For most people facing a 1st offense DUI in Michigan, the case marks their first adult contact with the criminal justice system. The sense of apprehension about what will follow can fill the coming days with a sense of fear and doom. In this article, I want to alleviate those misplaced concerns, not with the balm of patronizing reassurance, but rather with a simple overview of how things really work, and why that means, even in the most clear-cut of cases, that things aren’t anywhere near as bad as they seem. We’ll see that most of the things that people worry about don’t ever happen, and that with some intelligent and proactive effort, we can avoid or minimize many of the other, less talked about consequences of a drunk driving charge.
A DUI can, in theory, have up to 6 steps: Arrest, arraignment, pretrial, trial, screening and sentencing. In the real world (meaning in over 99% of cases), there is almost never a trial, and the arraignment stage can usually be skipped, as well. This means that most people will go from arrest to pretrial to screening, and finally to sentencing. Some courts will not allow the arraignment to be waived (skipped). This means, then, that you will go through 4 or 5 of the steps listed above. As noted, very few cases go to trial because almost none of those (0.17% – that’s zero point one seven percent) ever win; more on that later. Accordingly, we wont waste any time talking about a trial that isn’t going to happen anyway, and focus, instead, on the steps just about everyone will take.
Arraignment. You already know what happens between the time of your arrest and release, so there’s little use in going over that. We’ll begin with what happens after you get out of jail and get your car back. In some few cases, a Judge or Magistrate may have already arraigned you before you were let out of jail. In most cases, however, you will either be given a court date or instructions to follow up to learn when you’re due in court. This first court date is called an “arraignment,” and all it really amounts to is a proceeding where you’re told exactly what charge or charges you’ll face -OWI (Operating While Intoxicated), High BAC, DWLS (Driving While License Suspended) and/or Open Intoxicants in a Motor Vehicle. Also, your various constitutional rights are outlined. In most (although not all) local, Detroit-area courts, this arraignment can be “waived” by the lawyer you hire so that you don’t have to go to court or do anything. Although not very common in 1st offense cases, some people wind up having to “test” as a condition of bond or release, meaning they have to provide breath or urine samples as required by the presiding Judge or Magistrate. This is one of those things that you understand rather well if (and because) you’re doing it, and that we can otherwise explain later, if you’re not and it becomes necessary…
Pretrial. Within a few weeks of your arraignment date, you’ll go to court, with your lawyer, for what is called a “pretrial.” This is a more substantive conference where your lawyer meets with the prosecutor to discuss the evidence in your case. In the overwhelming majority of cases, the evidence is strong enough so that the Judge will not toss it out. Even so, it is often at the first pretrial (there can be several pre-trail conferences) that your lawyer gets a chance to examine and discuss it all with the prosecutor. If there is a chance that the evidence against you is compromised, this is an opportunity for the parties to discuss it and see if any agreement can be reached about how strong it is – or isn’t.
As noted above, there can be multiple pretrials. A pretrial is just that; a meeting prior to, or “pre” trial. For the reader it might be easier to think of a pretrial as a meeting rather than anything else, because that’s primarily what it is. The ultimate goal of a pretrial is to come to an agreement to resolve the case without an actual trial, and that almost always happens. I get a lot of questions about this; someone will ask if there has to be or will be a trial in his or her case, and the answer is “no.” A trial is held when you believe that the judge or jury will hear the whole case and agree that you’re not guilty. This rather rarely happens, despite all the money handed over to lawyers in the misplaced belief that it can. In fact, the numbers are clear, and they come from an annual audit that the Michigan State Police are required to conduct every year, called the “Annual Drunk Driving Audit” where every DUI arrest in the state is tracked from beginning to end. The records of each and every court are examined, and the results published. The last year for which numbers are available is 2013 (the audit runs about 2 years behind; there is a lot to it, and the curious reader should click on the link to see for him or herself) and they are both consistent with past years and very telling. In 2013, there were 32,752 convictions in Michigan for the most common DUI offenses (OWI and OWVI, or what is known as impaired driving). Here’s the kicker: Only 58 people charged with either of those offenses went to trial and won. That equals 0.177 percent. That’s zero point one seven seven. And while we don’t know how those people ultimately got off, we do know that those odds are worse than terrible.
This means that you are about 200 times over, overwhelmingly NOT likely to go to trial. That is not to say, however, that we don’t sometimes “hold out” and posture as if a trial may occur. In certain situations, the opposite of “hold out” is “sold out.” Seasoned negotiators know that you never look like your going to take the first offer. Here’s one of those common sense things you never think about, until you think about it. Say you were going to sell your car, and I asked you how much you were going to ask for it, and you told me something like, “Between $4500 and $5000.” You just gave yourself away; why would I ever offer you more than the lowest figure you said you’d accept? In fact, I might start off with an offer of $3500. Similarly, in all negotiations with the prosecutor, a lawyer can never even hint that he or she isn’t willing to fight everything for the sake of fighting. Going back to those audit numbers, we don’t know how many of those convictions came after a prosecutor refused to negotiate a better deal, and how much time he or she sacrificed obtaining a conviction that, in retrospect, may have not been worth the cost in time, where perhaps the case should have been settled by a more lenient plea deal.
At any rate, this all means no trial. Your case will be settled by a plea, or plea bargain, unless the facts line up in such a way as it can be “knocked out.” These plea deals are reached as a result of pretrial conferences between your lawyer and the prosecutor.
