Articles Posted in DUI

This article will be about the penalties for the various OWI (Operating While Intoxicated) offenses in Michigan. We’re first going to look at this from a “real world” perspective, because it’s CRITICALLY IMPORTANT to understand that there is a huge difference between the potential penalties for a DUI on paper and how they’re actually handed down in court. This may help the reader understand what I mean: only a few years ago, before fireworks became legal in Michigan, the law provided a potential penalty of 90 days in jail for blowing off a single firecracker, roman candle, or bottle rocket. Despite that having been the actual written law, nobody EVER went to jail for fireworks. At worst, a person would be given a ticket and required to pay a fine. The point is that there is a difference – often huge – between how things read (in theory) and how they work (in practice).

howI point this out because it’s typical for someone charged with a drunk driving to hop on the computer, do a little research (remember, “a little knowledge is a dangerous thing”), see the potential legal penalties for their charge, and then start freaking out. My goal here is to explain away those completely misinformed fears. We will, of course, post the potential penalties provided by law, but I urge the reader to take them with the proverbial grain of salt and remember the difference between how they read on paper versus how they are imposed in court.

Let’s start with jail, because that’s everyone’s biggest fear. I concentrate my DUI practice specifically in Oakland, Macomb and Wayne Counties, so what we’ll examine here applies to the Metro-Detroit, Tri-County area. No one goes to jail in a 1st offense DUI case, with the only possible exception being one Judge in Oakland County who often enough gives first-timers a few days in the cooler to think about things. In other words, although a 1st offense OWI is, technically speaking, punishable by up to 93 days in jail, there’s no point getting worked about something that’s NOT going to happen. I’m not going to go off on a tangent about “fear-based marketing,” but you should absolutely run away from lawyer or organization selling the idea that they’ll keep you out of jail in a 1st offense DUI. You’re not going, period.

Everyone knows that a 3rd offense DUI is a big deal. In this short article, I want to go beyond most of the legal and technical stuff and examine one simple, but important aspect of these cases: the where factor. Here, in the Tri-County area of Oakland, Macomb and Wayne Counties, where you get a DUI has a huge impact on how your case will play out, especially if it’s a 3rd offense, felony charge. I have examined many other facets of 3rd offense cases in my other DUI articles on this blog, so our focus here will be on the importance of location of a 3rd offense case really is, especially when we’re comparing Oakland, Macomb and Wayne Counties, where I practice. To be sure, this is a deep subject, and it would be easy to do a many page, multi-part summary, but that’s exactly what we’re NOT going to do.

map-small-300x245In order to really appreciate the influence of geography on 3rd offense drunk driving charges, we first need to sort out a few things. There is a general notion that of the 3 local counties, Oakland County is the “toughest,” Wayne the most lenient, and Macomb, somewhere in-between. There is some truth to this, but it’s not entirely accurate, particularly as it applies to 3rd offense drunk driving cases. As a DUI lawyer who specifically concentrates his representation in Oakland, Macomb and Wayne Counties, these differences are important to me every single workday. Any notion of which place is tougher versus more lenient must really account for 2 key factors that underlie every DUI case (and every criminal charge, for that matter): the prosecutor and the Judge.

If you’re familiar with the greater Detroit area, then you know there is a kind of unique “vibe” to each of the 3 counties. This “vibe” is reflected in the bench of each county, meaning the aggregate of its sitting Judges. This can become something of a chicken or the egg debate, but what really matters is that, as a group, the Judges in any particular county are largely a reflection of that county. The county prosecutor, however, is also a key player in all this. Whereas each of the local counties is made up of numerous district and circuit Judges, every county has only 1 elected prosecutor, and that person determines all the policies for how things are done and what kind of breaks (or not) can be given in all criminal cases. The interplay of these 2 factors – the Judge and the prosecutor – has everything to do with what ultimately happens to anyone facing a state-charged DUI. All 2nd and 3rd offense DUI’s are brought by the state, and, depending on the arresting agency (like the Michigan State Police), some 1st offense charges are state cases, as well. Thus, it will ALWAYS be the county prosecutor behind 3rd offense, felony charges.

