, we begin a case by pleading not guilty to the original charge that’s brought.   We’ll get into this more later, but so that the reader doesn’t fear this will some long, boring and useless article about legal procedure, the primary reason a person should plead not guilty at his or her arraignment is because very often, a plea bargain can be worked out down the road so that the person does not wind up being convicted of that original charge.  For example, in the case of an OWI charge (which carries 6 points, a fine of up to $500, and a 6-month suspension of the driver’s license with NO driving whatsoever for the first 30 days, followed by 5 months of restricted driving, like to and from work), it is common for the lawyer to be able to negotiate with the prosecutor so that the client pleads to a less severe charge, like Operating While Visibly Impaired (usually called “Impaired”), which only carries 4 points (as opposed to 6), a fine of up to $300 (instead of $500) and will merely restrict a driver’s license for 90 days (rather than the tougher suspension that is imposed for an OWI).  In other words, you start by pleading “not guilty” so a better deal can be worked out later on.

Not all pleas, however, are plea bargains, but all plea bargains and plea deals (a “plea bargain” and a “plea deal” are the same thing) are pleas.  Thus, someone might say that a particular case was resolved by a plea, but that may or may not include a plea bargain, or plea deal.  And before we sort this out, here’s one more thing to throw in the mix:  Sometimes, the prosecutor is unwilling to allow a plea bargain, and some courts, to kind of make up for that, will work out a sentence bargain and agree to certain specific terms for what will ultimately happen to the person, like an agreement for no jail.  In most cases, a plea is negotiated (lawyers most often say “worked out”) between the prosecutor and defense lawyer at a pre-trial meeting, and then it is “put on the record,” meaning the resolution is finalized by the Judge in open court.

In my previous, 2-part DUI article, we looked at what happens at the arraignment in a drunk driving case.  In this article, we’ll examine the next step in the Michigan DUI (and criminal case) process, called a pre-trial.  It is important to note that a DUI case is a criminal case, albeit one that is somewhat specialized.  Therefore, pretty much everything that we’ll look at here in the context of DUI cases applies, at least generally, to all other types of criminal cases, as well.  We should also note that although most courts send out a notice for a pretrial date, a few courts issue a notice for what is titled “arraignment/pre-trial.”  To keep things easy, a person can forget the word “arraignment” on such a notice and just show up in court with his or her lawyer, because the court date will simply be, for all practical purposes, a pre-trial.

In my DUI and criminal practice, I often find a lot of apprehension and confusion about the term “pre-trial.”  At its most basic, a pre-trial is pretty much what it sounds like – a conference before an actual trial. Thus, we get the term pre, meaning prior to, trial.  If that was all there is to it, then I could sign off on this article right here and say, “mission accomplished.”  This simple description of a pre-trial, however, misses a lot.  As we begin our examination of pre-trials, perhaps one of the most important differences to point out between it and the arraignment stage is that while an arraignment is essentially a one-shot, single-purpose proceeding (and one that is often waived, or skipped), the pre-trial itself can serve multiple purposes, and play many roles (some of them rather important) in the overall process of resolving a drinking and driving or criminal case.

A common misconception is that the pre-trial is a one-time proceeding in the court process.  There can be several pre-trials in any given case.  A “Pre-trial” can be identified as a stage or step in the court process only to the extent that it describes a meeting of the parties before a trial.  And here’s something to calm a lot of people down – trials are rare in DUI cases.  In Michigan, DUI trials are, statistically speaking, hopeless losers.  What does all this mean?  It means that in all DUI cases, the pre-trial is important; it’s where the action is, and that it will be where pretty much every charge gets worked out.  So how does that happen?