Screening. Within about 2 to 3 weeks after you work out a plea deal, you’ll return to court, by yourself, to meet with a probation officer for a screening. This is where most of the legal stuff ends. However, this is also where the really important stuff begins. In a very recent article, I noted that THE most important part of a DUI case is the legally required alcohol assessment. This is a written “test” you’ll complete under the watchful eye of the probation officer. The test is scored using an answer key, and your score is checked against that key to determine if you have, or are at risk to develop an alcohol problem. If this sounds far short of being clinically sound, that’s because it is. Unfortunately, this is also the way the system functions, although I turn the tables on that and use it to my client’s decided advantage. As much as involved in this, I have the overriding advantage that, beyond just being a DUI lawyer, I bring a formal, post-graduate clinical education in addiction studies to the table, as well. What that ultimately means to my clients is that I can make sure you get a far better and more lenient result in your case than you otherwise would if your lawyer didn’t have this specialized training.
Beyond merely having you complete an alcohol use and “diagnostic” test, the screening process involves a whole investigation into the facts of your case, and your background. This is why it is also often (and alternately) called a PSI (for “pre-sentence investigation) and/or assessment, amongst other terms. Whatever it’s called by any given Judge, it means that you will meet with a probation officer who will gather information about you, your DUI case, and your relationship to alcohol (obviously, the written alcohol screening test is a major part of this particular inquiry) and then combine all of this into a legally mandated sentencing recommendation report that summarizes everything for the Judge and suggests what kind of sentence (meaning, specifically, counseling, education and/or rehab) that you should get to make sure this doesn’t happen again.
Make no mistake, this is THE most important part of a DUI case, and anyone who doesn’t entirely agree is completely and dangerously wrong. Did I say that strongly enough? You can hire the world’s greatest trial lawyer, or team of trial lawyers, but if your case isn’t tossed out of court on a technicality or a verdict (remember, 99.83% of all DUI people didn’t win that jackpot), then the probation officer’s sentencing recommendation is the single most important element in deciding what will happen to you. As a predictor, it is nearly clairvoyant, because in the real world, it is essentially the blueprint, or script, that the Judge will follow in passing sentence upon you. Do well at this stage of your case, and you’ll have a smooth ride home. Miss something, and you’re going to have a much rougher ride for the next 12 to 18 months. Specifically, we’re talking about having to endure classes, counseling and testing that you might have otherwise been able to avoid had you been carefully prepared for your screening.
Sentencing. This is when, for all practical purposes, the sentencing recommendation is read – and then ordered – by the Judge. Normally, your sentencing takes place about 1 or 2 weeks after your screening. Beyond this oversimplification, however, lies what people really think of when they wonder, “What’s going to happen to me”? Not to be obtuse, but you show up on the day of your sentencing to be sentenced. If you’re a repeat offender, you find out if you’re going to jail, or not. In a 1st offense case, that’s not on the menu, so although you don’t have to worry about leaving the court through the back door in handcuffs, you want to walk out the front door without the weight of a thousand programs and obligations on your shoulders. However well or poorly you’ve done at the screening stage, the sentencing is when you find out what will happen to you, and then have to live with it.
Of course, you get to address the court prior to the Judge actually imposing sentence, and so does your lawyer. While this is important, most lawyers tend to misplace their concern, and therefore their efforts, by focusing on what to say to the Judge at sentencing. To be perfectly clear, what I say can, and often does have a profound effect on my client’s case, but that’s because of all my clinical training. For the most part, anything worth saying should have been said to the client before he or she went in for the probation screening in order to prepare him or her for it. For most lawyers, those things addressed to the Judge are the very picture of “A day late and a dollar short.”
Moreover, because probation officers are forced, when doing the alcohol assessment, to “play” clinician, they very often get it wrong. And to be clear, that NEVER means that they miss an alcohol problem (although I can make that happen); instead, it means they tend to find a problem (the relevant clinical terms here are “over diagnose” and “pathologize”), or, most often, the potential for a problem to develop, where there really isn’t one. Beyond being able to spot this, and identify the real clinical shortcomings of such conclusions, I can explain this to the court better than anyone. This does not mean that the Judge nods in agreement with me and just lets me have my way. Rather, it means that I can convince the Judge that the issues I have brought up require, in the interests of fairness, further evaluation and investigation by a real clinician. Again, there’s a lot here, but the bottom line is that I can avoid having my client get “hammered” with all kinds of probationary conditions like classes, counseling and treatment.
However you cut it, your sentence IS what happens to you. All in all, a DUI case will normally take anywhere from 2 to 4 months to wrap up from the time of your arrest. One of the biggest delays, especially where a blood test has been done instead of a breath test, is the wait from the time of the arrest until the result arrives and the charges are actually filed in court. This really amounts to the time between arrest and arraignment, even if the arraignment is waived. Once the case starts, your first pretrial will occur 2 to 4 weeks later. In many cases, you’ll have another pretrial about 4 weeks after that (I usually get and take the extra time to investigate the case, and for other “strategic” reasons), around which time we’ll finalize our plea deal. Within about 2 weeks, you’ll be screened, and in another 2 weeks or so, sentenced. These time frames are approximations, at best, because some courts (Ferndale, for instance) move very fast, and others mover much more slowly.
The problem with a short article like this is that I could write page after page about every one of the steps outlined above. I actually have done that, and you can find many very specific articles within the DUI section of this blog. As I noted at the outset of this article, however, I wanted to outline and overview the steps in a 1st offense DUI case, and this is about as concise as we could go without losing too much context and meaning to make any sense. If you are facing a DUI in any Metro-Detroit area court (meaning any court in Macomb, Oakland or Wayne County) and you’re looking to hire a lawyer, call my office (586-465-1980) anytime M-F, between 8:30 and 5 to see how I answer your questions and explain the process.