Articles Posted in DUI

In the previous article, I talked about getting through a DUI. In this installment, I want to focus more on just plain getting out of it. It goes without saying that everyone arrested for a OWI would love to have the whole thing to just go away. As a Michigan DUI lawyer, the primary thought in my mind, as I meet with a new DUI client and listen to what happened is, where do we find a way to get out of it? This isn’t just about wishful thinking, but rather assuming a mindset directed to winning. I often say that success in a DUI case is best judged by what does NOT happen to you, so if the entire case can be dismissed and nothing happens to you, what could be better? As great as that sounds, however, success is almost never an accident. Thus, a DUI lawyer has to set out with the determination to actually find a way to beat this thing, person-thinks-how-to-win-strategy-thought-cloud-words-speech-bubble-planning-winning-game-battle-31864780-286x300rather than merely hoping there is some way to do that.

For the most part, when DUI charges are dismissed, it’s because of problems with the evidence. There are specific protocols for how evidence must be obtained and tested in drinking and driving cases, and sometimes, if those protocols aren’t properly followed, that evidence can be kept out of court. Evidence needs to meet certain minimum standards in order to be considered reliable enough to use against a person. In the context of DUI charges, anytime a case can be dismissed because of problems with the evidence or questions about its reliability, that’s a win, and we’ll take it.

In the real world, there are 3 areas where we’re most likely to find problems with evidence significant enough to have it kept out of court: the traffic stop, the field sobriety tests, and the chemical evidence (meaning the breath or blood tests). While there can be problems with just about any part of a DUI case, these 3 stages present the most fertile ground for successful evidentiary challenges. Chances are, if there is a basis to challenge the evidence in a given case, it will have occurred during one of these 3 phases.

As a Michigan DUI lawyer, there are tons of factual and legal issues that I must consider when handling an OWI case. That’s my job. Most of what you’ll find written on the internet focuses on things like evidence, including field sobriety tests and BAC scores, along with how cases work out and how and why plea bargains matter. Those are all important things, but they fail to look at how things feel, and are perceived, from the client’s point of view. Seriously, once you’ve hired a DUI lawyer, you should feel some relief, and all that legal stuff should become his or her problem. In exchange for what you’ve paid, you should have the comfort and confidence of knowing that your case will be taken care of in the most beneficial way for you. As the person facing the charge, your stress level should go down because you genuinely understand that you’re going to get through this, and that everything will be okay.

large-227x300And it will. If it’s your first DUI, and even if you are charged with a high BAC offense, we can navigate around most, if not all of, the scary sounding penalties, including jail. Really, with only 1 possible exception in one Oakland County court, no one goes to jail in a 1st offense DUI case. While a 2nd offense DUI is pretty much a bucket of suck, it’s not the end of the world, either, and with any kind of good legal work, you can emerge unscathed, and often enough without any real chance of going to jail. In fact, unless you’ve racked up a bunch of prior OWI convictions, even if you’re looking at a 3rd offense DUI, you’re not going to go to prison (at least not here, in the Metro-Detroit, Tri-County area). In other words, no matter how bad things are or seem, you’ll get through this. Of course, the better your lawyer, the better things will be for you. After all, that’s exactly what you are (or at least should be) paying for. Whatever your situation, though, it always helps to realize that, down the road, in about a year or so, this whole mess will be behind you.

Ultimately, it’s not about whether you’ll survive a DUI – of course you will – it’s about getting through it with the least amount of consequences. I am a busy DUI lawyer, and my team and I handle a lot of cases. As far as experience goes, we are certainly in the “seen it all” category, and probably 10 times over, at that. Accordingly, I can honestly say that the worst punishment most people get in their DUI cases is self-imposed emotional stress, especially in 1st and 2nd offense cases. Some people just freak themselves out over a DUI way beyond what’s necessary. I hope the reader really takes the time to digest what I’m saying here, because the majority of DUI lawyers rely rather heavily on fear-based marketing tactics, even if they do so unintentionally.

