Michigan Criminal Defense Lawyer Blog
An important reality present in all DUI cases is that a person is essentially defined, within the court system, by his or her BAC result. This is true independent of the particular DUI charge he or she is facing, whether it’s Michigan’s “superdrunk” High BAC offense, or simply OWI (Operating while Intoxicated). Both in theory and in practice, a person’s BAC score is considered the true measure of how drunk he or she was at the time of his or her DUI.
Many people aren’t aware of the simple fact that, within the court system, the focus of a DUI case is really on his or her drinking, and not their driving. In our practice, the first question we have about a new DUI case is “where did it happen?” because for us, as DUI lawyers trying help people out of such a jam, location is the single most important factor in how a case is likely to turn out. “What was his/her BAC?” is usually the second question we’ll ask because the answer to it is usually not as important as the answer to “where?”
By contrast, the idea of location couldn’t matter less to any court, because the case is already there, and, as the saying goes, “it is what it is,” although it might be more accurate, in this context, to say “it is where it is.” Instead, what’s normally the second consideration to a DUI lawyer – BAC result – is the first consideration to a court. Thus, whereas the first question we’ll ask is “where did it happen?”, the first thing anyone in the court system will want to know is “what was the BAC?”
A real world example will help clarify this point: A while back, I was handling a DUI case that had been assigned to a somewhat “tough” local Judge. After we had placed a plea bargain on the record in the courtroom, but before we left the building, my client suddenly remembered to ask me about getting her testing schedule changed in order to accommodate her work schedule.
I went to the Judge’s office, and was ushered into the Judge’s chambers, along with the prosecutor, to make my request, off the record (by law, neither party can communicate with the Judge about a case outside of the presence of the other party).
As soon as I made my pitch to the Judge (the prosecutor had no objection), the first thing he asked me was “what was her BAC?”
As is turned out, my client’s BAC was rather high, so when I told the Judge, he immediately replied to the effect that she had a drinking problem, but did, nevertheless, agree to amend her testing schedule in a way that accommodated her work schedule, but made sure she couldn’t somehow figure out how to manage to get away with drinking, either.
What I’m trying to convey to the reader is that the way the Judge asked “what was her BAC?” was instinctual, and reflexive. And that goes to the whole point of this article: In the court system, a person is essentially characterized by his or her BAC result before anything else.
In my example case, it couldn’t have mattered less to the Judge if my client had been a 6 foot 7-inch, 40 year-old finalist in “The World’s Strongest Man” competition, or had been a 5 foot 1-inch, 23 year old horse racing jockey, nor what his or her gender was.
Instead, the Judge’s impression of her as presenting with a drinking problem was entirely based upon her BAC result.
There’s more to this, though, than just the Judge. That’s why I use the term “court system.”
While the Judge alone does have the final word about things, it is very important to remember that what ultimately happens to a person (in other words, what his or her sentence turns out to be), is a direct result of crucial input from the probation officer.
This means that how the probation officer perceives things, and particularly how he or she perceives the person facing the charge, is really critical to the outcome of a DUI case.
One of the probation officer’s main responsibilities in every DUI case is to generate a sentencing recommendation advising the Judge exactly what kind of sentence to impose upon a person, including things like education, counseling, testing and, of course incarceration (or not).
The process that leads up to the probation officer writing up this recommendation is called the “PSI,” which stands for “pre-sentence investigation.” The PSI is basically the blueprint for a person’s sentence.
By law, anyone going through a Michigan DUI must undergo a mandatory alcohol assessment. This is a written test, and each of a person’s answers have a point value. These points are added up, and then compared to a scoring key.
Depending on that score, a person is then “diagnosed” as either having a drinking problem, being at risk to develop one, or otherwise not having any kind of issue with alcohol.
In addition to the alcohol screening test, however, a person must also meet with the probation officer and provide all kinds of background information about his or her life, from where and to whom he or she was born, where and with whom he or she was raised, through his or her childhood and adult life, right up to the time of the incident.
Beyond learning about a person’s background, the probation officer also assesses what’s currently going on in the person’s life, including where they work, their current living arrangements, and any stressors (or support systems) they have.
Taking all of this into account – the person’s results on the alcohol screening test, his or her biographical information, and, of course, the DUI incident itself (the most prominent feature of which is his or her BAC result) – the probation officer then writes up a sentencing recommendation that is sent to the Judge.
If the reader remembers only 1 thing from this article, then let this be it: every Judge, in every court, follows this recommendation very closely, if not to the letter. You will NEVER encounter a Judge who orders a sentence that deviates in any significant way from what the probation officer has recommended.
