Michigan Criminal Defense Lawyer Blog

In part 3 of this 4-part article, we focused in on the PSI (pre-sentence investigation) phase of a Michigan OWI case and the legally required alcohol assessment test that’s a part of that. The whole reason for the PSI is for the probation department to generate a written report and sentencing recommendation that is sent to the Judge to be used in deciding what to do to you. Here, in part 4 we’ll see how this all comes together at the last stage of the court process – the sentencing. This is when you finally stand in front of the Judge to find out what’s going to happen to you. As I noted before, most of what will be handed down by the Judge comes directly from the probation department’s recommendation. By law, when you show up for sentencing, you and your lawyer are required to read the probation department’s report and recommendation. Later, when the Judge calls your case, he or she will ask if you and your lawyer have read it over, if you have any corrections to make to it (this applies only to the facts stated in the report, like your name, date of birth, prior record and such, and NOT to the recommendation itself) and then, what your lawyer and you have to say regarding the recommendation part of it.

Judges are all people, and just like everyone else, every Judge in every court is different. No matter how well-spoken a lawyer may be, knowing the idiosyncrasies and inclinations of your particular Judge is a starting point to knowing what to say, and, equally important, what not to say, at sentencing. Every professional athlete, for example, studies his or her opposition. In football, each team watches film of the other team; same with any fighting sport, like boxing or MMA. If I’m representing a 2nd time DUI offender in a jurisdiction without a sobriety court and who I’d like to transfer into a different jurisdiction’s sobriety court program, I had better know if his or her Judge will allow that. There are some Judges who will not transfer a case, no matter what, so not only is asking for that a total waste of time as a sentencing strategy, but then you have to ask, what has a lawyer done to help the client in a case that’s not going anywhere? That’s like bringing chopsticks to a soup dinner.

This may sound harsh, but it’s true: sentencing is where your lawyer either shines, or not. When you’re standing in front of the Judge who is going to decide what punishment and consequences you receive, you had better have spent your money on a lawyer who is exceptionally persuasive. The very LAST thing you need is some attorney who is indistinguishable from the larger herd of lawyers that just drones on about the same old stuff, like your age, job, and other generic blabber about how you regret this incident, want to move past it, and get on with your life. Instead, you need a lawyer who engages the Judge, captures his or her attention, and who can explain, in short order, things like who you are as a person and how that figures into something like this never happening again. In short, you need a lawyer with charisma to spare.

In part 2 of this article, we began our examination of the court process in DUI cases, beginning with the arraignment and pre-trial.  Here, in part 3 of this article, we’ll continue our examination of the court process, starting with the legally required alcohol assessment test.  By law, any person who pleads guilty to or is convicted of an alcohol-related traffic offense (OWI) cannot be sentenced by the Judge until he or she undergoes a legally required alcohol assessment, sometimes called a “screening.”  The actual assessment is a written set of questions about your alcohol and substance use history.  Your answers to them are “scored” using a scoring key, and then compared to a scoring chart to determine whether you have, or are considered at risk to develop a drinking problem.

After completing the alcohol assessment, you will then go through an interview with a probation officer (PO).  The end result of all this is a written sentencing recommendation drafted by the probation officer that must be sent to the Judge to be used when you stand before him or her for sentencing.  This recommendation lists specific things that the probation department believes you should be ordered to do (and not be permitted to do) as a result of your charge, including counseling and/or treatment.

Whatever else you read here, or anywhere else, you can take this to the bank: every Judge, in every Michigan court, follows this recommendation very closely.  There is NEVER a case where a Judge makes any big, wholesale deviations from his or her probation department’s recommendation.  In fact, it’s far more accurate to consider the sentencing recommendation a “blueprint” for what’s going to happen to you than anything else.  In other words, a good recommendation equals a good sentence, and a better recommendation will result in a better sentence.

In part 1 of this article, we began looking at the Michigan DUI process – specifically the police part of that process – starting out from your first contact with a police officer, the traffic stop and arrest, all the way through your release from jail thereafter.  Here, in part 2, we’ll begin looking at the beginning of the court process in DUI cases.  The first legal step in the court setting is called an arraignment.  In many DUI cases, this whole step (and, therefore, the need to show up in court for it) can be waived by your lawyer, although some courts, like Detroit, Rochester Hills and St. Clair Shores usually don’t allow that.  Technically, an arraignment is a court proceeding held before a Judge or Magistrate where a person is formally advised of his or her constitutional and procedural rights, the specific charge or charges being brought against them, and the maximum legal penalties for each.  A person is then asked to enter a plea.  Although the subject of arraignments can get very deep, what matters most here is that if you do have to go to court to be arraigned, you should ALWAYS, and I mean ALWAYS  plead “not guilty.”  To be clear, this is a procedural move, and  has nothing to do with whether or not you are actually guilty or not.

In the suburban courts that don’t allow it, the main reason an arraignment can’t be waived is because the court wants to quickly set bond conditions, meaning things you will be required to do, and others you cannot do, while your case is pending.  This isn’t as bad as it sounds, so hold on before you start sweating.  Once you’re released from jail, you’re out.  If you posted any money, then that will almost always be the amount of the bond set by the court, so it’s not like you’re going to be asked for more.  Despite that, however, we always tell anyone to take $500 with them if they must go to court for an arraignment, especially if they didn’t have to pay anything when they were first released from jail.

Bond conditions are rules you have to follow while your case is going on.  They include not leaving the state without the court’s permission, not getting into any more legal trouble, and, in every OWI case, not consuming any alcohol or using any drugs.  To make sure a person complies with the “no drinking” and “no drugs” conditions, all courts will order some kind of alcohol and/or drug testing.  This can be either breath (you’ll hear the term, “PBT”) or urine testing, or a combination of them both.  Depending on various factors, including where your DUI is pending, that testing can be more or less frequent.  Even if your arraignment is waived and you don’t have to go to court for it, bond conditions, including and especially the “no alcohol or drugs” provision will be ordered by the Judge the first time you appear before him or her.