In part 1 of this article, we began to examine 2nd offense DUI cases in Oakland, Macomb and Wayne Counties. I made clear that the law presumes a 2nd offender has a drinking problem, and that the court system, based upon its daily experience, begins each case having already reached the same conclusion, as well. Michigan law also requires that any person convicted of a 2nd DUI within 7 years must be ordered to undergo counseling. The law doesn’t further specify that it should or must be counseling that’s a good fit, or that’s “right for you,” or anything like that. Many courts, in assembly-line fashion, simply jam everyone through the nearest local counseling operation that is only too happy to take on all the business it can get. This kind of “one-size-fits-all” approach may work for a few people, but it’s far from a recipe for success in any larger sense. Moreover, when you force somebody into any kind of counseling or treatment that isn’t right for them, it only makes them become defensive and resistant to any examination of their relationship to alcohol. In other words, it doesn’t just “not help,” it’s counter-productive. An important part of my job is to help my clients avoid being treated this way and insure that they find the kind of counseling that works for them, even if they’re not happy about having to go in the first place.

stressed-man-282x300The whole counseling thing is a deep subject in its own right, but rather than go off on a multi page examination of matching a person with the right kind of counseling or treatment method, suffice it to say here that my clinical training and my practical experience as a DUI lawyer combines so that I know how to explore this subject with my client in the office, while helping and protecting him or her in the courtroom. Someone can have all the clinical education in the world, but not know how to explain and say things in a way that will persuade a Judge (that, by the way, is why I limit my practice to the courts of Oakland, Macomb and Wayne Counties – so that I get in front of the same Judges day after day and know what will work, and what won’t, in front of each). By contrast, as well-spoken as any lawyer can be, to change a Judge’s mind, you have to provide both facts and viable alternative solutions. A lawyer may be right, but you can’t merely tell a Judge something like, “that won’t work,” or “that’s not the right solution” without explaining why and offering a better idea.

Let’s back up a step here. We’ve made clear that there is a legal presumption that all second offenders have some kind of drinking problem, but that’s kind of like saying that they all own dogs, too; both dogs and drinking problems come in all shapes and sizes. One of my goals is to help both the client and the Judge understand that the larger notion of “drinking problem” includes everyone from hardcore, everyday-drinking alcoholics, to people who don’t drink very often, but who sometimes don’t know when to stop at the appropriate time. In other words, someone who is just beginning to struggle with his or her relationship to alcohol is NOT in the same boat as someone who has been a heavy, daily drinker for decades. To be sure, they both present risks, although of very different magnitudes.

Although a second offense DUI charge is NOT the end of the world, it is a big enough deal. The key thing about a 2nd offense DUI is that it really “levels up” from a first offense, which is often seen (or at least to the extent possible, should have been made out) as an out-of-character mistake that won’t happen again. The harsh reality here is that in a 2nd DUI offense case, jail become a much more realistic possibility. Sure, it can be avoided in many, if not most, cases, and can be strategically minimized in every other case, but you certainly don’t need a lawyer to tell you what you already know in your gut; this is a serious situation. In this 2-part article, I want to examine some of the more important aspects of 2nd offense OWI charges, because there is much more to them beyond the mere threat of jail. Even in those cases where someone is going to have to do a little time, they’re also looking at following that up with a much longer and far more demanding term of probation. The goal, therefore, in a 2nd offense DUI case is minimize all of that and do real damage control.

222-300x262Let’s get the jail stuff out of the way first, because that’s everyone’s biggest concern. There are many courts here, in the local, Detroit area where jail can be completely avoided in a 2nd offense case, and some where it may be on the table as a possibility, rather than a probability. In addition, there are also a few Judges here who will almost always hand out at least a few days to any and every second offender. With every last drop of integrity I have a human being, let me be perfectly clear about this: anyone who says anything different is either lying or not experienced enough to properly handle a 2nd offense drunk driving charge anywhere in Oakland, Macomb or Wayne Counties. In either case, you should run like hell. Here’s where a reader looking to hire a DUI lawyer needs to exercise some good consumer skills and pay attention to how things are said, because it’s easy for lawyers to dance around this question and not answer it directly, or to address it deceptively by saying something like “jail is never a certainty in a 2nd offense case.” Nothing in life is really a “certainty,” but in the immediate context of your DUI case, we’re far more interested in specifics like “yes,” “no,” “always,” “never,” “likely” and “usually.“

