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.

27777764-fresh-we-need-to-talk-symbol-background-with-space-for-own-text-Stock-Photo-300x300We’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.

It’s likely that if you’re reading this, you have received a notice of an ignition interlock violation, are about to lose your license all over again, and have already paid to have a camera-enabled interlock unit installed in your vehicle; that became mandatory in June of 2016.  One of the ideas behind this new requirement was to cut down on the number of ignition interlock violations that seem to be clogging up the schedule of the Michigan Secretary of State’s Administrative Hearing Section (AHS).  Whether the camera units do that or not remains to be seen, but it probably doesn’t make you feel any better at the moment.  Putting aside all the diplomatic nicety and legal finery for one moment, and before we dive into any meaningful discussion, let me just agree that this sucks.  Almost every one (I’d like to believe every last one) of my interlock violation clients, whatever the underlying basis for their violation, were not drinking; I have no interest in helping someone win a violation case who was.  For everything else I could say about this, none of it changes the basic fact that even if you’ve remained genuinely sober, if you’ve been violated, you need to win your license back, and getting all mad about things won’t help.  After all the work that you put into getting sober, changing your life and then winning your license back the first time, you probably don’t deserve this, but, as Clint Eastwood’s cowboy character said in “Unforgiven,” the western movie, “Deserve’s got nothin’ to do with it.”

violation-300x300I’ve had interlock violation cases that have come as a complete surprise to my client, I’ve had plenty where the client first tried, unsuccessfully, to “head off” a violation by calling the interlock company and/or faxing documents to the Secretary of State in Lansing, and just about everything in-between.  Obviously, if I’m involved, those efforts didn’t work, although I do make my staff and all of our resources available to my existing clients to try and avoid a violation in the first place.  How and why ever it happened, when a person opens that envelope and learns that their license is going to be taken away, especially when they weren’t drinking and have remained sober, a flood of negative emotions rushes to the surface.  I understand that, but my job, as a Michigan driver’s license restoration lawyer, is to help you move past the emotional stress and win your license back.  As the saying goes, “It is what it is,” and there is no way to go back in time and undo things; instead, we need to take the appropriate corrective action under the circumstances in which we find ourselves.

In another ignition interlock violation article I put up about a year ago, I reprinted the “Notice of Proper Ignition Interlock Use” section that is part of every winning license appeal order (although some hearing officers title it a bit differently in their opinions).  Key to those instructions is what to do after a missed rolling retest or any positive alcohol reading:  Get a PBT (breath) or EtG (urine) test.  For anyone reading this article because of a violation, you either did get a test (if doing so was relevant to your kind of violation; it is usually not in “Tamper/Circumvent” cases, for example) or you did not.  If you should have gotten a test but didn’t, then it’s too late now, so there’s no point crying over spilled milk.  We’ll have to work with what we have.  In those of my cases where I don’t have a confirming negative test, I win interlock violation cases by using context, and how the alleged violation doesn’t fit within the context of my client’s behavior, case, life and/or recovery.  In a very real way, this requires learning all of the relevant facts, understanding the procedure, knowing about the hearing officer, and also just having a real “intuition” about how to put a successful appeal together.

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.

courtroom-scales-1First, 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 part 1 of this article, I began explaining how I do Michigan driver’s license restoration and clearance appeals within the framework of the Michigan Secretary of State’s established process.  I pointed out that genuine sobriety is a non-negotiable requirement for me to take on a license case because it is also a non-negotiable requirement to win one.  I next explained that my first meeting with a new client takes about 3 hours, and that most of that time is spent preparing the client to undergo the required substance abuse evaluation (it is correctly entitled a “substance use evaluation,” but everyone substitutes the word “abuse” for “use”) which is more less the foundation of a license restoration or clearance case.  I also mentioned that about half of my clients come from out-of-town, and for them, we arrange it so that they’ll come see me first and then go from my office to have their substance abuse evaluation completed, making the trip a kind of “one and done” deal.  Unless she’s unavailable, I generally use one primary evaluator whose office is just a few blocks from mine, although I do also have a small circle of other honest, top-notch clinicians to whom I send my clients, as well.  For those local to the Detroit area, scheduling an evaluation the same day they see me isn’t really necessary, but seeing me before being evaluated certainly is.  We concluded part 1 by noting that there are 5 possible prognoses in the actual substance abuse evaluation form, and that “good” is really the best.  Here, in part 2, we’ll resume our discussion by looking at the letters of support.