In part 1 of this article, we began our examination of the arraignment in Michigan DUI cases.  Our purpose in this 2-part article is to look at what happens in the real world, and what a person going in for an arraignment can expect after a DUI arrest.  As I noted in the first part, not all drinking and driving charges require that a person actually go to court for the arraignment, and, as a DUI lawyer, I can waive (essentially meaning cancel) it in many cases so that my client doesn’t have to show up.  We learned, in part 1, that the legal purpose of the arraignment is to inform a person of the charge or charges being brought, advise him or her of their constitutional rights, explain the various bond conditions, including that there is to be no drinking or drug use while the case is pending, set a bail or bond amount, if any, and then set up a “testing” schedule that will require the person to provide breath and/or urine samples at specified intervals to make sure he or she isn’t drinking or using any drugs.  In this second part, we’ll begin by looking at the standard conditions of bond that apply in every DUI (and every criminal) case in Michigan, and then we’ll move on to look at the testing requirement.

timothy-mcginty-judgejpg-a0d5cf2c7ae03aa6A quick history lesson may help put things in context here:  Going back over 25 years, to when I was a new lawyer, there was no such thing as testing as a condition of bond because there was no such thing, at least in 1st offense DUI cases, as a “no-drinking” requirement as part of any bond.  In fact, even when 1st offenders were put on probation, it was common for a Judge to only order, as a condition of probation, that a person not drink and drive.  In other words, Judges didn’t order that a person not drink, just not drink and drive.  Then, as social attitudes toward drunk driving evolved, it became common for Judges to order that, while on probation, a DUI offender not drink at all.  Back then, compliance was checked by “random” PBT and urine tests, and those were most often administered when a person would report to his or her probation officer.  It was a later idea to require that anyone arrested for a DUI and waiting for his or her case to come up be required, as a condition of release, to not drink.  It didn’t take long, as the whole testing industry began to boom, to thereafter ensure compliance with an order to not drink while on bond by requiring regular testing, as well.  Slowly but surely this practice has spread throughout the Detroit area and has now become standard operating procedure.

Before getting on to the testing conditions of the bond order, the Judge or Magistrate will either specifically outline the other legal conditions of bond or simply apprise a person that those conditions are on the bond form that he or she has received, or will receive, before leaving court.  Unless otherwise specified on the record in open court, the standard terms and conditions of every bond order in Michigan (for every criminal case, not just DUI charges) always include that the person agree to the following:

The very first formal step in a Michigan DUI (or any criminal case, for that matter) is the arraignment.  This 2-part article will be a real-world examination of what the arraignment is all about.  Nowadays, an increasing number of courts in the Detroit area are requiring people arrested for an OWI charge (the legal term for a drunk driving offense) to show up for this proceeding.  This marks a change from not that long ago, when the vast majority of Detroit-area courts allowed it to be “waived,” or skipped, simply by having the lawyer file certain papers with the court.  The primary reason for this change is the growth of alcohol (and, in some cases, drug) testing as a condition of bond and release in DUI cases.  Because our limited purpose here is to look at what actually happens and what you can expect at an arraignment, we’ll forego all the legal double-talk and any kind philosophical analysis of the whole “testing” requirement.  As we’ll see, testing just is what it is, and that includes often being an exercise in frustration, and always an inconvenience, for those required to do it.

1006-n-mcb-redistrict-wright-750x447There isn’t much difference between what really happens at an arraignment and how it is defined and described in law dictionaries and rule books:  An arraignment is a hearing, held in open court, in which the person charged with an offense (the defendant) is told of the precise charge or charges against him or her, the possible penalties that may be imposed for each, is asked to enter a plea, and is then given rules to follow (conditions of bond) in order to stay out of jail.  Part of the process requires that  bail amount (also called “bond”) be established.  To determine what bail or bond, if any, is set, the Judge or Magistrate will examine a person’s prior record, the nature of the current charge, and his or her ties to the community.  Sometimes, a Judge or Magistrate may release the person without requiring any money.  This is called a “personal recognizance” or just “personal” bond.  This brief description leaves a lot out, but that’s consistent with our mission here, which to bypass all the technical stuff (at least as much as possible) and examine how things really work when you’re standing there, in court.  If you’ve been charged with a DUI and you have to go to an arraignment, it will be in a real courtroom, not in a laboratory or law library.

