Michigan Criminal Defense Lawyer Blog

In part 5 of this article about 3rd offense DUI cases in Michigan, we wrapped up our examination of a person’s relationship to alcohol. There, we reiterated 2 key takeaways for anyone facing a 3rd offense DUI charge: First, the law (along with everyone in the court system, and just about everyone else in the world) simply concludes that the person has a drinking problem. Second, even if the person facing the charge thinks differently, this is the most important time to for him or her to just shut up and not argue the point, because that will only make things worse.

Instead, anyone facing a repeat offense DUI, meaning anyone facing his or her 2nd offense, much less dealing with drunk driving charges for a 3rd (or even subsequent) time, needs to at least get out of his or her own way and stop trying to win a losing argument. Although it really is beyond dispute that anyone who has racked up 3 or more DUI’s has a troubled relationship to alcohol, the simple fact is that he or she can’t be forced to believe that unless and until he or she is ready. For some, this realization comes as the result of his or her last DUI, while for others, it never happens.

One concern that everyone shares, regardless of what they thing of their relationship to alcohol, is about getting locked up. Not surprisingly, the biggest fear anyone facing a DUI charge has is going to jail. Remember, there is nothing higher in Michigan than a 3rd offense, so for plenty of folks, a 3rd offense charge actually comes after more than 2 prior offenses. In the context of a true 3rd offense DUI case (meaning one in which the person only has 2 prior DUI convictions), the good news is that jail is NOT a certainty. This all needs to be explained a bit…

In part 4 of this article about 3rd offense DUI cases in Michigan, we briefly looked at the role of evidence. In particular, we saw how a lawyer can make things worse by not looking at the big picture before plowing forward and trying to fight a DUI charge without an intelligent plan. We then noted that anyone charged with a 3rd offense drunk driving is going to be perceived as having a drinking problem, and even if he or she disagrees with that, this is the time to shut up and not argue that point, because that will only make the person’s situation worse.

Years ago, because the work of our firm is concentrated specifically in DUI and driver’s license restoration cases (which are a direct result of having racked up multiple DUI’s), I realized how beneficial it would be for me to expand my understanding of alcohol and addiction problems. Although my team and I spend all day, every day, working with alcohol and drug-related issues, I wanted to learn the clinical side of things, as well and recognized the value of being able to see the whole picture, and not limit my knowledge only to the things at issue in DUI and driver’s license restoration cases.

To do that, I went back, in-person, to the University classroom and completed a formal post-graduate program of addiction studies (before I got my law degree, I earned my undergraduate degree in psychology, so this really was an extension of that). Although some what I heard confirmed things I already knew through our firm’s work, the program really broadened my grasp of how alcohol and substance abuse problems develop, and how they are diagnosed and treated, as well as the many ways people can and do recover from them.

In part 3 of this article about 3rd offense DUI cases in Michigan, we wrapped up our overview of the court process. We looked at both the similarities and procedural differences between a felony, 3rd offense DUI, and 1st and 2nd offense cases, keying in on the fact that the vast majority of all DUI cases are resolved during the pre-trial stage. We repeated the gold standard – that success in a DUI case is best measured by what does NOT happen to you. Finally, we noted that, above and beyond anything else, a DUI case turns on the evidence, and that it must therefore be properly managed.

Let’s begin here by looking more closely at managing the evidence. In a recent article, I wrote about the risk of a lawyer in a DUI case trying to use a limited portion of police video in legal proceedings when the larger recording clearly shows a person bumbling around intoxicated. When a person is making a legal challenge to some part of the evidence from a DUI arrest, and a Judge or hearing officer is being asked to rule on a point of law while the video shows both that the person was driving AND was obviously under the influence, it’s all but impossible to “un-see” that.

In other words, while a lawyer can “fight” just about every bit of evidence in a case, there has to be an intelligent defense and management strategy to those efforts. In reality, if a person who has been convicted of 2 prior DUI’s goes to court to challenge some part of the evidence and uses the kind of video described above, it’s going to be a very difficult task to get some Judge to bend over backwards and be happy to dismiss a 3rd offense DUI charge made against a repeat offense drunk driver who was obviously driving drunk – yet again.

In part 2 of this article, we looked at the early court phases of a Michigan 3rd offense DUI case. We noted that in most instances (there are exceptions, like when a person is injured in an accident) things begin with arrest, and that the formal court process starts at the arraignment stage. We saw that the 2 main purposes of arraignment in a 3rd offense drunk driving case are to set the bond amount, and the bond conditions, which will always include an order to refrain from the use of alcohol, and to impose a testing schedule to ensure that the person complies.