tumblr_lojitzZdp81qzwokwo1_r1_1280In addition to a substance abuse evaluation, a person must also submit letters of support when filing a license reinstatement case.  The state mandates at least 3 letters (and asks for no more than 6, but that’s not a hard and fast rule), while I want at least 4 (this way, if one is “screwed up” for some reason or other, than at least we still have the required 3 in the race).  The letters of support are the primary evidence submitted to prove that your alcohol problem is under control, which really amounts to testimonial evidence that proves your abstinence from alcohol.  I do not mean this disrespectfully, but 99% of the letters I initially review before editing are nowhere near good enough for submission as the come.  This has nothing to do grammar, either.  If all the support letters in my next 100 license restoration cases were drafted by lawyers and writers, I’d still have to fix 99% of them.  Letters of support serve a very specific evidentiary purpose (specifically, to prove that your alcohol problem is under control), but most people who write them try a bit too hard, and those efforts put the letters into the larger (but useless) category of what a colleague of mine calls “good guy letters.”  In the context of a license appeal, it doesn’t matter a bit if you’re a good person or not.  You could be the biggest rat on the planet, but to the Secretary of State (SOS), if your letters of support verify your sobriety, then they’re helpful.  On the other hand, you could be the nicest and most helpful person in the world, but without corroboration of your abstinence, the letters of support are worthless.

I personally work on each and every letter to make sure it is (honestly) revised to remove irrelevant language.  The SOS knows that it’s been hard for you without a license, so anyone telling them how difficult it’s been for you to get by, or get to work is just wasting ink and time. Instead the point is to make sure that your abstinence, and the letter writer’s observations of it are clearly explained, and that all relevant time frames are referenced, as well.  If Recovery Ron quit drinking back in 2006 and later met Helpful Hannah in 2009, she can’t really attest to any of his abstinence back in 2006, 2007 or 2008, can she?  Likewise, if Ron lived with Talking Tom from 2004 through 2009, but then after he me Hannah, the two of them moved to Florida, Tom can’t really say much about Ron’s abstinence after he moved out in 2009, can he?  Add to that that each letter must be consistent with every other letter and that they must all, as a group, be consistent with the evaluation, and you find yourself at a point where it’s easy to overlook something.  In fact, I get plenty of cases where people have tried and lost a previous license appeal, either on their own, without a lawyer, or with some lawyer whose claims of “doing” license appeals exceeded his or her abilities and/or experience where the letters were a main reason for the loss.  If there’s one thing you can take to the bank, it’s that a loss (for a genuinely sober person) because of a bad evaluation or letters that weren’t good enough is 100% the fault of the person who submitted them.  For those who tried on their own, that’s the price of trying to “play lawyer,” while for those who hired a lawyer, the blame for failing rests squarely on that lawyer’s shoulders.

There are specific steps you must take to win back your Michigan driver’s license.  As a driver’s license restoration lawyer, I have developed a system guaranteed to succeed in every case I take.  A person must, however, be genuinely sober as a prerequisite to me accepting his or her case.  Because the whole point of the license appeal process is to prove that a person has quit drinking for good, it’s not like I am not imposing any conditions beyond those mandated by the Michigan Secretary of State’s Administrative Hearing Section (the AHS – formerly known as the DAAD, and the DLAD before that), yet sometimes I wonder why this topic isn’t front and center with every lawyer who will accept money to file a license case.  At any rate, this 2-part article will provide a summary overview of how I do license appeals in my office.  It will, of course, take into account the formal state process, but my goal is to give the reader an idea of the way things work in my office.

qualitymanagementsystemsSobriety is everything to a Michigan clearance or restoration case.  Proving sobriety is really the “meat and potatoes” of a license restoration or clearance case.  Proving that you’re sober means showing not only that you have quit drinking, but that you also have the commitment and tools to stay quit and remain sober for life.  In the previous article about license restorations, I pointed out that license appeals are hard because they are supposed to be hard; the main rule governing the process instructs the AHS hearing officer to NOT grant an appeal unless you prove, by what is defined as “clear and convincing evidence,” that your alcohol problem is under control (you’ve quit drinking) and that it is likely to remain under control (you are likely to never drink again).  Anyone who is really sober knows that sobriety requires abstinence, but mere abstinence, by itself, is not sobriety.  Real sobriety is a state of being and is a radical and better change from one’s drinking days.  Sober people are content, grateful, and have a sense of genuine serenity about their lives and recovery.

