This is the 2nd installment in a multi-part article about the 11 things you should know to help you find the right Michigan DUI lawyer for your case. Although this analysis is applicable to DUI cases anywhere in the state, my DUI practice is concentrated in Oakland, Macomb and Wayne Counties. To keep each piece manageable, I will skip my usual practice of summarizing what has been previously examined and jump right in from where we left off. In this article, we’ll look at how you should rate the legal skills that matter to your DUI case.
Rate those skills that are important to your case. To put this in perspective, a colleague of mine once pointed out how some DUI lawyers proudly market themselves as certified Datamaster breath machine operators. He then asked, rhetorically, what good would that do for anyone whose entire case doesn’t specifically depend on problems with the breath test evidence, even if his or her lawyer could take the machine apart and reassemble it while blindfolded? The point is that those skills have very limited application. If you hire a plumber to install a new water heater in your home, what good does it do you if he is also certified to do plumbing work on airplanes, or even the space shuttle? And why in the hell would you pay more for that?
The internet has certainly changed the way we look for goods and services. In the legal forum, you can shop for lawyer like you shop for shoes. Today, legal services are marketed much like any other commodity. When you look around, you’ll notice that most lawyers say the same things: we are experienced, we will fight for you, I’m a former prosecutor, or I’m a former police officer, etc. It doesn’t take long before your head starts spinning. I know where I fit into this scheme: I often brag about all the articles I have written and published (more than 340 DUI articles as of this writing), but I also realize that nobody is going to read them all, and that most people are impatient, and don’t want to start digging through something like Jeff’s Encyclopedia of Michigan DUI Law. It’s almost like you’re walking through a carnival, and everyone is barking at you: winner every time, five throws for a dollar…
When you look over the various sections of a lawyer’s website, or read his or her articles, what skill or skills stand out? Beyond whatever qualifications a lawyer may have, the better question is always, “what does that do for me?” If you can’t answer that question, then why are you paying attention? Some lawyers may be amazing trial lawyers. That’s great, if you have a case that goes to trial, but unless you do go to trial over a winnable issue, then that will help you as much as a lawyer who is certified to do plumbing work on airplanes and space shuttles. I often write about producing the best results possible. Because of and through my extensive writings, I have an unsurpassed ability to analyze and explain these things so that my clients can understand what’s going on and why, and know that if I haven’t done that well enough, I’m the kind of person who will gladly answer questions to make those things clear.
That sounds good, but what does it really do for a client? In my practice, it means that I carefully examine every bit of evidence in a DUI case, review the police dash-cam video, and look hard to find anything that can be used to get a case dismissed. I then break it down to my client so that he or she knows exactly where we are. In terms of producing the best possible outcome in a DUI case, I get plenty of charges dismissed because I stand strong and fight when, strategically speaking, that’s the right thing to do, but I don’t make a mess just for the sake of fighting and running up the fees, either.
I know when to compromise, and that means knowing, almost as a matter of instinct, how and when to cut the best deal. Plea bargains are, by far, the way most cases get resolved. Therefore, how well (or not) a lawyer does this will affect the overwhelming majority of DUI charges that are brought in court. The simple reality is that if you’re facing a DUI, it’s almost a certainty that whatever happens to you will, in some part, depend on your lawyer’s ability to effectively negotiate on your behalf. Anyone can step up to the plate and swing at every pitch; do that, and you’re bound to hit the ball at some point. By the same token, anyone can step up to the plate and not swing at anything; do that, and at some point, you’re bound to get on base by walking. The best players, however, know when to swing, and when to stand strong.
While the ability to know when to fight or when to negotiate and procure the best plea bargain possible are critically important skills that I have refined over more than 27 years, what really defines me is my ability to help every single DUI client get a better outcome by preparing him or her for the mandatory written alcohol screening test and probation interview that is required, by law, in every DUI case. In Michigan, a Judge cannot sentence a person for a DUI unless he or she has been “screened,” and this involves completing a written alcohol screening test. Your answers to the questions are numerically scored, and that number compared to a scoring key. That key essentially compares your score to a scale, and that scale goes from not having any kind of alcohol problem to being at risk to develop a problem (this is the biggest “risk” for most 1st offenders), to having an early stage drinking problem, a middle-stage problem, or, in the worst case, to having a serious problem. This, far more than any other single factor, determines what will happen to you in your DUI case.
I cover this rather involved topic in plenty of other articles in the DUI section of my blog and on my website, but the quick version is that after a deal has been reached in a DUI case, but before the person goes back in front of the Judge for sentencing (the “deal” is almost always reached at one court date and the sentencing will take place on a different, separate court date thereafter), he or she must report to the court’s probation department to take this written test and also be interviewed by a probation officer, who will not only score the test (the technical, clinical term is a “screening instrument”) but also interview the person and gather other information in order to create the written sentencing recommendation that gets sent to the Judge for review before his or her sentencing.