The whole world of DUI cases can seem like an alphabet soup full of letters and abbreviations. As I pointed out in a recent article, Michigan doesn’t even have a “DUI” law; instead, we have OWI, which stands for “Operating While Intoxicated.” The OWI law came into effect in 2003, replacing the old law, which previously defined drunk driving as OUIL, or Operation Under the Influence of Liquor. In this article, I want to examine 4 different sets of 3 very important initials (FST, BAC, PSI and SOS) that affect every drinking and driving case that goes through the court system. Although the various drunk driving offenses are officially identified with some variation of the term “OWI,” I will mostly use the term DUI simply because that’s the way most people talk.

4-things-300x241The first 3-letter term a driver will encounter is FST, meaning field sobriety tests. These are the things you do at the side of the road, after being pulled over, and can include things like the heel-to-toe walk, standing leg raise, and the horizontal gaze nystagmus (HGN) test. Beyond these more “approved tests,” police officers also often ask people to count backwards from one specific number to another, recite the alphabet without singing, and/or tilt their head back and touch their nose. Field sobriety tests are named after the purpose they serve, allowing an officer in the field to determine if there is probable cause to believe a driver is intoxicated.

There is, of course, a large body of law and lots of science behind FST’s and that goes way beyond the scope of this article, but you can be sure that the police will almost always write in their report that the person failed one or more of them as justification for the decision to arrest him or her. Back in the day, before video, it was more or less the driver’s word versus the officer’s word when it came to how well or not a person did. Now, most police cars are equipped with dash-cam video recorders, so we can usually compare the officers account of how a person did on the FST’s with the video of how he or she actually performed. In my role as a Michigan DUI lawyer, I always look for, and do, in fact, find things on the video that help my client get out of his or her DUI charge. Even when the person didn’t do very well and video only serves to confirms the officer’s account that the person was intoxicated, having watched it gives both me and the client the piece of mind to know that we’re not missing anything we could successfully challenge to get the case thrown out.

In the previous article about examining the evidence in a Michigan DUI case, I noted that just about everyone knows that the police report is important. I even pointed out that, once in a while, a proactive DUI client will show up for his or her appointment having already obtained that report (I also explained that doing so is not necessary because that’s one of the very first things we’ll get). In this article, I want to look at both the significance of the police report and also examine its main shortcoming. At best, a police report is the honest recollection of the officer who wrote it, but those recollections are, by definition, subjective, and can only be from the officer’s perspective. At worst, a police report can be a lot of exaggeration and BS. Often enough, the truth lies somewhere in the middle.

police-report-template-police-report-template-1-226x300In the old days, the police report was the pretty much “it,” in terms of evidence leading up to a DUI arrest. Now, we live in the video age. Most police cars today are equipped with dash cams, and it is standard practice in my office to obtain those video recordings in DUI cases. It wasn’t that long ago when almost no police cars had them, and the only real “evidence” of what took place during a DUI traffic stop was, as I noted above, the police officer’s written account of it. With video available for comparison, an officer in a car equipped with a dash-cam must always be mindful of that. Even so, it is not rare, by any stretch, to to read something in the police report that plays out differently on the video, or to see something on the video (like the rough treatment of someone arrested) that was not mentioned in the report.

Thus, we must begin with a clear understanding that the police report is not, and can never be, a completely objective record of what really took place during a DUI stop. This is not anyone’s fault, it’s just an indisputable fact that someone involved in a situation has a fixed perspective and therefore a subjective take on what happened. We all have a built-in bias simply because we’re human. Also, the ability to essentially create the story has a lot of value, as well. After a DUI arrest, when an officer goes back to write his or her report, do you think he or she would ever write anything in there about messing up, forgetting something, or pulling someone over based on a “hunch” that didn’t have any objective basis?