It starts with a phone call to my office.  We need to ask a few questions, first, to make sure a person is both eligible to file an appeal and that he or she meets the criteria to actually win.  All of my consultations are done over the phone, right when you call.  I have an incredibly great staff, but when someone hires me, they get me, and no one else, as their lawyer.  I personally prepare and review every single one of my cases; I prepare each and every client for his or her hearing, and it’s me, and me alone, who shows up to conduct it.  About half of my clients live in the local, Detroit area, while the other half come from out-of-state (or from another part of the state).   For those that don’t live close by, we arrange for them to have their substance abuse evaluation completed immediately after they leave my office for our first meeting, so we can make the visit a “one and done.”  That first meeting with a new client takes about 3 hours, with most of that time being spent preparing to have the evaluation completed.  To do that, I make a copy of all the relevant documents and put together a “package” to give the evaluator, including a form of my own creation, called a “Substance Abuse Evaluation Checklist” that I fill out during our meeting.  Local clients can simply call the evaluator after our meeting and set up an appointment for another day.  Whether local or not, after spending over 3 hours in my office, my clients walk out knowing exactly what we’re doing, what’s going to happen, and when.  They also leave with the comfort of a guarantee to win their license case and an understanding of why, given how the license appeal process works and how I do things, that should be expected.

Everyone knows that it’s difficult to win a Michigan driver’s license restoration case (or obtain the clearance of a Michigan hold on a driving record) after multiple DUI convictions.  There is, however, a LOT of misunderstanding out there about how the license appeal process works and why winning is so hard.  In this article, I want to clear up a few things about that.  In many of my other driver’s license restoration articles on this blog, as well as in the license restoration section of my website, I undertake a close-up examination of the issues and steps involved in the license appeal process.  Here, I want to take a step back from that and look at the bigger picture.  Winning licenses back is so routine to me that I guarantee to win every license restoration case I take, but that’s because I completely understand the process and know precisely who it’s designed to keep out of the driver’s seat.  And make no mistake, the license restoration process was intentionally designed to deny most appeals.

metricdriven-product-management-producthuntto-17-638We must begin with the simple but important truth that the Michigan Secretary of State (SOS) is supposed to refuse to return a license to anyone who still drinks alcohol.  The SOS knows that everyone “needs” a license; everyone understands that it’s hard to get by without one, but none of that matters in terms of who can win a license back.  The state sees anyone with multiple DUI convictions as a high risk (too high a risk), and is not willing to consider putting that person back on the road again until he or she can prove they’ve become genuinely sober, as in completely alcohol-free.  I get loads of calls from people who want to explain that they can safely enjoy the occasional drink and are no longer any kind of risk on the road and blah blah blahThe state does not buy any of that.  A person can argue all he or she wants about how the system is unfair, but unless you play by the rules already in place, you’re simply wasting your breath.  In fact, the primary reason I guarantee to win every license appeal I file is that I will ONLY accept cases for people who are honestly, genuinely and really sober and have given up any of the “I can still have a glass of wine (or a beer) every once in a while” stuff.  And that brings us right to the heart of the matter; license appeals are hard because they are designed to be hard.

Statistically speaking, more than 95% of all alcoholics are unable to accumulate any kind of long-term abstinence.  Of course, a lot of people with 2 DUI’s will say, “But I’m NOT an alcoholic!”  Perhaps not, but then again, maybe so; it doesn’t really matter what you or I think, because if you want to win back your license, you have to play by the state’s rules (not that the state says everyone with 2 DUI’s is an alcoholic).  However, anyone who has had his or her license revoked for 2 or more DUI’s is legally categorized by the state as a “habitual alcohol offender.”  Skipping all the go-nowhere discussion about definitions here, you can just take that to mean that the state sees you as having a problem with alcohol, even if that “problem” is that you have a demonstrably increased risk to make bad decisions (like getting behind the wheel) some of the times you drink, as evidenced by your driving record.  The state is not willing to bet that someone has somehow improved his or her decision making skills enough, after drinking, to ever give him or her a license back.  Instead, under the rules, after a person’s license has been revoked for multiple DUI’s, the only way for him or her to ever legally drive again is to prove that he or she has quit drinking for good, because people who do not drink do not drink and drive.  And that’s the easy part of why things are so hard…

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.

courtroom-300x252In 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: