Getting a 3rd Offense Felony DUI Dropped to a 2nd Offense Misdemeanor in Michigan

In my DUI Practice, some of the most nervous callers with whom I speak are, not surprisingly, those charged with a 3rd Offense (Felony) Drunk Driving. This article will focus on one such case I am handling now, and how I got the Prosecutor to reduce the charge from a 3rd Offense Felony to a 2nd Offense Misdemeanor at the very first Court date. This is a longer story, but I’ll keep it to one installment rather than breaking it up into two parts.

A few years back, the Michigan DUI Law was changed to make a 3rd Drunk Driving charge after 2 prior DUI convictions, at any point in a person’s lifetime, a Felony charge. In other words, if a person has 2 prior DUI convictions on their Record, no matter how long ago, and thereafter picks up another DUI charge, that 3rd charge is a Felony. This was a huge change from the prior Law, which used to require that the 3rd charge occur within 10 years of the person’s first conviction.

Rum 2.1.jpgIt is simply impossible, in the real world, for a person to emerge from Jail, after a 3rd (or 4th, or 5th, or whatever) DUI Arrest an NOT know that they are, or will be, facing a Felony. Therefore, the how and why of such a charge really becomes academic, as anyone facing it rightfully focuses their concern on what is going to happen to them as a result of it.

In this case, my Client had been socializing at Macomb County marina, and decided to go home. Admittedly, he had consumed a number of drinks, and as he was attempting to leave, he struck a boulder at the side of the road, causing his airbags to deploy and one of his front tires to go flat. The rim of the tire was damaged, as well, and he was more or less “beached” on the boulder. Someone called this in on his or her cell phone, and the Police headed over.

A few minutes later, by the time the Police were arriving, my Client had managed to get his vehicle off the boulder, and was trying to exit the marina. Thus, the as the responding Officers entered the marina, they were greeted by a vehicle with a banged up front end, deployed airbags, a flat front tire and a bare, damaged rim dragging along the roadway, shooting sparks, heading toward them. They activated their lights, blocked his path, and stopped him.

As they made contact with my Client they found him to be cooperative, albeit kind of “out of it.” When one of the Officers asked him how much he had to drink that night, my Client gave one of the world’s most popular answers: Two drinks. Ask any Cop or DUI Lawyer what the most common response is to the question of how much a person had to drink, and most often you’ll hear either “a couple,” or “two.” Once out of his vehicle my Client had some balance problems, and didn’t do particularly well on the Field Sobriety Tests. For good measure, I obtained the Police car video to make sure the Police Report accurately reflected how my Client performed, and found that there was no discrepancy.

This is important. As a general rule, if there is in-car video, it should be obtained. If the video shows the Client staggering and stumbling all over the place, the Police Report, which is the Officer’s account of what happened, needs to be consistent with that. Thus, if the Police report indicates that a person had difficulty holding his or her balance, or did not do very well on the alphabet and counting backwards tests, the video better reflect that. Even if a person is obviously drunk, the Police Report needs to be an accurate, truthful account of what happened, or the Officer’s credibility is called into question.

In some cases, of course, there is no video evidence. In cases like the one we are reviewing, the Officer’s account and the video were consistent. But that’s not always the case, and a Lawyer will never know unless he or she does their due diligence and properly investigates. This is why it is critically important to leave no stone unturned in determining if there is some way to beat the charge, or challenge the evidence against a person, whatever that evidence may be.

After the Field Sobriety Tests, my Client was placed in the back of the Police car, and agreed to take a Preliminary Breath Test (PBT). He blew in excess of a .20. He was taken back to the Station, where he politely (that’s important) refused to take the “official” Datamaster breath test. My Client had been cooperative with the Arresting Officers all along, and explained that hewould rather not take the breath test, come what may. A warrant was therefore obtained to draw his blood, and he was taken to a nearby medical facility to have it done. He remained polite and cooperative, offering no resistance to the blood draw. Once completed, he was taken back to Jail.

As is usual, he was out the next morning. In this case, because blood had been drawn and no results would be forthcoming for a while, he was not Arraigned, nor was he give any kind of return Court date. Instead, he was told he’d be contacted once the results were returned from the State Police Crime Lab. He went home, hopped on his computer, and that’s what led him to me.

He came in to see me a few days later, and I told him it might be a while until he heard anything. Like most people, as days turned into weeks, and weeks stretched into months, he wondered if maybe they forgot about him, or if his blood sample had gone crashing to the floor, destroyed forever an unable to be tested. He wondered, could this delay signal the collapse of the case against him…?

I cautioned against that. I told him that such a result was unlikely, and that, because he had never been charged early on, there was not “Due Process” of Law issue. I told him I have seen cases where a year went by before an uncharged person ever heard anything.

Then, in late June, he got a call from the Police Department; the blood results were back. He promptly (and again, politely) told the Officer he had hired me, and gave him my number. The Officer called me, and we agreed on a mutually convenient time for my Client to go to Court doe his Araignment. We further agreed that because my Client had been so cooperative (and polite, to boot), the Officer in Charge of the case (called an OIC) would advise the Judge that he felt a personal Bond (meaning my Client would have to post no money) was appropriate. On the agreed date, my Client went in, pled “Not Guilty” at his Arraignment, and was released on a personal Bond. A first Court date for what is called a Preliminary Examination was set for the next week.