After most DUI arrests, a person will either be arraigned before he or she is let out of jail, usually the next morning, or he or she will be advised to show up in court on a certain date for an arraignment.  A lawyer is not needed for an arraignment.  There are cases where I will go, but not usually.  To be perfectly candid, a lawyer does not need to go to a DUI arraignment unless there is some risk of the client getting a really high bond, which is far more likely in a 2nd  offense or 3rd offense case, or a DUI causing injury or death cases (I don’t handle death cases), or if there is something specific to address with the Judge that is best handled by experienced counsel, like securing an exception from an expected or standard condition of bond.  Such situations are far more the exception rather than the rule.

In the previous article, I talked about simplifying things if you’ve been arrested for a Michigan DUI.  Instead of wasting time over-analyzing and over-thinking things like the traffic stop and analysis of the evidence, I pointed out of all the DUI arrests in Michigan, less than 1.5% are thrown out of court, and that less than .15% (that’s correct – POINT one five percent) go through a trial and win by a “not guilty” verdict.  That means that under 1.7% of all the DUI cases get “knocked out” of court somehow, and that more than 98.3% of them go all the way through the system.  Of course, everyone wants to be part of that small, lucky group, but your invitation to that club is not a matter of choice beyond making sure you hire a qualified DUI lawyer who doesn’t miss anything.  No matter how badly anyone wants to, if you’ve been charged with a DUI offense, you have less than a 1.7% chance of beating it.  Accordingly, once the evidence has been carefully examined, and assuming that your case is like the 98-plus percent of all the others, it becomes critically important to focus on making things better.  In this article, I want to look at what that really means.  To avoid turning this article into a textbook, we’ll skip the in-depth analysis and instead take a quick (but good enough) look at some simple scenarios to make our point.

not-getting-results-from-your-workouts-its-not-you-its-your-workout-guru-21731037For purposes of this installment, we will assume that all of the evidence in our scenarios has been examined and that the charge is legally solid.  We also need to assume (because it is a deep subject best taken up in another article) that each situation has been (or will be) properly negotiated, and that the best plea bargain or plea deal possible has been worked out.  In some cases, for example, a charge like OWI with a BAC of .17 or greater (High BAC) can be negotiated down to Operating While Visibly Impaired (Impaired).  In other cases, there are no plea bargains that can be negotiated.  In some situations, a 3rd offense (felony) drunk driving can be negotiated down to a 2nd offense (misdemeanor).  While negotiating the best plea deal is important, it is important to remember that the plea itself is not the be-all and end-all of DUI cases.  I often point out that success in a DUI case is judged by what does NOT happen to you.  I think the reader would agree that if Tipsy Tina manages to get her OWI charge reduced to Impaired driving, but winds up in front of the one Judge in the Detroit area who puts most 1st offense DUI drivers in jail, followed by 24 months of demanding, reporting probation, she didn’t do as well as Swerving Sam, who despite not getting any kind of plea bargain on his OWI charge, only had to pay fines and costs and stay out of trouble for a year of non-reporting probation.

No matter how it happens, we come to a point where the plea is what it is.  Whether a person is ultimately convicted of a 1st offense Impaired driving, a 1st offense OWI, a High BAC charge, a 2nd offense OWI, or a 3rd offense OWI, the most important thing thereafter is to limit the consequences he or she will endure.  This is the point of our discussion.  Let’s be even more clear here: The real goal in every DUI case (and every criminal case, for that matter) is to minimize punishment.  This is done, in each and every case, by combining a clear knowledge of the facts and the law with the skillful management of time, perception and science.  As honest as I am, however, and for as much information as I put up on this blog, I must also be somewhat circumspect and reserved here.  I’ve seen enough of the things I have been the first to write about subsequently recycled on other lawyer’s websites.  While imitation is the sincerest form of flattery (and I am genuinely flattered by that), I’m not about to teach every other lawyer with internet access how to get better results like mine.  I spent more money than the price of a car on my post-graduate education in addiction studies in order to help my DUI clients enjoy better outcomes in their cases, and be able to guarantee to win every one of my driver’s license cases.  Perhaps most of all, and this is about the only polite way to say this, magicians don’t tell how the magic is done.  That’s a nice way of saying that there is more than this to what I can say here.  As the magic shop tells it, “The secret is told when the trick is sold.” I always want my clients to know exactly what we’re doing, and why, but much of that is best reserved for our private conversations.  Having said that, we’ll be as candid here as we can…

