The most important part of a Michigan DUI Case – Part 1

This article will examine, in the way I think it should be done, the most important aspect of a typical Michigan DUI case. You might think that as a Michigan driver’s license restoration and DUI lawyer with a blog this big, I have unbridled freedom to write any way I choose, and about any topic I’d like, but I really don’t. The web experts remind me to keep my articles short and simple, which, at least as far as the short part goes, is a struggle for me. I’ve learned (by force) to incorporate this abbreviated form of writing into my blog posts, and, most of the time, I come away feeling that I’m still able to put up an informational and useful article, despite these constraints. Here, I want to write an intelligent article about DUI in the Tri-County, Metro-Detroit area without having to worry about keeping it too simple, or otherwise having to conform to a format that limits my examination in a way that makes it a bit too simplistic. This article will be divided into 3 parts in order to do the subject justice.

sigmund-freud-theories 1.2.jpgScience and technology are wonderful things. The scientific method helps us test a hypotheses; technology allows us to see and do things that were unfathomable just a few years ago. Yet for all of that, most of what we know in this world is the product of simple observation and experience. Consider driving a car: How many times do you slow down at a familiar yield sign, or near a corner somewhere, even though you have the right of way, because you know people go blowing through it all the time and you’ve almost (or maybe even have) been hit? No one needs empirical validation of the fact that putting your hand on a hot stove will burn…

There are endless things that everybody sees all the time, but few people actually take the time to really think about. Everyone has been a child, and everyone has a sense of him or herself, but it took Sigmund Freud to put it all together and developed the formal concept of the ego, the subconscious, and, for the first time, seriously framed our understanding that childhood experiences are the foundation of who we become and how we process thoughts and emotions as an adult. Today, theories are “tested” using the scientific method. Back when Freud blazed the trail, he just thought about things he observed and wrote down his ideas. Some of those ideas were, admittedly, off the wall (like the Oedipus complex, where every man supposedly wants to marry his mother and kill his father), but others were brilliant (can you imagine a time when there was no concept of one’s ego). Right or wrong, Freud’s theories were, more than anything else, the product of simply taking the time to think about the things he regularly saw.

As a DUI lawyer, there are certain things I have observed again and again that I know every other lawyer sees, but obviously don’t think about very much. Sherlock Holmes once chided Dr. Watson that he went up and down the same set of stairs to their shared flat countless times over the years they resided together at 221B Baker Street; Watson agreed that, of course, he had. When Holmes then asked Watson how many steps were in the staircase, Watson was stumped. Holmes correctly noted to Watson that,” You see, but don’t observe.” Here’s a quick question, then, dear reader; how many steps are in the staircases where you live? Don’t feel bad if you don’t know, because I can’t tell you how many are in the staircases at my house, either. The point is that we see certain things all the time, but never actually spend much time thinking about them. The flip side is that profound discoveries await those who actually try and recalculate and recalibrate what everyone else takes for granted, and that applies to DUI cases as much as it does to anything else…

Okay, so lets get (finally) to the point: Every lawyer who does DUI work knows that what ultimately happens to his or her client is directly connected to the specific sentence that is recommended to the Judge by the court’s probation department in what is called a Pre-Sentence Investigation Report, or PSI. In fact, this correlation is so strong that I call that recommendation a “blueprint” for what is going to happen to the client. In order for this to make sense, you need a quick lesson in how the outcome of a DUI case is reached. The step in a DUI (or any criminal case, for that matter) where a person is told what is going to happen to him or her is the sentencing. Thus, a person is “sentenced” to probation, or “sentenced” to community service, or sentenced to whatever the Judge will require him or her to do (or not do).