In Michigan, the correct name for what we commonly call a DUI is actually OWI, meaning “Operating While Intoxicated.” At their core, DUI cases are based on evidence. Michigan does have robust OWI laws, and an ever-growing body of case law interpreting them as well as how evidence should be obtained and analyzed. It goes without saying that when hiring a lawyer for a DUI case, you expect that he or she will be up to date on all the relevant laws and cases. Handling drinking and driving cases is something of a specialized practiced area, and keeping current on all the law and case rulings actually does take more time than most lawyer have, expect for those, like me, who essentially concentrate in this field.

test-300x255Beyond staying on top of the law in books and cases, though, my job, as a Michigan DUI lawyer (and the job of every lawyer, really, who takes on an OWI case) is to gather and carefully examine all the evidence. Important here is that ALL of the evidence must be examined. This includes everything, including how much a person drank, where, and when, to how he or she got pulled over or had the first police contact, what happened then (including his or her performance on any field sobriety tests), how the arrest took place, when and how a breath or blood test was taken, how it was analyzed, and ultimately, how those test results were calculated. This must be done carefully, and it must be done critically, meaning the lawyer needs to look for any flaws or problems with the evidence. In this article, I want to focus on getting and examining the evidence in a DUI case.

Everyone in the world knows that the police report is important, but it is only 1 piece, of many pieces, of the evidence in an OWI case. Over the course of my 27-plus years as a lawyer, I’ve had plenty of clients who already obtained a copy of their police report before ever coming to my office. That’s actually not necessary, because we’ll get it ourselves, but the point I’m driving at is that absolutely everybody understands the foundational role of the police report. Every lawyer, in every case, should get the police report, but that’s such a basic first step, it’s kind of like pointing out that you have to start a car before you can drive it. In other words, it’s a given. The police report can be a goldmine of information – or not. However accurate it is or isn’t, the police report is nothing more than the police side of what happened, told from the perspective of the officer who wrote it.

One of the most common questions I get as a Michigan DUI lawyer and driver’s license restoration attorney is if there is anything a person can do to get a restricted license after it gets revoked for a 2nd or 3rd (or subsequent) drunk driving conviction. Under Michigan law, a person’s license is revoked for a minimum of 1 year for 2 DUI’s within 7 years, and a minimum of 5 years if they’ve racked up 3 drunk driving convictions within 10 years. Although I usually go to great lengths to explain this, often several times, people almost always still ask, “is there some way for me to get a restricted license at least to go to work.” The answer, of course, is no.

194783f26f311100588f134509457090-300x300Almost without fail, the next thing I get asked is something like, “how am I supposed to keep my job?”, or “how do they expect me to support my family?” In this article, what I want to make clear is that the law not only “doesn’t care,” but it actually intends for this to hurt. In the grand scheme of things, the law is fashioned so that the hardship of not having a license is something that should have been considered before a person gets another DUI. One of the Michigan Secretary of State’s Administrative Hearing Section (AHS) hearing officers (these are the people who decide driver’s license restoration appeals) explains it, when people characterize their DUI record as “a mistake,” like this: “A mistake is when you date something using the last year, right after New Year. When you drove drunk, you committed a crime, and when you did it again, you became a habitual criminal.”

I fully understand that people don’t go out and intend to drive drunk, nor do they intend to endanger anyone when they do drive after having had too much to drink. For most people, a DUI is a genuine mistake in judgment, but, as that hearing officer points out, that mistake is also a crime. When a person gets a 2nd DUI, much less a 3rd, he or she is legally categorized as a habitual offender, and the law states that he or she is too great a risk to allow back on the road. The revocation of a person’s driver’s license is a safety measure for the public as much as it is a punishment for the driver. If it doesn’t hurt, then what good is it? In that sense, even though the written law has no mechanism to “feel” anything, and therefore cannot “care” whether something is good or bad, to the extent the people who wrote it thought about the effects of revoking a person’s license, you can be sure they wanted it to sting.

Welcome to the 7th and final part of this article about the 11 things you should do – all of which begin with the letter “R” – to find the right Michigan DUI lawyer. In the prior 6 parts, we’ve seen how you need to relax, take the time to read, and learn as much as you can so that you can recognize who, amongst all the lawyers, is right for you (and who isn’t). You also need to rate those legal skills that are important to you, and you must resolve your budget, as well. You can’t pay money you do not have, but you shouldn’t pay too much, either. It is very important to resist buying into something simply because it’s what you want to hear, and reject meaningless slogans. They may grab your attention, but they don’t provide any real information. You should always remain skeptical and evaluate everything critical. In the last section, we talked about how you must realize what actually makes any one lawyer different from the rest. Here, in this final section, we’ll talk about how and why you should rank the lawyers you’ve checked out according to what you need, and how you should reach out to those who really seem to “speak” to you.