If you’ve been arrested for a DUI in Michigan, you could almost spend forever reading websites and relevant blog articles.  Sometimes, for as much information as a person can find, it is just better to avoid getting overwhelmed and simplify everything by finding a lawyer you can trust to examine and handle everything for you, especially if you’re not being overcharged or getting sold out.  In my role as a Michigan DUI lawyer, I have published well over 250 DUI articles, and most of them are rather detailed, often providing an up-close examination of one, or just a few key aspects of the drunk driving case process.  In this article, I want to skip all of that and focus, instead, on the very real experience of just wanting to get past a DUI as painlessly as possible while knowing that the facts of the case were properly checked out and that the course of action you choose is the absolute best, under the circumstances.

raf,750x1000,075,t,353d77_4d8b4ffd91We cannot overlook that there is big money in the more complicated approaches marketed by some lawyers.  The simple truth, however, is provided by the Michigan State Police Annual Drunk Driving Audit.  This audit is required by law and accounts for every single drinking and driving arrest that takes place each year, as well as every step taken in every one of those cases in every court within the state:  Last year (2015), out of 43,553 DUI and related arrests in Michigan, only 62 people fought their cases at trial and won.  That equals .144% or, to put it in words, zero point one four-four percent, meaning less than .15 percent.  Over the last 5 years, from 2011 through 2015, there have been 244,839 DUI related arrests in Michigan; only 334 of those people went to trial and were found “not guilty” dropping the average success rate from .144 in 2015 to .136% over that 5-year period.  A quick perusal of lawyer websites reveals the popular marketing tactic of listing all the things that “could” potentially be wrong with a DUI case, although, as the numbers show, not often enough to even equal one-quarter of one percent acquittal rate.  A variation on this theme is to run through all the things the police must get right for a DUI charge to stand up in court.  You can do that with just about anything in life and make success sound like a miracle, but the fact is, we all do things involving multiple steps a million times every day without incident.  Making coffee can be made to seem like a ballet of complicated and risky steps, but for most of us, it’s something we do almost on auto-pilot.  Once in a while, we might turn on the coffee maker before we’ve added water, or maybe added 1 scoop of coffee too few, or too many, or even drop and break the mug, but those are the exceptions, and not the rule.  Ditto for DUI arrests.

At the end of the day, a DUI case is all about being able to prove that the person arrested was over the legal limit at the time he or she was driving.  The protections of the legal system are put in place to keep an innocent person from being found guilty of a crime he or she didn’t commit.  If you were not drinking, or you only had 1 or 2 drinks with dinner, then the system is supposed to prevent you from being convicted of DUI.  If you did have a few too many, however, then your only hope to get out of the case completely is that the police hopelessly bungled the evidence against you.  And while things do go wrong for the police once in a while, for the most part, they’re typically not botched so catastrophically that you’ll find a Judge who is anxious to throw a DUI charge out of court.  Judges do NOT view drunk driving cases as a game in which they sit and just hope to find some technical little flaw in the evidence so that they can dismiss all charges.  When is the last time you ever heard of that happening in a drinking and driving case, or, for that matter, ever heard about a Judge known for being “easy” on drunk drivers?  The answer, of course, is never.

In part 1 of this article, we began our examination of sobriety court.  We noted that the goal of sobriety court programs, which usually reserved for 2nd offense DUI cases (and, in some cases, 3rd offenses, as well) is to help people stop drinking through extensive counseling and treatment coupled with intense probation, supervision and testing.  I likened DUI sobriety courts to restaurants, noting that everyone is different, and while I may not care for the one you think is really great, and you might find my favorite to be nothing special, either.  I further pointed out that some sobriety courts are kind of fixed on a one-size-fits-all approach, using the “traditional” intensive outpatient treatment program along with AA as the only treatment option, while others are more flexible, and understand that different recovery methods work for different people.  It was pointed out that, amongst those who ultimately get sober and really “get it,” the light-bulb moment can come at any time, and that some people even have their epiphany after treatment has ended.  We ended by seeing how the old AA adage, “fake it until you make it,” that advises people who aren’t fully committed to sobriety to keep coming to meetings can be both a good thing, especially when it ultimately leads a person into recovery, and a bad thing, particularly where it wastes resources in sobriety court programs on people who are not genuinely interested in getting help with their drinking.  Here, in part 2, we’ll pick up right at that point.

Dollarphotoclub_919693865-500x300I don’t have a solution to the dilemma of who should “do” sobriety court other than to generally, if not gently, advise against it if you’re not truly interested in getting help.  This assumes, of course, that you believe that your relationship to alcohol has been, at least on occasion (as in 2 DUI arrests), problematic.  We don’t need to worry about labels (alcoholic, alcohol abuser, alcohol dependent, binge drinker, etc.) but rather that you merely perceive your use of alcohol as being, at least on those occasions, troublesome, and that you see drinking as not an entirely risk-fee proposition.  You need to see at least this much on the inside looking out, because you need to understand how YOU are seen from the outside looking in.

In plenty of my other DUI articles, I’ve explained that pretty much everyone – meaning the court system, the Michigan Secretary of State, the police, the public, and, most of all the Judge –  sees a 2nd offense drunk driving as virtual proof that the person has a drinking problem.  This is so much the case that the Secretary of State automatically revokes a person’s license for any 2 alcohol-related traffic conviction within 7 years of each other.  In that regard, I can call upon my extensive experience as a Michigan driver’s license restoration lawyer, where my client base is exclusively made up of people who have quit drinking for good.  As much as my clinical education and DUI experience bring to the table, it is in having heard (collected, really) the stories of thousands of people who have gotten sober that I have seen how, for some people, a 2nd DUI is THE wakeup call, while for others, it is not.  I’ve handled and won (the first time around, no less) a license appeal for a fellow with 13 prior DUI’s.  The first 12 were not enough for him to see the problem.  Another client with 9 DUI’s had either 22 or 23 prior stints in treatment, and none of them worked; he got sober through AA while in prison.  The point I’m driving at is that while the whole world sees a 2nd DUI offender as having a troubled relationship to alcohol, plenty of those 2nd offenders (and 3rd offenders, 4th offenders, etc.) do not.  What matters, as a starting point, is that anyone facing that 2nd or 3rd offense understands that NO ONE is going to agree that they don’t have some kind of problem, and that it’s just “bad luck” that they got popped again.  That never happens and it never will, and to rely on “unlucky” as part of your defense is a sure way to screw your case up in the worst possible way.  Even if you don’t believe you have a problem, accept, at the outset, that the court system absolutely does.

Sobriety Courts were first introduced in Michigan on January 1, 2011, as a pilot (test) program.  That pilot program became permanent as of January 1, 2015, and the number of Detroit-area sobriety courts (meaning those in Wayne, Oakland and Macomb Counties) has continued to grow ever since.  In this 2-part article, I want to look at what these drunk driving programs are all about, and how they can sometimes come up short.  I want to examine this from a somewhat different perspective than the typical lawyer, and even the average DUI lawyer.  Although I am, first and foremost, a Michigan DUI lawyer, I also have a formal, post-graduate education in the field of addiction studies and fully understand the development, diagnosis and treatment of alcohol problems as much as I understand that you hire a DUI lawyer to get you out of trouble.  The real bottom line is that you pay your DUI lawyer to make things better for you, and, in the right circumstances, sobriety court can be a useful tool to help accomplish that.  The goals of sobriety court programs are great, and there is a lot of potential for these programs to be very successful, but they can also suffer at the hands of close-minded thinking.  There are many ways people achieve sobriety; I have seen, first-hand, how well a more holistic approach can work, having been part of DUI cases where an astute, flexible and well-informed Judge has allowed a person in a sobriety court program a choice amongst various treatment options in order for him or her to find and connect with one that is a good fit.  By contrast, I have also seen how a “traditional,” one-size-fits-all approach that matches a person with the wrong recovery process produces nothing more than a lot of frustration and wasted time.

a4108b710084022c521d7888974850d2The ultimate goal of sobriety court is to help people get sober.  Sobriety courts offer extensive treatment and counseling coupled with intensive probationary supervision.  A person in sobriety court will be tested (breath and/or urine) very often to make sure he or she isn’t drinking or getting high.  The ideal candidate is a person who, faced with a 2nd offense (and, in some cases, even a 3rd offense) DUI, realizes that his or her drinking has become a problem and wants help to stop.  In the real world, a 2nd (or subsequent) offense DUI will cause a person’s driver’s license to be revoked.  This means taken away for good, and not merely suspended.  Because one of the key benefits of sobriety court is that the Judge can override the Secretary of State’s mandatory driver’s license revocation, it can seem like a real lifesaver.  I suppose the problem comes down to this:  Sobriety court sees itself as a way to save a person’s life, and the driver’s license as a reward for all the work a person will be doing; people see the driver’s license as the grand prize, and think they’ll figure out a way to “get by” and make it through the program.  If you’re getting a sense that these are demanding programs, then you’re getting the idea.

From my perspective, the whole concept of sobriety courts is wonderful.  The reality, however, is that sobriety courts are like restaurants; every one is different, and where I may not like the one you think is so great, you may not care for the one that is my favorite.  In that sense, it comes down to “different strokes for different folks.”  Although it’s not some “newfangled” idea, the notion of matching a person to the kind of treatment that works best for him or her is growing in popularity, limited really only by the existence of those who don’t have the skill set to offer it.  In other words, whereas the old-school idea of treatment used to be an intensive outpatient program (IOP) followed by aftercare (often a mix of individual and group counseling).  AA is almost always part of that deal, as well.  This is a solid approach, and it can teach a newcomer some very important basics of recovery.  The problem is, however, that it’s not a good fit for everyone.  Some people dread being in groups and talking about themselves, while others can get “weirded out” by individual counseling.  If there’s one thing that real world experience and studies have repeatedly validated, it’s that pushing someone into the “wrong” kind of treatment will not help him or her get better.  In fact, it can actually scare a person away from coming back for help, because the person doesn’t realize that there are other kinds of help available.

Soon after a DUI arrest, upon a person’s release, a lot of things happen.  As a Michigan DUI lawyer, I am familiar with the emotional and the “what’s next?” stress that follows someone’s release from jail.  It’s not like a you leave the police station or jail and can go to the parking lot, get into your car, and drive yourself home.  In some cases, you need someone to post bond for you just to get you out.  Then, you have to go and get your vehicle out of impound, and you need even more money to get it out.  Once you are out of jail and the car is out of impound, that doesn’t mean that the misery of the whole arrest experience is anywhere near out of your head; you can probably still almost smell and taste that nasty jail cell.  In this article, I want to go over the first few things you should do upon your release.  While it is understandable that this whole situation “feels” like and emergency, there is nothing you need to do so quickly that you don’t even have time to think about it, or otherwise consider your options, and that includes hiring a lawyer.  In fact, the biggest mistake you can make is to act too quickly.

bail-someone-out-of-jailChances are, you were given some kind of papers (these should, but don’t always include an actual ticket, a DataMaster breath result sheet, a Michigan Temporary Driving Permit, and a bond receipt) and some kind of instructions about calling the court.  Sometimes, a ticket will have, instructions directing you to call or appear “on or before” a certain date, or, there may be a date certain on it.  As certain as that date looks, don’t worry; that’s not your actual court date.  In many cases, if you contact the court within the “on or before” date on your citation, you’ll be asked if the address information on the ticket is correct, and, once you confirm that it is, you will be told that a court date will be mailed out to you.  In almost every district court in Macomb, Oakland and Wayne County, it will take at least a month from the time of your arrest until your first “real” court date.  Places like Clarkston, Troy, any of the Grosse Pointes, Plymouth/Canton, Sterling Heights, Clinton Township, Shelby Township and New Baltimore often take even longer to have you in for your first substantive proceeding.

