Articles Posted in Criminal Cases

One of the most significant real-world considerations for anyone facing a DUI or other misdemeanor criminal charge is whether the it will be prosecuted by the state or a local municipality (this can mean city, village or township). To keep this article simple and straightforward, we’ll skip the analysis of all the background legalities that ultimately have zero effect on your case, anyway. This is important stuff, however, and really should be examined by anyone facing either a drunk driving or criminal charge that is not a felony. If the reader has any paperwork (especially either a citation issued by the police, or a court notice) relative to his or her case, either get it out now, or save this article and refer back to it when you have your information at hand. If you were given a ticket, look up near the top left and you will see a section with the words “The People of” and then one or more check-boxes that say “the State of Michigan” and “the city of _____,” “the Township of _____,” and/or “the Village of _____.”

If the “State of Michigan” box is checked, then your charge is being brought pursuant to state law. If any of the other boxes are checked, then your charge has been or will be made under a municipal ordinance. If you have a court notice, you can usually tell by looking at the listing of the plaintiff (some notices, like those on a “postcard,” don’t have this) and seeing if it’s either the State of Michigan or, instead, a city, township or village name. Make no mistake, the prosecuting authority can directly and significantly impact what ultimately happens to you. When you’re facing something like a 1st offense DUI charge (usually written as OWI, or “Operating While Intoxicated”), none of this is obvious, and the reader might therefore wonder, “what the hell difference does it make, anyway?” The short answer is that it can make a huge difference that can affect things like your ability to drive and save you thousands of dollars.

I promised to keep this article simple, so beyond pointing out that felony charges can only be brought by the state, and not by a municipality, the reader will have to accept my representation that the details of how and why certain misdemeanor charges can be local or state can get very deep, and there is a lot to why something like a DUI fist offense, High BAC, Driving While License Suspended (DWLS) or Possession of Marijuana case may be brought under either state or municipal law. Most of this, fortunately, is only of academic interest to some (and not even all) lawyers, and none of it affects a case once a charge has been made. The upshot of all this, however, is that if you’ve been charged with something, your lawyer will eventually sit across the table from either a county prosecutor (who represents the state), or a municipal (city, township or village) prosecutor (often simply called the “city attorney” or “township attorney”) and try to work things out. That matters because, to be blunt about it, it’s often easier to negotiate a better deal with a municipal prosecutor than it is with one from the state. Indeed, even in the same situation and facing the same charge, there are certain plea bargains that simply cannot be obtained in a state case that usually can be worked out if the charge has been brought under a local ordinance. This, by the way, has nothing to do with any prosecutor or municipal attorney being a nice or decent person, but rather only reflects limits imposed by their particular employers.

Every DUI (and criminal) case formally begins with what is called an arraignment. This is the very first step in the legal proceedings, but in some courts, it can either be skipped, or take place without you being aware of it. Other courts require a person to actually show up and go before a Judge or Magistrate. As a Michigan DUI lawyer, I am always adapting to the ever-changing landscape of how arraignments are handled in the various, local Detroit-area courts. In this short article, I want to pass along a few things that anyone arrested for a OWI (Operating While Intoxicated) should know about this first step. In fact, the reader may not even know what an arraignment is, but be concerned about either the “Appearance Date” section of his or her citation, or some other instruction, typically given by the police, to call the court within so many days. As we’ll see, this is all kind of the same thing and relates directly to DUI arraignments. To make this article useful, we’ll skip all the technical, legal mumbo-jumbo, and focus instead on the things you need to know and do right away,

A 1st offense DUI charge is a misdemeanor, as is a 2nd offense charge. A 3rd offense DUI charge, by contrast, is a felony, and that distinction is useful here in our discussion of arraignments. By law, if a person is charged with any felony offense, he or she must be arraigned, in person (this can be done on video), by a Judge or Magistrate. This is not the case with all misdemeanor offenses. An arraignment does 3 main things: First, the person is told of the exact criminal charge or charges being made against him or her, and the maximum possible legal penalty that can be imposed for each. Second, the person is advised of his or her constitutional rights, including the right to remain silent and the right to have an attorney (and to have one appointed if he or she cannot afford one). Third, and most relevant to our discussion here, the Judge or Magistrate decides what kind of bond the person will get. This means both how much money must be posted to get and/or remain out of jail while the case is pending, and also the things the or she must do, and cannot do (like use any alcohol), while out. As part of all this, the person is usually asked how he or she pleads, although most courts (thankfully) will almost automatically enter a plea of “not guilty” at this stage.