By Law, a Preliminary Examination, the first substantive step in a Felony case, must be scheduled within 14 days from the date of the person’s Arraignment.

Meanwhile, I had requested the Police Report and the Police in-car video. Reviewing everything, there wasn’t much question about what happened. It was pretty clear my Client had consumed a few too many, tried to leave the marina and hit a rock, causing his airbags to deploy. He had blown out a tire and ruined a rim, then tried to drive away. His car was badly damaged, so he wouldn’t have made it very far, anyway. The Police stopped him, and could tell he was under the influence. They gave him a few Field Sobriety Tests that he rather clearly failed, and thereafter Arrested him. At the Station, he refused to take a breath test, necessitating that a Warrant for a blood draw be obtained. Finally, the State Police Crime Lab test of that sample came back, showing my Client’s BAC to be .20.

I carefully reviewed the facts surrounding the blood draw; there are some rather highly detailed protocols that must be observed when blood is taken as evidence in a DUI case. In this instance, there was no defect in the procedure used for extracting my Client’s blood. A State Police-issued kit, including a vial with the appropriate sodium fluoride preservative into which the blood must be deposited was used, and the chain of evidence from the taking of the blood sample to its actual testing was intact and legally solid.

I walked into Court on the date of the Preliminary Exam having memorized the facts of my Client’s case. As I went into the conference room to meet with the Prosecutor, I sought out the Officer in Charge (OIC). I found him, and while the Prosecutor was busy handling other cases, began a dialogue with him. As it turned out, the Prosecutor didn’t have his file. I asked the OIC if I could look at his Lab Report, and he let me. This is as good a place as any to hit the “pause” button for a moment.

Looking back, it was right here where all the skills of a 20-plus year veteran DUI Lawyer came into play. Of course, being a Michigan DUI Lawyer means knowing and understanding Michigan DUI Laws, but it also means being a first-rate diplomat, and a skilled negotiator. To effectively handle DUI cases, a Lawyer must know the science behind breath and blood tests, but he or she must also understand the principles of alcohol and substance abuse testing in the clinical setting. A Lawyer needs to understand everything about an alcohol problem, from its onset, to its development and progression, through its diagnosis, all the way to the treatment of it Recovery from it. At various times in the process of handling DUI cases, any one of these things becomes important; at other times, many or even every one of them are needed at once. This was one of those “everything” moments.

People skills are an important part of what I call the “voice” of the Lawyer. A Lawyer has to be charismatic. You don’t get people to do things for you without being, to some extent, “charming.” Nobody likes a jerk, no matter how important or powerful that person might be. As a DUI Lawyer, the art of diplomacy means, unless there is some way to get the case “knocked out,” dealing with the Police and Prosecutors in such a way as to try and turn them into allies, rather than adversaries. Saying “How can we work this out” invokes a lot more cooperative spirit than just barking, “I need you to agree to this” or asking “what can you do for me?”

In this case, I first approached the Officer in charge and struck up a conversation with him. I told him I was relieved that, right out of the gate, my Client was open to the idea that he had an alcohol problem. I informed him that my Client had enrolled in a good outpatient treatment program run through a local hospital system, and was feeling better. I let our conversation take its course; it was important that I learned what that Officer felt was important about my Client, and the case. In the end, the Officer expressed that he would have no problem with my proposal that the Felony 3rd Offense DUI charge be dropped, and that my Client instead be allowed to accept a Misdemeanor charge of 2nd Offense DUI.

Then I met with the Prosecutor. I’ll spare the reader the details of that meeting, save to say that, again, it was the art of diplomacy that carried the day. I had no compelling legal argument to make; the case itself was solid enough to withstand any challenge. This is exactly what I mean when I say there is a lot more to being a DUI Lawyer than just knowing the Law. If my skill set were just limited to legal analysis and argument, I’d have simply been forced to admit defeat and go home. Instead, I had to call out some other skills, and, in the end, I walked my Client out of Court having avoided the whole Felony charge altogether.

Sentencing will take place later. In the meantime, I have an appointment with my Client to begin preparing him for the most important part of what’s left of the case – the legally required alcohol assessment test. I need to make sure my Client is ready to go in to meet with the Probation Officer who will interview and test him. Remember, based upon the results of that test and the impressions the Probation Officer gets from interviewing my Client, he or she must forward a written Sentencing Recommendation to the Judge. I know, and anyone reading this who has been though this before knows, as well, that whatever the Probation Department Recommends is pretty much exactly what the Judge is going to Order for a Sentence. This means that making sure I help my Client procure the most lenient Recommendation possible is the most important task before us. In every DUI (or other Criminal case, for that matter), whatever the Probation Department Recommends is usually exactly what the Judge Orders.

Consequently, producing good results means producing a favorable Recommendation, and not just showing up at Sentencing thinking that something said there is going to have any decisive impact on the outcome of the case. As with so much in life, good results are produced in the preparation. There is no substitute for time and effort, and there are no shortcuts. As the song goes, good work is the key to good fortune.

I expect a very favorable Sentence for my Client. Even though he has 2 prior DUI convictions, because I was able to get the Felony charged dropped, I am planning on helping him get a Probationary Sentence that calls for no Jail.

Stay tuned….

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