My job, in every case, is to avoid jail completely when that can be done, and to absolutely minimize it when that’s not possible, and I’m exceptionally good at that. However, in my own life, I’m not the kind of person who simply wants to be told what I want to hear rather than the straight up truth, and I cannot imagine doing that to anyone else. Not to brag (okay, maybe to brag a little), but when it comes to writing articles like this, I have no match. I have written more good, informational articles (over 860, as of this writing) about DUI and driver’s license restoration cases than just about everyone else combined, and in the course of doing so, have really honed my communication skills. If I simply wanted to hook people in by making things sound all rosy and telling them what they want to hear, I could easily do so. There’s a lot of money to be made by doing that, because no matter what, people are drawn to what they want to hear, but that’s not who I am. My integrity is not for sale, but my skills are: if anyone can keep you out of jail in a local 2nd offense case, it’s me. Even in those cases that wind up in front of a Judge (like the one that puts most 1st offenders in jail) who is determined to give a little “reflection time,” no one is better than me at keeping that to the absolute minimum. That’s easy enough to say, but let me explain the how and why of it…

Most of the DUI cases I handle are in Oakland County. Because I am a local, Detroit area DUI lawyer, that’s not surprising. In this article, I want to examine OWI charges in the district courts of Oakland County, and some of the things that are different here when compared to Macomb and Wayne Counties. This is the kind of subject that could be examined to death, so I’ll focus on the major points to keep this installment short. The courts of Oakland County have a reputation for being “tougher,” and in general, that’s a fair assessment. I point this out first, not because I want to bash Oakland County (it’s where I live), but rather because it is the most significant and talked about facet of cases here. In fact, because my practice takes me in and out of all the local courts, I am in a great position to compare and contrast how things are done within the different sectors of the larger, Tri-County area.

192_670-300x241It’s probably fair to define a DUI lawyer by virtue of where most of his or her cases are handled. On average, I handle about 5 or 6 local DUI cases each week, along with another 6 or 7 driver’s license restoration appeals (the result of multiple DUI convictions). Most weeks, I spend more time in the district courts of Oakland County than I do in the courts of both Macomb and Wayne Counties combined. Although I would prefer to be identified by a more inclusive term like “Detroit-area DUI lawyer,” if I had to pick a description with just one locale, it would be Oakland County DUI lawyer. What’s important about that is that it means, as it should, that I know how things are done here. I know how the Judges operate, the things that will and won’t fly with each, and what kind of ideas will cause some of them to lose patience.

In many of my DUI articles, I write about the importance of hiring a “local” lawyer. That doesn’t necessarily mean some lawyer whose office is down the block from the courthouse, but it does mean, at least here, one from the Tri-County, greater-Detroit area. I have no idea, for example, how things are done in Lansing or Grand Rapids. Even if I did take DUI cases from that far away, how many times do you think I’d be called on to go there? How much experience would I have in those courts that I could use to actually help someone make things better? It is always important that a lawyer be in a position to sell experience to his or her clients, rather than the client wind up paying what amounts to tuition for the lawyer to learn how things are done in some distant court. Because I confine my criminal and DUI practice to the courts of Oakland, Wayne and Macomb Counties, giving me extensive experience in these same courts day-in and day-out, week after week, I actually do sell experience rather than collect tuition.

At its simplest, a DUI charge means that you’re in trouble, and are facing a number of legal consequences. Some lawyers rely on fear-based marketing strategies that warn everyone of all the scary things that could happen (especially jail), and then follow it up with some kind of pitch about hiring them. I hate that kind of BS, primarily because it is BS. For the most part (even if you’ve been down this road before), jail isn’t on the menu in a 1st offense DUI case, can often be avoided in 2nd offense cases, and is even possible to get out of in many 3rd offense cases as well. In fact, with one local Judge as the only realistic possible exception, jail is virtually never imposed in a 1st offense case here in the district courts of Oakland, Wayne and Macomb Counties. This means that once you understand jail wasn’t coming anyway, not having been sentenced to it is really a false measurement for evaluating success in your DUI case.