We noted that the arraignment is followed by the scheduling of a probable cause conference (PCC), along with a preliminary exam (PE). The end result of the PCC is either a plea bargain, a decision to actually hold the preliminary examination, or, in most cases, the choice to waive it and have the matter bound over, meaning sent “up” to the circuit court for further proceedings. Unless a case is pled out or dismissed in the district court, the next step thereafter is what’s called a circuit court arraignment, which is largely a repeat of the district court arraignment. Although the circuit Judge can, they usually don’t make any changes to the bond at this stage.

After the circuit court arraignment, the case will then be scheduled for a pre-trial. In essence, a pre-trail is any meeting after the arraignment, but before a trial, between the prosecutor and the defense lawyer to discuss the case. There are usually several (and sometimes, a lot) of pre-trials. This is where the key issues of the case are discussed, and plea and sentence bargains negotiated. In the real world, the vast majority of DUI cases, including 3rd offense DUI cases, are resolved through negotiations at the pre-trial stage.

In part 1 of this article about 3rd offense DUI charges in Michigan, we began by acknowledging the central importance of the evidence, and then, after reviewing the actual OWI law, boiled the relevant parts down into plain English. From there, we briefly looked at the potential driver’s license penalties. Here, in this 2nd part, we’ll see that, while the court process for 3rd offense DUI cases is similar to both 1st and 2nd offense cases, there are some significant differences, as well, beginning at the very first step – the arraignment:

ARRAIGNMENT. At some point, either before, or after a person’s release from jail (after often happens when there has been a blood draw), he or she will be arraigned by either a Judge or a Magistrate. At an arraignment, a person is informed of the exact charge or charges against him or her, the maximum legal penalty that can be imposed for each, and is then apprised of his or her constitutional right, including the right to remain silent and the right to a lawyer By far, the most important purposes of this first hearing is for a bond to be set, and the conditions of that bond to be established.

As far as the money part of bond is concerned, if a person has already posted some to get out of jail, most courts will consider that amount adequate, and let it stand. Usually, the biggest issue to be resolved at arraignment for a 3rd offense DUI are the conditions of bond. For example, it is a standard condition in all 1st and 2nd offense cases that a person completely abstain from the use of alcohol and all other intoxicants (including recreational marijuana), and that he or she provide regular breath and/or urine tests to prove compliance with the court’s “no drinking” order.

If you’re facing a 3rd offense DUI in Michigan, you already know it’s a felony, and that it’s serious; you don’t need anyone to make things worse by ratcheting up your anxiety. Fortunately, a 3rd offense DUI is manageable, and, if handled properly, doesn’t have to be the nightmare you may fear. This isn’t to say it’s going to be a walk in the park, but the first thing a person should do is take a little time to learn what’s involved in these cases, and then compare what different lawyers have to say about them, rather than rushing out and make any quick (and regrettable) decisions out of fear.

No matter what, people are vulnerable when they’re afraid. A lawyer should never take advantage of that, but rather, should do what he or she can to help or protect any such person and calm his or her anxieties – especially about those fears that are misplaced. That’s really what I hope to do in this article, as I’m sure it will be read by at least a few people outside the geographic area where my team and I concentrate our DUI practice. Because a 3rd offense DUI involves so many factors, we’ll divide our examination into 6 parts in order to adequately explain how things work, and what a person can expect.

That may sound like a lot, but it’s not. I’ve written this piece in a very conversational tone, and it’s really a fast read. I started out trying to keep it as short as possible, but anything less than what’s here would have to leave out important points about 3rd offense DUI cases. To be sure, any kind of comprehensive examination of 3rd offense DUI charges in Michigan would be an entire book in an of itself, so our goal here will be to introduce and summarize the most important aspects of them. There is simply no way to lump all of these things into anything less without skipping over crucial points.

Believe it or not, one of our strongest selling points, as a Michigan DUI law firm, is telling people to check around and compare lawyers. A recent phone call, though, made clear that while the idea of exploring your options for representation is important, a person should also have some kind of idea what he or she is looking for before starting that process. This article is not going to be some platform used to tell the reader what he or she should be seeking, but rather a way to help him or her define those things. This quest for representation really becomes the question: What are you looking for in a lawyer?

The simple truth is that almost every business and practice, and especially those online, are trying to sell themselves in some way or other. Could you imagine coming across a lawyer’s website that basically said, “We’re really busy, and don’t need any more clients, but if you insist on calling, maybe we can fit you in?” Most DUI lawyers have some kind of marketing message(s), and often one that’s primary, and a few others that are secondary. Thus, the reader may find websites touting various combinations of the owner’s experience, fee structures, reviews, results, and/or testimonials.

To get this out of the way early on, our firm is no different; we are in business to attract new clients. Our main marketing message in DUI cases is about results, and our secondary messages focus on the fact that we provide a ton of real information, are the only firm to publish its prices online, and that we encourage everyone looking for a lawyer to do some comparison shopping (although we’re clear that we are not interested in competing with anyone else on price). The whole point of “comparing” is for a person to find a lawyer who can provide what he or she is looking for.