Articles Posted in DUI

In the part 1 of this article, we began our examination of the PSI process and the role of the mandatory written alcohol assessment in DUI cases.  While the first installment was mostly a kind of overview, here, in this second part, we’ll zone in on the first of the 3 main things evaluated in a pre-sentence investigation; your background, upbringing and prior record, if any.  I typically describe the whole PSI process as “the big 3,” meaning an assessment of where you’ve come from, where you are, and a recommendation about where you’re going.  This is more than just a cutesy way of looking at it, though, because those really are the 3 pieces of the PSI puzzle, and they directly impact what the Judge will do to you in a drunk driving case.  In the same way that how well or poorly you perform on the alcohol screening test figures into the kind of alcohol education, counseling or treatment you will receive (or not), your background and your current living situation are also evaluated as important factors in deciding what the Judge should do to you when you are sentenced for a DUI.  Let’s break this down make it clearer, and we’ll start with a hypothetical example:

only-the-present-the-secretAssume that Tipsy Tina was arrested for a drinking and driving offense in one of the cities in the 41B district court (Clinton Township, Harrison Township and/or the City of Mt. Clemens) and her original charge of OWI (Operating While Intoxicated) was been bargained down to OWVI (Operating While Visibly Impaired, often just called “Impaired”).  She has already just pled guilty to the reduced charge, and her sentencing date has been set out about 4 weeks.  She has been given a date to return to court in about 2 weeks (before her sentencing date) to meet with a probation officer for her PSI, and she must also complete the legally required alcohol assessment test, as well.  We’ll get to the test later, because not only is it the single most important factor in determining what happens in a drunk driving case, it also requires its own, separate article to properly explain.  Thus, we’ll begin with the first (“where you’ve come from”) of what I have dubbed “the big 3” and see how a person’s background, childhood and upbringing figure into all of this.

One of the easiest ways to demonstrate this is to compare yourself to someone else, so we’ll use poor, hypothetical Tipsy Tina for that purpose.  As part of any PSI process, you’ll be asked to fill out some paperwork about your past.  By and large, this means explaining where and to whom you were born, with whom you were raised, and how your childhood played out.  As life goes, no matter who you are and how you came up, you probably consider your own background to be “normal,” so just take that as a starting point and then contrast your past with Tina’s.  On her intake paperwork, Tina indicates that she was given up for adoption as a baby and was bounced around to various foster homes as a child.  She admits that she was sexually abused throughout her childhood and that she dropped out of high school in the 10th grade.  Not long after that, having already tried a number of substances, including tobacco, alcohol, marijuana, she became an IV drug user.  By her late teens, she had been in trouble with the law several times and had not had any kind of stable living arrangement for several years.  At age 20, she had a child, and then lost custody because she was sent to prison for 3 years, beginning at the age of 22.  When she was sent to prison, she was diagnosed as having schizo-affective disorder.  She reports that she recently discontinued taking her psychiatric medication because, although it helped with the “voices” she hears, she doesn’t like its side effects.  This is her 1st DUI, but she has 3 prior misdemeanor convictions, including one for solicitation (prostitution) and 4 prior felony convictions, including home invasion and delivery of a controlled substance.  As to her health, she reports many problems, including a worsening of the symptoms from her schizo-affective disorder (she’s suffering from more frequent auditory hallucinations) and she fears that she may be HIV positive, although she has not been tested for it since before her time in prison.  She has not seen her child in over 6 years.  Tina, as it turns out, is a train wreck…

There is one, specific step in the DUI process that affects the outcome of each and every case far more than any other.  In fact, this step is really the most important one, in terms of what actually happens to you, and its direct relationship to actual results in a drinking and driving case cannot be overstated.  Most often referred to as the PSI, but variously called the “screening,” “assessment,” “alcohol assessment,” “substance abuse assessment (or screening)” or “pre-sentence investigation,” it is what takes place right before a person sentenced by the Judge.  It is here that you complete a written alcohol use screening instrument (think of it as a “test”), fill out forms and provide information about your background, current life situation, your version of the facts of the case, and then go through an interview by a probation officer, who will ask additional questions.  After you’ve taken the test, provided all the requested information and completed the interview, the probation officer must write up a sentencing recommendation (this is required by law) for the Judge, advising what should happen to you at sentencing.  For everything that can be said about this, here is the bottom line:  Most Judges follow these recommendations like a blueprint.  In other words, what’s recommended here is – with very little exception – what’s going to happen to you later on.  In this multi-part article, we’ll examine how the PSI and the recommendation that follows, and what can be done to make the outcome of your drunk driving case better.