original_less-is-more-typography-quote-218x300In a very real sense, success in a DUI case is always best judged by what does NOT happen to you. In other words, the less “stuff” you have to go through, the better. This applies to every potential legal consequence you that could be imposed for an OWI conviction. Sure, staying out of jail is great, but once you realize you weren’t going anyway, how do you know if your lawyer has procured any real benefit for you? Assume, for example, that Dan the driver is charged with a DUI in City X, and the Judge there (like almost everywhere else) never puts 1st offenders in jail. Dan isn’t a lawyer, so the only thing he knows is that the law says you can go to jail for 93 days. Dan is so worried about getting locked up that he’ll do anything to avoid it. He winds up hiring Lazy Larry, the lawyer. Larry, of course, knows Dan isn’t going to jail, but still makes a big deal out of how he’ll keep him out of it. Lazy Larry takes the first deal offered by the prosecutor, knowing that how relieved Dan will be to find out he’s not going to jail. Dan has his license suspended for 6 months, winds up being placed on 18 months of reporting probation while having to breath and urine test 3 times per week, and also being required to complete substance abuse counseling along with 60 hours of community service. At first, Dan thinks Lazy Larry is the greatest thing since sliced bread, simply because he is under the (mistaken) impression that Larry actually did something to keep him out of jail.

Until Dan finds out that his Judge has never sent anyone to jail for a 1st offense OWI charge. Curious, Dan hops on the internet and starts reading some of my blog articles and learns that the real focus in a DUI case is to make sure the client doesn’t get hit with all kinds of counseling, or treatment, and certainly avoids long and difficult probation with burdensome testing. Dan figures out that when a lawyer has the jail issue squared away (usually because it wasn’t an issue in the first place), he or she should be focusing on sparing the client from all the other stuff that really IS possible in a DUI case. In other words, in Dan’s case, Lazy Larry really didn’t do anything beneficial, especially because it’s not like he actually prevented Dan from serving any jail time that he wasn’t going to be ordered to jail time anyway. Instead, Larry’s efforts should have been directed to saving Dan’s license, and keeping him off of such a long probation with all that counseling, along with breath and/or urine testing and community service. As an honest lawyer who knows that Dan was never at risk to do any jail time, I’d rate the outcome of his case an absolute failure. If success is best evaluated by what doesn’t happen, then Dan got screwed, pure and simple. How could any other conclusion be reached?

In part 1 of this article, we began examining the fundamental importance of your BAC result in a DUI case. Given that this article should be read as a whole, I simply divided it at about the halfway point, so we’ll resume right where we left off, and skip summarizing what we’ve already covered. Common sense dictates that those people arrested for a DUI with a higher BAC are probably more frequent, or “bigger” drinkers than those with lower results. Common sense also dictates that people who drink more are more likely to develop a drinking problem. Duh. It is much less likely that someone who rarely drinks, and then only has 1 or 2 drinks when they do, will morph into a problem drinker than someone who drinks all the time. The more you drink, the greater the risk to have or to be at risk to develop a drinking problem. Again, this is common sense, but, as a DUI lawyer, I always have to remember that these are general observations, and that there are plenty of exceptions. Therefore, it is an important part of my job to protect my client from getting swept away by the system’s built-in alcohol bias. I’ve had plenty of clients with high BAC results who really weren’t big drinkers. We can say that all day long, but the burden is on me to come to court with something to back that up.

Im-big-drinker-300x249Almost without exception, everyone arrested for a DUI (especially a 1st offense), will proclaim that he or she isn’t a big drinker. People charged with the High BAC offense do this all the time, as well, although they often try to explain it in a way that at least acknowledges that their situation looks bad. By contrast, no one ever tells a Judge that he or she IS a big drinker and can handle their booze. Can you imagine someone saying to the court that even though they had an elevated BAC number, they weren’t really that drunk? The reader has no idea how many times I’ve sat in court and heard a Judge tell someone (not my clients, because I won’t let them make that mistake) that despite their protestations to the contrary, their BAC indicates that they drink more than they’re letting on. When a person’s alcohol level belies the fact that he or she does not have an alcohol problem, we need to prove that, not just say it.

