Michigan Criminal Defense Lawyer Blog
In part 3 of this 4-part article, we focused in on the PSI (pre-sentence investigation) phase of a Michigan OWI case and the legally required alcohol assessment test that’s a part of that. The whole reason for the PSI is for the probation department to generate a written report and sentencing recommendation that is sent to the Judge to be used in deciding what to do to you.
Here, in part 4 we’ll see how this all comes together at the last stage of the court process – the sentencing. This is when you finally stand in front of the Judge to find out what’s going to happen to you. As I noted before, most of what will be handed down by the Judge comes directly from the probation department’s report.
By law, when you show up for sentencing, you and your lawyer are required to read the probation department’s report and recommendation and check for errors. Later, when the Judge calls your case, he or she will ask if you and your lawyer have read it over, if you have any corrections to make. This is where you point out if and where anything is stated incorrectly, like your name, date of birth, prior record and such.
Then, your lawyer is asked for his or her comments regarding the recommendation part of the report, and what, if anything else, he or she has to say on your behalf. This is really key…
Judges are all people, and just like everyone else, every Judge in every court is different. No matter how well-spoken a lawyer may be, knowing the idiosyncrasies and inclinations of your particular Judge is a starting point to knowing what to say, and, equally important, what not to say, at sentencing.
Every professional athlete, for example, studies his or her opposition. In football, each team watches film of the other team; same with any fighting sport, like boxing or MMA. If I’m representing a 2nd time DUI offender in a jurisdiction without a sobriety court and who I’d like to transfer into a different jurisdiction’s sobriety court program, I had better know if his or her Judge will allow that.
There are some Judges who will not all such a transfer, no matter what, so not only is asking for that a total waste of time as a sentencing strategy, but then you have to ask, what has a lawyer done to help the client in a case that’s not going anywhere? That’s like bringing chopsticks to a soup dinner.
This may sound harsh, but it’s true: sentencing is where your lawyer either shines, or not.
When you’re standing in front of the Judge who is going to decide what punishment and consequences you receive, you had better have spent your money on a lawyer who is exceptionally persuasive. The very LAST thing you need is some attorney who is indistinguishable from the larger herd of lawyers that just drones on about the same old stuff, like your age, job, and other generic blabber about how you regret this incident, want to move past it, and get on with your life.
Instead, you need a lawyer who engages the Judge, captures his or her attention, and who can explain, in short order, things like who you are as a person and how that figures into something like this never happening again. In short, you need a lawyer with charisma to spare.
Beyond all that, you’re going to have to address the education/counseling/treatment part of your sentencing recommendation. Remember everything I said earlier about how the alcohol assessment and sentencing recommendation that follows is essentially a blueprint for what’s going to happen to you in a DUI case? I wasn’t exaggerating.
That’s why thorough preparation is so important. When I stand in the courtroom, I am almost always the foremost expert and have the most formal training regarding addiction issues because of my post-graduate education in the development, diagnosis and treatment of alcohol and drug problems. And do you know what can be said about that?
Whoop-dee-doo.
That, and a dollar might buy you a cup of coffee…
Although I can argue against a treatment recommendation better than any lawyer you’ll probably ever find, it matters very little because, as I keep saying, every Judge in every court follows his or her probation department’s recommendation very closely. Sure, I can toot my own horn and sound really impressive for a few minutes, but in the real world of DUI cases, that alone isn’t going to do or mean Jack $hit at sentencing.
Instead, I have to use my clinical knowledge and legal skill to convince a Judge that the probation department’s recommendation is not clinically sound, or is somehow questionable, and then get him or her to agree to let my client be evaluated by a real, practicing clinician. I have to make clear to the Judge that although I am not a practicing clinician, neither is the probation officer, either, and that’s key. It’s like having 2 medical school graduates who don’t work as doctors discuss someone’s medical situation.
The best thing to do, instead of listening to them hypothesize, is have a real, practicing physician who concentrates in that area of medicine do an exam and evaluation. However, because I at least speak the language of clinicians, I can jump in and save my clients from all kinds of unnecessary counseling and/or treatment, or at least help them avoid getting pushed into some burdensome treatment program that’s just not right for them.
It is a sure thing that the courts are NOT worried about individualized help for DUI defendants. Instead, they churn everyone through a “one-size-fits-all” system with zero regard for how any specific approach works for any particular person.
By contrast, it is universally accepted that different approaches work better for different people. Going to AA 3 nights a week for 2 years may be the best thing for talkative Chuck, but it may be the worst idea for shy Lauren. Quiet Mark may like individual counseling best, but chatty Samantha may be more comfortable in a private group setting.
The thing is, on the conveyor belt of the court system, no one is going to worry about this for you (except me), and no one is going to explain this to the Judge except me.
Circling back to the sentencing proceeding itself, the way it works is that the Judge asks for me to say my thing, then you to say your thing, and finally, and most important of all, the Judge says his or her thing. What the Judge says is, of course, what matters, because his or her pronouncement becomes a court order, and there you have your sentence.
If the Judge says you’re going to be on probation for only 1 year and you have to do a short alcohol education class, then you caught a break. If, however, the Judge says that you’re going to be on probation for 2 years, with alcohol and drug testing 3 times per week and that you have to complete an IOP (Intensive Outpatient Program) along with 80 hours of community service, then that’s what you’re going to have to do.
If you’re a habitual offender and your Judge doesn’t lock you up, then count yourself lucky. If not, and you get thrown in jail, then you weren’t so lucky. No matter how you look at it, it is absolutely true that success in a DUI case is best determined by what does NOT happen to you.
Ultimately, it’s my job to minimize every last thing possible.
After the Judge issues his or her sentence, the court process ends, and you have to carry on and complete the terms of the Judge’s order. You’ll have to do whatever the Judge has ordered, and that always includes NOT drinking or using drugs (and some kind of testing to make sure you’re complying), not getting arrested again, and usually at least some kind of alcohol education class.
When that’s all done and over, it is everyone’s hope that the experience sucked enough that you’ll never get another DUI again, although in the real world, plenty of people do. If that happens, we look for the markers of a pathological relationship to alcohol and all the considerations that go into that. That’s for another day.
Right here and now, at the end of this the final installment of this 4-part article, we can at least say that we’ve covered the various stages of the DUI process and close out our discussion.
If you’re facing a DUI in any court in either Oakland, Macomb or Wayne County and are looking for a lawyer, do your homework. Read articles. When you’re ready to take the next step, pick up the phone and ask questions. My team and I provide unsurpassed advice, guidance and get the very best possible results in every DUI case we handle. As you check around, make sure you give us a ring. All of our consultations are confidential and done over the phone, right when you call. You can reach our office Monday through Friday, from 8:30 a.m. until 5:00 p.m. at (586) 465-1980 or 586-465-1980. We’re here to help.