Student filling out answers to a test with a pencil.Over the years, court probation departments have been tasked with completing PSI recommendations.  Because this job has been assigned to them, the probation officers who staff these departments have developed and, perhaps more importantly, have been perceived to have developed, a real expertise in assessing DUI drivers to see if they have, or at risk to develop a drinking problem (or not), and to know all the educational, counseling and treatment options best suited for any particular case and person in order to prevent another drunk driving incident.  This sounds complex, and while there is a lot to it, our examination will ultimately focus on the simple reality that how well or poorly you do at this PSI stage determines what kind of sentence you will receive from the Judge.  This is a topic skipped over by most lawyers because it is deep, does not involve any specific legal knowledge or skill and is just otherwise easy to ignore.  Unless, like me, you’re inclined to take things apart to see how they work, the whole PSI process seems impenetrably closed-off, because, indeed, it is closed-off; the PSI is done entirely by the probation officer and the only other party in the room is the person going through the DUI.  On the day you come back for sentencing, the PSI report and its recommendation is provided to you and your lawyer, and the two of you are REQUIRED to read it over, and note any corrections that need to be made to it.  Once your case is called for sentencing, the Judge will ask your lawyer if the two of you have reviewed the report, if it is factually accurate, and what comments you have as to the sentencing recommendation.  Here is where I, as a DUI lawyer, part company, in a very big way, with most of my colleagues who essentially ignore this critical step, precisely because I am that guy who takes things apart to see how they work, and I know how proper guidance here can have a direct and substantial impact on making things better in a DUI case.  Even though I always have the PSI in mind as I handle a case, I also have a separate 1 to 2-hour meeting with every client right before he or she fills out any paperwork or goes in for the interview with probation to complete his or her pre-sentence investigation.

Most lawyers show up on the day of sentencing, ready to read the PSI report and then make a “pitch” to the Judge regarding its recommendations.  The idea, of course, is to get the Judge to “take it easy” on the client.  Here is something you can take to the bank:  It’s way too late to change the outcome of your case by arguing against the recommendations in the pre-sentence report when you’re standing in front of the Judge at sentencing.  And to be perfectly clear, let me repeat and properly emphasize this:  It’s WAY too late to have any real impact after the report and recommendation has been written up by the probation officer.  I often say that 99% of all Judges follow these recommendations 99% of the way, and that’s probably an understatement, if anything.  In order to change the outcome of your case, you need to directly influence the recommendation itself, and that begins long before you ever pick up a pencil to take a written alcohol screening test or ever sit down to speak with a probation officer.  It begins when you choose a DUI lawyer, and this is where I can help the most.  Throughout this article, we’ll look at how the court system’s inherent alcohol bias and the work experience of probation officers and Judges directly affects all of this, but before we get to that, we need to make clear that when your lawyer is asked to make any comments about the recommendations contained in the PSI report, the only real latitude he or she has to convince the Judge to ignore or do something different from what has been recommended is to show how that recommendation or suggestion is just plain wrong.  Anything less than that just sounds like (and is certainly perceived as) whining from someone unhappy with the consequences of his or her drinking and driving conviction.  Let’s see what all that means…

In part 2 of this article, we continued our inquiry into probation violation cases in Michigan criminal and DUI cases.  In particular, we tried to see how the whole violation thing is perceived by the Judge who sentenced you for a drunk driving offense or something like a drug (including marijuana) crime.  We also noted that although positive test results are the most common reason for being violated, missed tests come in a reasonable close second, with false-positive results a distant third.  Here, in our 3rd and final part, we’ll go into the courtroom itself and see how it is proven that a person has violated his or her probation and how that plays out in front of the Judge.