This is not an impossible task. Clinically speaking, there are some outliers who have a higher tolerance to alcohol than others and do defy the “general rule.” This applies to everything, and not just alcohol. My wife, for example can tolerate hot food temperatures much more than me. If we go out to eat and the server brings a bowl of steaming hot soup, she’ll dig in right away, while I have to wait a long time before I find it anything less than scalding. By contrast, I love spicy stuff (and, nerd that I am, belong to a “hot sauce club” that ships 3 new bottles to my door every month), so what I find more like “medium” spice will leave most people screaming in pain. I use the hot sauce example for 2 reasons relevant to our discussion here. In the first place, I have, of course, developed a tolerance because I do eat hot stuff all the time. However, I have always had a greater, native tolerance to spices than the average person to begin with, and I suspect that few people without a little increased tolerance to spice heat would be the kind to join a hot sauce club, and would probably never go beyond anything hotter than Tabasco sauce.

There is no way to overstate how much your BAC (Bodily Alcohol Content) result will affect your DUI case. To get a head start on our examination, let’s cut right to the chase: the higher your BAC, the drunker you were, and the more it looks like you are a big (as in experienced) drinker. This is a critically important issue, so this article will examine how to best deal with it. This is rather obvious in a “High BAC” cases, where a person is actually charged with OWI (Operating While Intoxicated) and having an alcohol level of .17 or more. The point I want to make in this article, however, is not about that charge, or any particular DUI charge, for that matter, but rather how a your BAC, whatever it may have been, plays a key role in your case. For example, you could test out with a BAC of .24, and in some jurisdictions, still not be charged with the enhanced “High BAC” offense, while just up the road, you could test out at exactly .17 and wind up facing that more serious crime. Our discussion here is really independent of the precise offense charged, and focuses, instead, squarely on the BAC number from your arrest, whether you took a breath or blood test.

hello-my-name-is-condom-foil-300x298No matter how you cut it, the lower your BAC, the better. Unfortunately, if you’re reading this, there’s nothing you can do about that now, so we’ll just have to deal with it as it is. If there’s one consistent factor in all of this, it’s perception, and by that, I mean  how you are perceived. You don’t need to be an experienced DUI lawyer to understand that, given the legal limit of .08, you look worse walking into court with a BAC of .19 (almost 2 and 1/2 times that legal limit) than you do if you only blew a .09. The problem, of course, is that perception can be skewed, and a situation may “look” to be worse than it is. This circles us back to the idea that the higher your BAC, the drunker you look to have been AND the more it looks like you’re a “big” drinker.” While not always true, a person who only drinks occasionally and would otherwise be considered a “lightweight” usually can’t handle a lot of drinks, and typically won’t show up with sky-high BAC. Regular consumption of alcohol builds a tolerance to its effects, especially for the first few drinks. A non-drinker may feel pretty buzzed and somewhat clumsy after 2 screwdrivers at a wedding, while a more regular social drinker will not.

This begins to matter a lot more as your BAC climbs, and especially as approaches being double the legal limit. A person who rarely drinks (like our 2-drink wedding guest) would have a very hard time not puking before getting to a .15 BAC. There are always exceptions, but the prevailing belief is that the higher your BAC, the more you look like an experienced drinker and the drunker you probably were at the time you were arrested. This is kind of an ugly reality that is not discussed enough by lawyers because it’s a subject that doesn’t make for good marketing. A DUI lawyer can always get more “bites” by telling people all the things that could be wrong with the case against them (and therefore, in theory, could cause the case to be thrown out of court) than by telling them how the case against them is complicated by the factors that do exist. In other words, and in almost every setting, people are always more willing to pay for what they want to hear rather than what they need to hear. That, however, is not right, either factually, morally, or practically. Most DUI cases – as in the vast and overwhelming majority – do not get tossed out of court. Period.

The previous article focused on positive alcohol test results, particularly within the context of bond and probation violations. The focus there was more on the results (and drinking) rather than the violation. In this installment, I want to focus more specifically on handling bond and probation violation cases. While most bond violations occur because a person tests positive after drinking, our examination here will be broader, and applies to anything that is a violation, rather than just positive alcohol (and even drug) tests. If you’re facing a violation, the only person who can really help you is a lawyer, but most of the time, legal acumen, by itself, is far from enough, and the best way to resolve these matters requires a skillful blending of charisma, experience and speaking ability. In other words, you need a lawyer who can charm the snake right back into the basket.