There is a whole “science” to working through this strategically, and our practice focuses heavily on that by preparing our clients for both the mandatory alcohol screening test and the overall PSI process (especially the interview with the probation officer). I have written extensively about the PSI and the alcohol screening, both within my various blog articles and on my website.
Any worthwhile discussion of the PSI and the alcohol screening test goes way beyond the purpose of this article, so I’d direct the reader to explore the DUI section of my blog to learn more.
Here, I just want to make the simple point that a person’s BAC result essentially defines him or her in a DUI case. As I noted at the outset, this is true whether a person is charged with regular OWI or the more serious “High BAC” offense.
Indeed, there is at least one local jurisdiction that won’t charge anyone with a High BAC offense, no matter what his or her blood test result, and there are plenty of others where we can often negotiate a High BAC charge down to either simple OWI, or even all the way down to Impaired Driving (OWVI).
While it’s easy to say (and even understand) that a person going through a DUI is largely defined within the court system by his or her BAC result, it can be a lot harder to swallow when it’s your case we’re talking about.
In the real world, one of the most common things we hear from people who present with elevated BAC results (often well above .20, and sometimes even more than 3 times the legal limit of .08) are things like “I’m not a big drinker,” or, “I don’t drink that much!”
Let me be perfectly candid here: nobody, and especially nobody in the court system, buys that.
At all.
In fact, if a person is somehow drawn to a lawyer who seems to go along with that kind of statement, then they’re either hiring an idiot, or someone who will just agree with then and tell them what they want to hear in order to get paid.
Both of those things are dangerous. Whatever else, you need a DUI lawyer who will tell you what you need to hear, not just what you want to hear.
No matter what, a BAC result shows how much alcohol was in a person’s system at the time that he or she took a breath or blood test. This is true independent of anything he or she may have eaten (or not), and just about any of the other explanations he or she may offer for why the BAC is so high.
Sure, there are a few things that, in theory, can affect those results, but in the real world, they rarely come up.
If a person has been drinking throughout the night and then tests out at .19, then the result is probably accurate. By contrast, if a person really did have only one beer 2 hours before, and somehow still managed to blow a .19, then there’s an issue with the test.
As I noted, though, that rarely happens. Instead, what does happen, in the real world, is that most people underestimate what they had to drink.
The bottom line is that, no matter what a person says about it, he or she will still be defined within the court system by his or her BAC result. Unless he or she challenges the BAC result and PROVES it to be wrong, the more they insist things like they didn’t drink that much, or they’re not any kind of big drinker, the more they just look like they’re in denial.
The way to avoid being perceived as “in denial” is simple: just shut up.
Sometimes, the best thing a lawyer can do is tell the client to be quiet, and this is one of those instances where that advice is priceless.
Part and parcel of our job is to work with, and work around an elevated BAC result. This involves a lot more than just agreeing with the client and joining him or her in insisting to the court that, no matter what the test showed, he or she really didn’t drink that much, or otherwise isn’t a big drinker.
That’s not lawyering; that’s hanging someone out to dry.
Instead, the lawyer has to do what lawyers should do: charm and and massage and persuade and work the case over until the very best result can be had.
On the one hand, this can mean that the client has to be given a short course in reality, while on the other hand, it can also mean that the lawyer has to convince the important parties that, when it’s true, the client doesn’t have a problem with alcohol, despite an elevated BAC result.
Even if the client does have some kind of troubled relationship to alcohol, or otherwise presents as being at risk to develop some kind of drinking problem, the lawyer needs to make sure that it isn’t perceived and treated as more severe than it really is, and protect the client from getting slammed with all kinds of unnecessary classes and counseling.
Yet for all of that, the simple takeaway from our discussion is that when a person walks into court for a DUI, his or her BAC result is used to identify him every bit as much as one of those blank, peel-and-stick name tags that read “Hello, my name is ______________,” except in that, in this instance, instead of a first or last name, a person can just write in Mister .19, or Missus .18, or Miss .17.
If you are facing a DUI, be a good consumer and do your homework. Read around and see how lawyers explain the DUI process, and how they explain their approach to it.
When you’ve done enough of that, start checking around. If your case is pending here in the Greater-Detroit area (meaning anywhere in Wayne, Oakland, Macomb, or the surrounding Counties) know that all of our consultations are free, confidential, and done over the phone, right when you call.
My team and I are very friendly people who will be glad to answer your questions and explain things. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 248-986-9700 or 586-465-1980.