Decorative Scales of Justice in the CourtroomUp to this point, we’ve looked at the 3 most common reasons that give rise to a probation violation:  A positive result, a missed test, and a false-positive result.  Now, let’s look at how these are handled in court and what must be shown to prove that there was, in fact, a violation.  That “showing” is technically called the “standard of proof.”  Everyone knows that if you’re accused of a crime and go to trial, the prosecutor must prove your guilt beyond a reasonable doubt.  A probation violation is proven by a much lower standard, called a “preponderance of the evidence.”  The most common way this is explained is to imagine the scales of justice sitting even, or level.  As soon as you put something on one tray, it goes down and the empty side goes up.  Now, if you put something of equal weight in the other tray, the scales go back to even and level.  If you put something that weighs just a little more on one side than you do on the other, then the heavier side falls farther down, and the lighter side remains higher.  Surely you get this.  A preponderance of the evidence means just enough evidence to tip the scales from being exactly even, one way or the other.

Let’s consider an example:  Assume that Sneaking Sam has missed a test.  Now, picture the Judge on the bench, with the scales of justice next to her, and they’re level (even).  She looks at Sam and says, “I have a notice that you missed a test last week, Sam.” She then grabs a 5-pound weight and puts it on one of the scales, causing it to tip.  So far, the preponderance of the evidence weighs in favor of Sam having missed his test.  Next, the Judge asks what Sam has to say, and his lawyer explains that Sam’s boss called him in early the day of the missed test because there had been a flood at the workplace, and hands up a letter from the boss to that effect.  The lawyer also offers up a make-up EtG test taken the next day.  The Judge then takes a 2-pound weight for the letter and a 2-pound weight for the make-up test and puts them on the other scale, causing the missed test side to rise.  Still, the scale hangs a bit lower on the side of the missed test.  That’s because the preponderance (think of it as the majority) of the evidence supports the idea that Sam did, in fact, miss his test.  Sure, he has a relatively good reason for doing so and it’s true that he has a clean make-up test, but in terms of the simple allegation that he missed the test, Sam’s evidence does not outweigh that on the “missed” side.

In part 1 of this article about Michigan probation violations, specifically in the Detroit-area district and circuit courts of Wayne, Oakland and Macomb Counties, we began examining what happens when a person who is on probation for a criminal or DUI case either tests positive or misses a test altogether.  I pointed out that to the Judge, a violation of his or her order to not drink (and/or not use drugs) by either a positive or missed test can feel like either getting the middle finger from the person to whom a break was given.  The only other alternative to “screw you, Judge,” is that the person is suffering from an overwhelming and irresistible compulsion to drink (or smoke weed or whatever).  As we noted, however it plays out, a missed or positive test does not look good.  I certainly understand that people who do have a drink (and get caught) are not, for the most part, trying to “flip off” the Judge, nor are they caving into cravings of some sort, but rather just want to be normal, like everyone else.  An order to not drink, however, must also be seen as a part of one’s punishment for the original offense, and a missed test, even if it is followed by a clean make-up test (or there is a “good” explanation for missing the test) is a violation of the requirement that a person test when directed, on the schedule ordered, and not one that is “convenient.”  In other words, part of the penalty for a criminal or DUI conviction is that you don’t get to act normal by enjoying an adult beverage.  At the end of part 1, we were, figuratively speaking, standing in front of the Judge who was wondering if a person tested positive because he or she is hell-bent on NOT following the rules or is otherwise unable to cope with his or her urges to drink (or use drugs).  We concluded by pointing out that it’s that very spot where most people really get a sense of how bad their situation looks, and asking what can be said or done to make it better.

Plan-or-Growth 2.0There is no simple, one-size-fits-all answer to that question.  And to be perfectly honest, some Judges are “easier” than others.  You can call them more forgiving, lenient or understanding, but the plain fact is that there are some Judges who won’t really have much interest in your side of things if you test positive, and I can think of at least one Judge who will have about ZERO interest in anything you have to say once you’re caught drinking or smoking weed while on probation.  In that sense, as you look for a lawyer, you need to find one who really knows the Judge or Judges in the court where your violation is pending.  For example, that Judge who would probably have the least interest in anything you have to say is also (not surprisingly) rather short on patience, so it would not be a good tactic to go in there with an attorney who will drone on and on about kinds of stuff she DOESN’T want to hear.  Any chance to change her mind needs to come right out of the gate, not after torturing her by babbling on and on….

