Articles Posted in Criminal Cases

One of the most common driving offenses we handle is “Leaving the Scene of a Property Damage Accident,” or, as it’s sometimes written, “Leaving the Scene of a PDA.” This is a natural component of our practice, focusing, as it does, on cases and charges connected to the operation of motor vehicles. Although I have written about “leaving the scene” charges in the past, the makeup of these cases has changed somewhat in recent years, and our typical clients today are a bit different from those a few years ago.

jessedavidabarthnew-for-facebook-with-logo-300x231This is because, in the past, the usual person facing “leaving the scene” charge had taken off because they had been drinking, and didn’t want to get popped for a DUI. While there are still plenty of those cases, we see more people now than ever before who leave the scene, not because they had been drinking, or to avoid a DUI, but for other reasons, like being genuinely freaked out, not having a valid driver’s license, or not even being aware their vehicle made contact with anything. In fact, most of the leaving the scene cases we’ve handled in the recent past have NOT involved any drinking whatsoever.

While this is important, the problem is that everyone’s first suspicion is that the person left the scene to avoid a DUI. In practice, everyone charged with leaving the scene of a PDA will say that he or she wan’t drinking. Nobody ever steps up (at least to the police or anyone else in the criminal justice system) and admits to having had anything to drink before driving. In other words, a denial is expected in EVERY case, whether or not it’s true. When someone was genuinely not drinking, part of our jobs, as the lawyers, is to make the prosecutor and the court really believe that.

It’s a good thing to be a novice when it comes to facing criminal charges. As very experienced criminal lawyers, my team and I are lucky to spend most of our time with clients who are relatively inexperienced with the criminal justice system. A good person who finds themselves in a bad situation will do well with a lawyer who understands that all of this is new to him or her, and who can make things understandable for what is hoped will be a one-time (or last) trip through the criminal court process.

1_3TBatnV_zBfnXh5MzlcN4g-300x210Although we do handle a lot of 2nd and 3rd offense DUI cases, and even though they’ve been through the system before, those clients aren’t any kind of “criminals” in any real sense of the word. My team and I specifically concentrate our practice on the kinds of charges that don’t attract career criminals. DUI drivers may be facing a criminal charge, but repeat offenses in this field are much more about a troubled relationship to alcohol than anything else. Thus, even for people who have prior DUI convictions, the whole experience of getting arrested again for a subsequent DUI is unnerving, and still seems like a whole “new” experience.

It is, of course, normal for someone who suddenly finds him or herself having to hire a defense lawyer to have every intention to make the whole thing a one-shot deal. This is similar to needing a root canal, where a person is glad to find professional help, but hopes to never need the person’s services again. We get that a lot, and that’s a good thing. People with no, or relatively minor prior criminal records will usually fare better. Who you are (and who you are not) as a person matters in criminal and DUI cases, and the lawyer’s job is to use that to your fullest advantage

Once a person’s drinking has gotten to the point of being a problem, he or she faces a simple choice; either quit, or keep going and run into even more problems. Unfortunately, many people who do stop, at least for a while, struggle with the misapprehension that they can somehow, someday, manage to drink again. This misplaced belief is a defining point of addiction, and it stands in direct contradiction to the reality that once you have a problem, you can simply never pick up again. This article will focus on that conundrum, and is really relevant to anyone looking for information about driver’s license restoration, DUI, or other kinds of criminal charges.

AAA-277x300The inspiration for this article came from a client of mine for whom I won a driver’s license restoration case, and who just hired me for a new, 3rd offense DUI charge. Although I won’t use his name, I’m quite sure he is the kind of person who would want me to use the details of his story as a warning  to help anyone who has supposedly quit drinking to NOT pick up again. My client had been alcohol-free for 10 years after his last DUI, had won back his restricted, and then full driver’s license, and, in the blink of an eye, picked up a single drink that quickly led him down the slippery slope until he got arrested for driving drunk – again.

As DUI and driver’s license restoration lawyers, my team and I spend almost every minute of every workday dealing with the fallout from people drinking. Nobody comes to our office looking to patent some multi-million dollar invention because they got drunk one night and then came up with some great idea. Instead, people contact us because they’ve gotten into trouble, and are facing something like an OWI charge or, having lost their driver’s license as the result of multiple DUI’s, now want to get it back.

My office does consultations differently than just about every other lawyer and law firm. In this article, I want to explain how we do them, and why that’s important. My consultations are specifically intended for those who are looking to hire a lawyer in one of my practice areas and maybe doing some comparison shopping and want to get a little information or see if my office is a good fit for their needs. All of my consultations are done over the phone, right when a person calls into the office.

CULTURETWO_3739_1-300x300That convenience factor of doing it this way is also a benefit for me, also, because as much as a consultation is an opportunity for a potential client to size up a lawyer or law firm, it also provides an opportunity for us to evaluate a person and determine if he or she will be a good fit for the way we do things. I am fortunate enough to have a busy practice, and therefore don’t have to take every case that comes my way, nor do I have to compete on price. In fact, I publish my fees, not only in the interests of transparency, but also, because we offer higher-end services, to weed out bargain hunters or anyone else who is price-shopping.

Beyond all of that, I have no interest in taking on any sort of “difficult” client. Younger lawyers and those who are starving for work have little choice but to sit silently as some angry person goes on about how everyone else is at fault, how the police got it all wrong, or how the court system is unfair, but I don’t. If you’ve dealt with the public, then you know some people seem to always have a chip on their shoulders, or are otherwise just always a pain the a$$. I can afford to pass on them, and I do.

In part 1 of this article, we began looking at the sentencing phase of a criminal or DUI case. I pointed out that this is by far the most important part of any case, because it’s where you learn what will (and will not) happen to you. We also saw that in most cases, the Judge is supplied with a PSI, or “pre-sentence investigation” report (often called a “screening” in DUI cases), prepared by the court’s probation department, that includes a sentencing recommendation. Because this recommendation is closely followed by every Judge in every court, the key to getting a better sentence is getting a better recommendation in the first place.

download-53Here, in part 2, I want to examine how a sentencing actually plays out in court, and then the idea of getting a better recommendation up front will make more sense. Before I do that, however, I have to make clear that, in some cases, there is no PSI required. For example, in DWLS/DWLR (Driving While License Suspended or Driving While License Revoked) cases, many (but not all) Judges will do immediate sentencing, right after a plea, without sending a person for a PSI or any kind of screening.

For what it’s worth, if and when a Judge does go to immediate sentencing, a lawyer’s extemporaneous speaking ability can make all the difference in the world. This reinforces the importance of having hired a lawyer who is charismatic and persuasive. Whatever else, I want the reader to understand that the whole interview with a probation officer, PSI-thing doesn’t take place in every misdemeanor case. With that out of the way, let’s return to how we can get a better recommendation from the PSI.

In the final analysis, the most important part of every criminal and DUI case is the sentencing. This is when you stand before the Judge and learn your fate. In the previous article, we briefly examined the pretrial stage in criminal and DUI cases, noting that the vast majority are worked out through plea bargains, plea deals and even sentence deals negotiated at the pretrial stage. In this article, we’ll move on to the sentencing phase and examine what happens here. No matter how you cut it, success in a criminal or DUI case is always best measured by what does NOT happen to you.

maxresdefault-300x186If the parties can’t work things out through some kind of plea or sentence arrangement, a trial will be held and a person will either be found guilty, or not guilty of whatever charge(s) he or she is facing. Except for the lucky few whose cases are either thrown out of court before trial, or who are acquitted of all charges after a trial, everyone else (meaning those who plead to or are found guilty of some offense) will go through a sentencing. This is where the rubber meets the road in criminal and DUI cases, and where you learn if you’re getting locked up or not, along with what else will and won’t happen to you. In short, this is everything.

Because jail isn’t really on the menu for most of my clients, the sentencing is where we’ll find out what kind of probation they’ll get, and how long they’ll be on it. Probation is an order of the court requiring a person to do some things, and forbidding him or her from doing others, like drinking alcohol, using drugs, and getting into any more legal trouble. Of course, it’s always better to walk out the front door of court after a sentencing, rather than be taken out the back door, but, as I noted above, the real gauge of success in any criminal or DUI case is always a matter of less, meaning the less that happens to you, the better.

In the world of probation violations, people try to advance all kind of stupid defenses that don’t fly. Probably the most famous is what some Judges call the “NyQuil defense,” a tired and losing attempt to explain away a failed alcohol test of some sort. In this article, I want to explain how a stupid defense can make things worse, and how a lawyer who doesn’t have the experience and confidence to call BS when he or she sees it actually makes things worse for the client, and not better.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2019/04/1.2-300x171.pngLet’s start with the lawyers. There are too many of them so hungry for cases that they compete with each other by cutting prices down to the bone, and, for fear of losing a potential customer, will simply nod and agree with everything a potential client says. A good lawyer should be upfront and explain that a stupid idea won’t fly, not just take someone’s money and try it anyway. More than anything else, that’s the sign of a lawyer desperate for work. Remember, too, that every Judge out there has already heard every excuse in the book 10 times over, and won’t be easily fooled.

This is why the “NyQuil defense” is so famous; it would take a lot (as in multiple bottles) of that stuff to fail most breath or urine tests used by the courts. When used as directed, or even used in double-doses, a person taking cold medicine will NOT fail either a breath or EtG urine test, or will at least only produce a result that shows minimal ingestion. There is an obvious difference between test results produced by the beverage consumption of alcohol and that produced by using cold medicine, even if a person “swigs” it. Every Judge knows this, as does any good lawyer. Thus, as an excuse for a positive test result, it won’t work.

Among the questions anyone looking for a lawyer to help in a criminal case, handle a DUI charge, or win a driver’s license restoration or clearance appeal will have is “how much?” This goes well beyond just being able to afford a particular lawyer. In a recent video for my Youtube channel, I tried to explain why I list my prices on my website and this blog. In this article, I want to expand on that a bit and examine why I am the only lawyer I know of in my field to publish my fees.

2-290x300It may sound corny, but it begins with the simple proposition that, in my professional life I always try to treat others as I would wish to be treated if I was on the other side of the transaction. If there’s one thing I absolutely HATE when I’m the consumer, it’s any kind of BS or evasiveness surrounding cost. When I call a business, I expect to be able to get a price, unless it’s for something like a repair job, where a technician has to first diagnose the problem, but even then, there is no good reason to not be able to at least provide a “ballpark” figure. I won’t accept less.

Unfortunately, most of the lawyers who do list prices are in legal fields where the goal is to be the cheapest. That’s always a race to the bottom, but thankfully, I don’t work in any of those areas. Within my areas of practice, I am not in competition with anyone else based on price. I know full well that my fees are nowhere near the cheapest out there, and for certain things, they are higher than most.

Within all the articles on this blog, the “voice” of the lawyer is one topic that is inherent in all of them, but never really addressed directly in any one of them. In this article, I want to zero in on the idea that every lawyer has a certain voice – a particular way of presenting things – and examine how important that is within the context of something like a criminal, DUI or driver’s license restoration case.

Voicer-2-300x215For everything we’re going to discuss, the bottom line is that you either hire a lawyer who is charismatic, persuasive and inspires confidence – or not. And why would anyone choose “or not?” In my own life, I much prefer to deal with someone who is genuine and interesting, rather than endure boring, politically correct blandness. In the role of lawyer, it’s far better if a person presents him or herself clearly, and with real “feeling.”

Being represented by a lawyer who stammers, stutters, or otherwise doesn’t speak exceptionally well is like being operated upon by a surgeon with a bad case of Parkinson’s disease. In courtrooms and hearing rooms, EVERYTHING depends on how well or not a lawyer communicates. No matter how you cut it, an attorney either sells the client’s case or not. Remember, the prize for not winning is losing. There is no way to sugar-coat this simple reality.

In a number of previous articles on this blog, I have tried to explain the impact of location on how things play out in DUI cases. In this piece, I want to expand the scope of that a bit, and make clear that, beyond OWI matters, the location of the court has an effect on all the types of cases I handle, including DWLS and DWLR (suspended and revoked license), indecent exposure, drug possession and embezzlement charges. For purposes of the discussion that follows, “location” should be interpreted to mean the location of the court where the case will be handled, and not merely the specific city in which the charge arose, although that plays a role, as well.

download-6There really is no way to over-emphasize the importance of location. No matter what the charge, if one of my team, or anybody else, for that matter, starts talking to me about a criminal or DUI case, the very first thing I ask is “where?” I know, for example, that a suspended license charge pending in the 52-3 Rochester Hills District Court is going to play out much differently than if was brought in the 41-A Shelby District Court, and that a DUI in Woodhaven’s 33rd District Court won’t be much like one pending in the 44th District Court in Royal Oak.

A criminal or DUI case is, for the most part, an accident of geography, because no one really goes out intending to get arrested. It would be absurd (but probably helpful) for a lawyer like me to publish a list of the best places for certain charges. I can already imagine how I’d break down something like that: if you’re going to drive drunk, avoid these places; if you’re going to drive without a license, these are the best places to get caught, etc.