This brings us the very first thing you should do (after, of course, getting your vehicle out of impound, because on top of every other money grab, you pay storage fees while it sits there):  Slow down, relax, and start researching things.  I’m sure that being told to relax at this point is kind of like telling an upset person to calm down.  That never works, but here, the implications of what’s happening here go beyond just being riled up at the moment.  There are things to be done, and it will be far better to do them with a clear, cool head than it will be to be guided solely by raw emotion.  In more than 25 years as a practicing lawyer, I have been contacted often enough by people right after an arrest; these folks are genuinely afraid, and, therefore, vulnerable.  There is an operating belief in the legal industry that drives lawyers to advertise things like “phones answered 24 hours” in order to be there and lock in these people right when they call.  For many people, the first lawyer they speak with who has any answers or reassurance becomes the “savior” they hire.  This is why so many of the personal injury lawyers do hospital visits.  However, the better practice is always to consider all of your options and make the best (as opposed to quickest) choice.

It’s been a while since I have written about the importance of the BAC result in Michigan DUI cases.  In this article, I want to take another look at the role of a BAC result in an OWI (Operating While Intoxicated) case.  To begin, I need to make clear that this is not an article about High BAC drunk driving charges.  Sometimes called “superdrunk,” the High BAC charge can (emphasis on the word “can”) be brought when a person’s breath or blood test result following a drinking and driving arrest is .17 or more.  I have handled cases that have been charged as High BAC when the BAC result is right at .17, and I have handled cases where a person’s BAC was way above that (including a very recent case with a BAC of .24) where an unenhanced OWI 1st offense was charged instead of the more serious High BAC.  The point I want to make in this article is that, independent of the offense actually charged, the BAC result is extremely important in every DUI case, and will have a direct impact on how things ultimately work out.

hello-my-name-isFor everything that can be said, the bottom line is that the higher a BAC result, the more it “looks” like a person has a drinking problem.  I put the word “looks” in quotes because that’s exactly what we have here – a kind of general appearance that almost automatically gives rise to a not-quite accurate conclusion.  The absolute fact of the matter is that different people have different tolerances to alcohol, and while anyone with a .18 BAC is certainly really drunk, there are some people who couldn’t drink that much if they tried, and would pass out first, while there are others who could ingest that much and still keep going.  In other words, an elevated BAC result is not always reflective of a tolerance to alcohol developed by excessive and problematic drinking.  This isn’t just opinion, either, it’s a clinical reality, although one that is largely ignored by conventional thought and runs counter to the court system’s inherent “alcohol bias.”  Indeed, so that I could more fully understand these important nuances of the development, diagnosis and treatment of alcohol problems, I went back to graduate school, as a lawyer, and completed a post-graduate program of addiction studies.  Everyone will have an opinion on the subject, but the reality is that people with higher BAC results will always be seen as more likely to have a drinking problem, even if they don’t.  Opinions, however, no matter how strong they might be, must always be subordinated to cold, hard facts.

Yet as much as it is a fact that not everyone with an elevated BAC result has a drinking problem, it is also a fact that such a result often does signify that a person has at least some kind of issue with alcohol.  In other words, we cannot go and lose all credibility by declaring that BAC results are simply meaningless, because they’re not.  Moreover, given how important BAC results are considered by the court system as a whole, it is critical that we proceed diplomatically and in a way that carefully and skillfully differentiates those for whom an elevated BAC does not, on a single occasion, signify a troubled relationship to alcohol.  Success in this regard can only be had by first understanding how and why the BAC result is considered so significant.  To fully appreciate how an elevated BAC result is perceived in a DUI case, you must also examine how a lower result is seen, as well.