As we noted above, the goal in a probation violation case is to convince the Judge that you neither callously disregarded his or her orders to not drink (or use anything else) nor do you have an underlying problem with urges too strong to resist.  Of course, everyone’s first strategy is to say that very thing.  Part of the problem with such a plan is that, almost without exception, everyone does and says that same thing.  Over the course of my 26 years, I have read, quite literally, thousands of DUI police reports.  Ask any DUI lawyer or any police officer what people say when the officer asks if the person has been drinking, and you’ll learn that far and away, everyone gives about the same answer; “2 beers,” “2 drinks,” or “a couple of drinks.”  No one replies, “Hell yeah; officer, I drank a lot, and man, am I am really drunk right now!”  Likewise, everyone who stands before the Judge for drinking while on probation says that he or she didn’t mean any disrespect nor do they have drinking problem.  So if that’s not going to fix things, what do you do?

As a Michigan criminal defense and DUI lawyer, I get called upon to handle a lot of probation violation cases.  In fact, it’s quite likely that if you’re reading this, you or someone you care about is facing one.  In this article, I want to take a real-world look at the 2 most common reasons people wind up getting violated:  A positive urine or breath test result or a missed test for alcohol and/or drugs.  Sure, there are plenty of other ways that people violate an order of probation, and much of what we’ll look at here applies equally in those situations, but most of the calls I get follow a positive result or a missed test.  I want this installment to be candid and conversational, as if you were sitting in my office and we were speaking across my conference room table.  I’m sure that you’ve already come across plenty of lawyers with catchphrases about your freedom, your future, and/or control over your life, or who focus on how tough and aggressive they are.  By now, you’ve probably grown weary of all that, so we’ll change focus and use this article to examine how probation violations play out in real life, and how I handle them.  This article will be divided into 3 installments, and will really explore the goings-on in a probation violation case.

We’ll start by looking at the hard truth that a lot of people (including lawyers) want to dance around, rather than face head-on:  When you’re caught giving a positive test result, the first impression is either that you’re giving the finger to the Judge or you have a real problem with alcohol and/or drugsProbation is a break; an opportunity to stay out of jail by, amongst other things, showing up for all required tests and then passing them.  Of course the job of your lawyer in a probation violation case is to get the Judge to see what happened as being neither a disregard of his or her order nor as proof that you have some irresistible compulsion to drink or get high, and for everything else that can be said, this is the real crux of the matter.  It should be pointed out that although most Detroit-area courts use the term “probation violation,” some others call it a “VOP,” meaning violation of probation, or a “show cause,” which is a hearing that requires you to go before the judge and show cause (a good reason) why you shouldn’t be held in violation.  Whatever it’s called, it’s all the same thing.

We should also note, at the outset, that good reasons do exist for having missed a test, and that false-positive results do happen.  Sometimes, the simple truth is that a person misses a test because he or she forgot, or got real busy, or had to go to work, but was not to avoid a positive result.  In a perfect world, when that happens, a person will be timely notified of a positive result and have an opportunity to retest.  In the real world, however, it often works out that by the time a person learns he or she has failed a test, it’s too late to do anything about it.  Sometimes, a test result is wrong, but when a positive result is correct, meaning you did, if fact drink (or use drugs), you need the kind of lawyer who is a persuader, and who can explain things clearly.  In other words, if the positive test result is correct, it couldn’t matter less if your lawyer has a Nobel Prize in chemistry; that’s not going to make things better in front of the Judge.  Instead, you need to convince the Judge to not put you in jail or otherwise hammer you.  At the end of the day, while some cases do involve false-positive results, most arise because you simply got caught, and here, you need to go into full damage-control mode.  Let’s examine, in turn, positive test results (when you did drink or use), false-positive results, missed tests, and what has to be shown for you to be found guilty of a probation violation and how that all goes down in court.

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 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…