Second_Chance-300x281We could get detoured forever just trying to list the many reasons someone is called in for a violation. Of course, it’s mostly for either missing a test or testing positive for alcohol and/or drugs, but the larger point is that whatever the reason, it’s a violation for either doing something you shouldn’t have, or not doing something you were supposed to do. We begin with the certain knowledge that your Judge, whoever he or she may be, is not pleased with you. You’re in trouble – again – and you have pretty much forfeit most, if not all, of the Judge’s patience and understanding. I don’t say this to scare the reader (I hate any kind of fear-based marketing), but rather because you almost certainly already know this; you feel it, and for all the good that can be done, it’s bone-headed to not at least recognize the position from where you start.

Another detour I want to avoid in this article is a potentially endless examination of all the reasons why a person may be innocent of a violation. For the most part, except for things like a dilute urine sample or a false-positive result, the overwhelming majority of people look for a lawyer in this situation because they did, in fact, violate some term of their bond or probation. Even missing a test for a good reason is still a violation. Thus, we’ll mostly be examining those situations where you have to go back in front of the Judge, to put it bluntly, because you screwed up. This is why I hinted, in the first paragraph, that all the legal skill in the world isn’t much help when you’re back before the Judge for either doing something you were ordered not to do, or for not having done what was required of you.

In my capacity as a DUI and driver’s license restoration lawyer, I deal with positive alcohol tests and the problems they cause just about every single day. This article will focus on failing a PBT and/or an ETG test in a DUI case. This happens either when a person is required to test while on bond, or while he or she is on probation. We’re going to be blunt and honest in our discussion here. In that context, it’s almost a given that you’re not here reading this because you want to know how to avoid failing an alcohol test in the first place, but rather because you have already failed one. Sure, there are cases where a person is the victim of a false positive result, but we won’t waste much time on that because the vast majority of positive results do, in fact, accurately reflect that a person had been drinking. For the most part, this article will focus on those real life situations where a person has been caught, despite being ordered to refrain from consuming alcohol, and now faces going back to court for a bond or probation violation.

ScrewedUpMyStory-300x300The reader may be surprised to learn how often this happens. Because I am a DUI lawyer, and not some guy who takes on every kind of case under the sun, almost every client in my busy office comes in for something related to either current or past OWI case, or at least something similar. I begin almost every workday in some court or other for a DUI or DUI-related case. Over the course of my years, I have been involved with, quite literally, more failed alcohol and drug test violations than I could ever count. I’ve handled violation cases for people in every kind of occupation, from doctorate-level professionals, successful business types, to folks who are changing careers. The point I’m making is that getting caught happens to people of every stripe. What I want the reader to understand is that this has less to do with my practice than the experience of the court system and the people that go through it. It’s no more surprising for a surgeon, nurse, accountant or lawyer to wind up violating a “no drinking” condition of bond or probation than it is for Snake the Biker to do so. Accordingly, alcohol and drug testing is the great equalizer, and here, one’s social capital doesn’t count for very much, because positive is positive, whether you are the Executive Vice President of a Fortune 500 company or you empty trash cans at the mall.

This, of course, explains why probation officers and Judges are skeptical, and can seem almost outright cynical. They become that way over time. This will happen to anyone who plays some part in this system (including me, except I get paid to work past it). With time and experience, you hear and see it all, from the occasional false-positive test to all kinds of bizarre circumstances, with offers of just about every excuse you could ever imagine. In fact, one of my all-time favorite explanations that people give for testing positive for alcohol actually has a name – the “NyQuil defense.” You can probably guess the rest. I know better than to try using it, but it wasn’t long ago that I saw a lawyer standing next to a client in a local court and as soon as cold medicine was brought up, the Judge, quite literally, waved it off with her hand and said something like, “Oh no, we’re not even gonna try the NyQuil defense.” I was on my way out of the courtroom, but I sure hope that lawyer had a better “plan B” than his “plan A.”