This is huge. Every Judge, in every court, follows these recommendations very closely. The law requires that the person facing the DUI read over this recommendation before being sentenced, and be given an opportunity to comment on it to the Judge during the sentencing itself. That, of course, is an important part of my job. Here’s the thing: it has long been known that DUI drivers, as a group, have a statistically significant higher incidence of alcohol problems than the population at large. This means if you’re facing a DUI, you’re automatically part of a higher-risk group, right out of the gate. Remember, I noted (in parenthesis) a few paragraphs back that being seen as having an increased risk for a drinking problem is the biggest “risk” for 1st offenders. All sentencing recommendations are supervisory and educational and/or rehabilitative in nature, so in addition to breath and/or urine testing to make sure you don’t drink at all while on probation, you will also be required to complete things like classes and counseling. And before you ask NOT drinking is a standard condition of DUI probation, as is some kind of testing to make sure you comply.
I can help with this way beyond just being a lawyer, or even a DUI lawyer. Because of my post-graduate training in addiction studies, I understand, from a clinical perspective, how alcohol problems are diagnosed, meaning that I know how these tests work. I know how people get tripped up on them. Remember, you don’t start off and take this test from a neutral position; the court system has an inherent alcohol bias, and it starts with the fact that you’re sitting there, completing this test, as a member of an at-risk group. Even if you do well on the whole testing thing, it is assumed that it’s better to be safe than sorry and that you should be sent to some alcohol education classes. This is where my unique skill set is invaluable and unrivaled. In the real world, beyond merely knowing how to prepare my clients for the screening test, I must often call upon my understanding of the development and treatment of alcohol problems to help produce a better sentence.
Imagine Twenty-something Tina is arrested for a DUI with a High BAC, and it is recommended by probation that she go to AA one time per week for a year. Tina doesn’t have a lot of options for meetings because of her work schedule, so she finds the one that’s least inconvenient and walks in one night, for the first time, to find that it is attended by mostly middle-aged men. Now, they’re probably all nice guys, but their eyes light up when she enters the room and she immediately gets creeped out. Do you think Tina is going to “fit in,” or otherwise find herself sharing much about herself with mostly old men? Wouldn’t it be better if Tina went to some kind of group counseling, or maybe even a women’s group?
Whatever educational or therapeutic benefit AA may have held for Tina went out the window when she cringed walking into a room full of men. This isn’t hard to understand, but how does or would the average lawyer, without a clinical background, know this, much less present it to a Judge? The Judge isn’t simply going to say, “Oh yeah, I see your point, so forget AA.” Instead, a lawyer has to give the Judge a suitable alternative. This comes naturally to me. Tina would be far better off with me as her lawyer.
Here’s another example: imagine you are showing up for your interview with the probation officer. At one point, he or she looks at your BAC (assume it was a .12, which is relatively moderate) and asks if you felt intoxicated at the time you were arrested, or did you think you were okay to drive (this kind of question can be asked many ways, like “how drunk were you?”)? How would you answer that?
Think about it for a moment. What would you say?
It’s natural, when we do something regrettable, to try and “sanitize” how it’s presented to others. Most people, therefore, would be inclined to try and put the best face possible on this, and say something like, “I honestly didn’t feel that I was that bad.” That’s probably true. People tend to feel “okay” no matter how drunk they are, because being drunk impairs one’s ability to accurately self assess. The problem here, though, is that if you say something like you didn’t think you were that bad, you’ve just screwed yourself – royally.
Remember, we used a BAC figure of .12. Honestly, that’s lower than most that I see. Even so, it’s one and a half times the legal limit. By law, you’re considered too drunk to drive at .08. When you hit .08, it is illegal for you to operate a vehicle on the road. When you say something like you didn’t think you were that bad, and your BAC was above the legal limit, that suggests 1 of 2 things: either you are a really big drinker with an established tolerance to alcohol (not good), or you’ll just say whatever you think helps your situation (also not good). Either way, you’ve just talked yourself into more trouble, and probably a whole lot of counseling to go with it.
When I prepare my clients to take the screening test and for the probation interview (we do this at a separate office meeting specifically for that purpose), we’ll go over how to handle this line of inquiry. How exactly it should be done will vary a bit from case to case, and take into account not only your BAC, but other factors, as well. A person who is swerving all over the road with a .12 BAC looks different than one with a .18 who was arrested only because he or she was caught on radar, speeding.
At any rate, that’s the kind of stuff I do best. I think mine is the most important skill set, but I also realize that there are other lawyers with different skill sets who believe that what they bring to the table is the most important. Think of shaving razors, for a moment. Everyone agrees that a dull blade is no good. In a DUI case, the equivalent to a dull blade is a dull lawyer, or one with no defining skill or skill set. On the store shelves, you’ll find single blade razors, twin and triple blade razors, four-blade razors (enough already!). Then there are electric razors; some have 3 rotating heads, others use a “foil” design. Every one will tell you it’s the best. And here’s the thing, what might work best for me may utterly suck for you, and vice-versa. You can see where I’m going with this, and how the lawyer’s skill set ties into who you are as a client, and the kind of lawyer that will be the best fit for you.
The main idea here is to identify the skills various lawyers have, and then rate those that are most important to you, and your case. Once you get a handle on this, you need to resolve your budget. We’ll stop here, and pick up with that in the next installment.