In Michigan, the DUI laws require that prior to a Judge imposing a sentence upon someone, that person undergo a mandatory, legally required alcohol assessment. This requires answering questions on a written “test.” This is used to guide the Judge in deciding what to do at sentencing. The assessment relies upon the use of what is technically called a “screening instrument,” much like a multiple-choice test. The test is scored, and that score is used to plot where a person is on the continuum of alcohol use. The goal is to place a person somewhere on the line from having no problem with alcohol to being a last-gasp, inveterate alcoholic, or anywhere in between. Thus, the assessment is supposed to help the Judge understand where a defendant falls with respect to his or her relationship to drinking, meaning whether he or she tests out as not having any kind of alcohol problem, is at risk to develop a problem, has a problem (early, middle or late stage) or is just a hardcore drinker.

In addition to filling out the “test,” a person will have to meet with a probation officer, who will gather detailed background information about him or her. This will include all kinds of information about the person’s childhood, teen and adult life experiences. The probation officer will explore the circumstances surrounding the DUI. Where was the person drinking before the arrest? How much did he or she drink? Who was he or she with? What was going on? How stable (or not) was the person’s childhood? Are there any instability factors present in the person’s life right now?

After scoring the alcohol assessment, gathering background information about the person and examining the circumstances of the DUI itself, the probation officer must draft a written summary and sentencing recommendation that is forwarded to the Judge advising him or her as to what kind of sentence to impose upon the person. This is absolutely huge, and far and away the most important single thing in a DUI case. Anyone who has ever been through a DUI before knows that this “recommendation” is much more like a script for exactly what is going to happen to you than anything else. Every Judge everywhere tends to follow the probation officer’s recommendation very closely. To be blunt about it, you’re dreaming if you think a lawyer is going to waltz into court and smooth-talk the Judge into disregarding to finished product of his or her probation department’s investigation.

That said, when it comes the ability to persuade a Judge to not go along with some part of this recommendation, I truly believe that as a lawyer, I am without equal. Even so, I am keenly aware that it is a fool’s errand to think any Judge will ever significantly deviate from what that recommendation suggests should be done. In other words, the most a person can ever expect in terms of having the Judge not follow the sentencing recommendation is a departure here and there. The conclusion here is both profound, yet simple: A good (lenient) recommendation results in a good (lenient) sentence, whereas a bad (tough) recommendation results in a bad (tough) sentence.

My Sigmund Freud moment occurred years ago when I realized that the way to achieve a more favorable – specifically meaning a more lenient – sentencing outcome was to influence the recommendation itself. Why show up in court and try to fight an uphill battle to convince the Judge to not go along with what his or her probation department has recommended (after a fairly thorough screening and interview process, no less), knowing that he or she is automatically inclined to go follow it in the first place? Instead, why not direct your efforts to influence the recommendation itself, make sure it is favorable and lenient, and then show up in court and ask the Judge to go along with it, knowing that he or she is already predisposed to do just that?

Duh. Duh. Duh!

I don’t think this was some stroke of genius on my part; rather, it was just that I observed something most everyone else seemed to miss when looking at the same thing. Cars have been on the road for over 100 years, and yet it took nearly a century for someone to build in cup holders. Clothes have been hung on hangers nearly forever, yet only in the last number of years has anyone come up with thin, strong hangers to make more room in the closet (I know this because my wife has switched everything over to this newfangled version). Speaking of closets, how long were people running out of room until someone decided to organize closets in a way that gave rise to the “California Closet” and all of its knockoffs? Today no one would build a fast food restaurant without a drive-thru, but 40 years ago, none of the chains had them. The early generation of “drive thrus” were awkward, cumbersome add-ons cobbled onto existing buildings.

My point is that millions of people saw and used these things each day until someone realized something that everyone else had overlooked, or at least not done anything about. Am I the first lawyer to realize how much better it is to get a favorable sentencing recommendation up front, and then urge the court to follow it, rather than trying to fight against a less favorable recommendation, all the while knowing that the Judge will be more inclined to do what his or her probation department suggests in the first place? I don’t know; but I am certain that I am the first to have written about it, and the only lawyer I know who uses this approach.

We’ll stop here for now. In part 2 of this article, we’ll pick up and see how doing well on the alcohol assessment positively impacts the sentencing.

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