The most important part of all this for a reader facing a DUI charge in any district court in Macomb, Oakland or Wayne County is that in many cases, this arraignment can be “waived,” meaning that not only can a person be released from jail without having to be formally appear before either a Judge or Magistrate, but even later, the lawyer can file papers with the court to skip this step entirely. When done this way, a “not guilty” plea is automatically entered, and whatever amount of money, if any, the person posted at the police station (often something like $100 to $500, but sometimes, a person is let go without having to put up any money) counts as his or her bond and no further money is needed to remain out of jail. And don’t worry about any specific date on your citation or bond receipt; as long as you hire a lawyer before then, it’s very likely that date won’t hold, and you either won’t have to go to court at all, or will go for your arraignment at a later time, with the lawyer. Whatever else, though, you or your lawyer must contact the court within the time frame or specific date you were given.

This short article, like many others on this blog, was inspired by a conversation I had with Ann, my senior assistant. She was giving me the details of a conversation she had with someone regarding his DUI and suspended license charges, and noted that the caller had pointed out how he watched in court as one woman went before the Judge for a drinking and driving offense and didn’t get any jail time, and then tried to use that as a basis to predict what would happen in his case. Ann asked, of course, it he knew anything about her charge, prior record, or case history, and he responded that he didn’t. Ann then explained to the caller that no two cases are alike, and that you can’t ever compare your situation to anyone else’s, especially if you don’t know all of the details. That’s when the idea hit me, because I realized that just about everyone one of us looks around for comparisons in just about every situation we find ourselves. That may work, or at least work better, when it comes to fixing a jammed garbage disposal or something like that, but not within the context of a criminal or DUI charge, where there are just way too many variables.

You most likely know this already, but that doesn’t stop you, or me, or really all of us from doing it anyway. That’s human nature. My hope is that this short article will help make clear how this not only doesn’t work in criminal and DUI cases, but can also be misleading. Let’s use an example: Imagine Drinking Dave picks up his 1st DUI in city “A.” On that same night, Tipsy Tina is also arrested for her 1st DUI in city “A,”, as well. Sounds kind of like they’re in the same boat, right? Well, there are about a million things (maybe even more) that could make their cases very different, and that, in turn, could make what happens to each of them very different, as well.

If Tina has had 2 prior MIP’s, even if they were quite a few years ago, her relationship to alcohol is going to be perceived by the court as risky, if not outright troublesome. This would be even more so if her BAC at the time of her arrest was high, like a .21. If Dave, by contrast, has never been in any kind of trouble before and his BAC was .12, he’s just automatically going to be seen as less risky than Tina. Generally speaking he’s likely to wind up with a less demanding term of probation, meaning he’s likely to have to test less frequently, and will probably not be found to need the level of rehabilitative or treatment services that seem almost certain for Tina.

The location of your criminal or DUI case is one of the most important factors in determining how it will turn out, and what will (and will not) happen to you. As a local, greater Detroit-area criminal and DUI lawyer, the very first question I ask when presented with any new case is “Where?” For example, a simple possession of marijuana case in one city can be potentially wrapped up in one court date, the whole thing kept off the person’s record, and result in nothing more than the assessment of reasonable fines and costs, while, across town, that same case could easily cost more than twice as much and land the person on probation with required drug testing, community service, and maybe even a “marijuana awareness” class (or classes), as well. There is really nothing you can do to change this, other than make sure your lawyer is familiar with how things are done in the court where your case is pending.

It is certainly better if your lawyer is familiar with both the local courts in the broader geographic area where your case is pending, as well as the specific court in which you’ll be appearing. For me, that means all the courts in Oakland, Macomb and Wayne Counties. Even within the Tri-County area, however, there are some lawyers who spend so much time in any one particular court that they kind of miss out on the big picture of how things are done elsewhere. While there may be some truth to the notion that a lawyer who is “always” in one specific court really knows how things work there, it is also true that he or she may be too entrenched in that system to be capable of really standing up for the client and push for a different outcome. Think of the stereotypical teacher’s pet; you don’t want that for your lawyer. On the other hand, you certainly don’t want to be stuck with an attorney who isn’t in your court often enough to know how things are done there and, therefore, doesn’t know how to properly guide you through it.

What I’m saying, on the one hand, is that where your case arises is so hugely important that location plays a primary role in the outcome, and the lawyer you hire should be familiar with that court. What good does it do to bring in some attorney who can’t tell you how things are done there? On the other hand, I’m also saying that while experience with the court where your case is pending is important, you don’t want your lawyer to seem like he or she is employed there, either. That only creates a kind of unhelpful tunnel vision. Instead, the right amount of familiarity should be part of a broader understanding of how things are done across the larger local area. I can’t count the number of times I’ve persuaded a Judge to do something different (as in better for my client) by explaining how it’s done in another court. If you’re sensing that there is a kind of balance here, then you’re getting the point.