Call-Me-Sticky-Note-Callme1426-294x300Rank the lawyers by what you need. Often enough, we’ll find the consumer, on one side, hoping to find the right lawyer quickly and easily, and the lawyer, on the other side, trying to reel them in, essentially “shouting” the same slogans as everyone else. Then you get guys like me, who write all kinds of detailed articles that only a select audience will read, and BAM! There you have it…

Because I’m that guy writing all these explanatory articles and NOT barking out the same catchphrases as the larger herd, it’s clear that I am a better fit for those people who want to dig deeper and read: detail people. Skipping any discussion of fees for the moment, what’s clear is that I am NOT the lawyer for the super-impatient person who has little or no interest in examining how DUI cases work, or getting into any kind of analysis of the court process. And that kind of person isn’t “wrong” (although I think they may be doing themselves a disservice by not being a better consumer and doing more investigating); some people have more interest in certain things than others. Whatever characteristics or qualities they may have, YOU have to evaluate the field and find the lawyer who is the right fit for you and your case.

This is the 6th part (we’re nearing the end!) of a 7-part series examining the 11 things (all beginning with the letter “R”) you should follow to find and hire the right lawyer for your Michigan DUI case. Here, we’re going to sharpen our focus and look at finding what really stands out about any particular lawyer and makes him or her different from the rest of the pack. This is important, because unless you can point to a clear difference, you’re probably shopping for a lawyer like you’d shop for shoes. A person should be able to tell a friend or family member, “I’m considering this lawyer because ——“ in a way that differentiates him or her beyond just being another lawyer who “does” DUI cases. In fact, it’s quit fair to ask any lawyer, “What’s so different about you?” If a lawyer can’t explain that satisfactorily to you, as a potential customer, then how could you ever explain it to anyone else?

different-is-good-01-272x300Realize what’s really different. Although most lawyers fail miserably at this, every last one wants to appear unique. The result is that DUI lawyers, for example, look like one big herd of attorneys who all say the same things in an almost unanimous chorus of “me too.” Yep, they all graduated from law school, all passed the bar, and every last one of them tells the world that they have experience. They all say that they’re aggressive and/or tough, too, like Rocky getting ready for the big fight. Some of them will add in that they’re affordable, or that their phones are answered 24 hours (really, they personally take calls at 3:00 a.m.?) and that’s pretty much how each of them has tried (and failed) to distinguish themselves from the others. Look, if any of that stuff matters to you as a consumer, then by all means, make a note of it. Chances are, however, that it all goes right past you, like a sign that says “cold beer” (as opposed to warm beer?) or “hot pizza” (as opposed to a store selling cold pizza?).

As you check around for a lawyer (and shame on you if you don’t), you’ll find, for example, that some offices are really nice – (this is one of the things I’m most proud of – my friendly and helpful staff. In my office, whoever answers the phone should be able to answer most, if not all of your questions right when you call) – and some aren’t. The point I’m trying to make here is that you should be checking out enough different lawyers to be able to figure out who really is different and why. If the only thing you can say is that one lawyer’s office is closer, or open later than another, or that this one called you back the fastest, then you’re not doing this right.

This will be the 5th installment in my series about how to find the right lawyer for your DUI case. In the last section, we examined how you should be careful to not get tricked into handing over your money just because someone tells you what you want to hear. In this piece, we’re going to look at 2 things related to that: rejecting meaningless slogans and maintaining a healthy skepticism. The ultimate goal of this series is to help you make a wise choice and be a good consumer as you look for a DUI lawyer. Much of what we’ll examine has far more universal application, but my goal is to make sure that someone knows what to look for, and look out for, as they navigate the field of lawyers wanting their business.

63637814985Reject the meaningless slogans. Lawyers talk a lot, but they don’t always say much. Before the internet, lawyers were pretty much limited to advertising in the phone book. When the Yellow Pages ruled the day, space was extremely limited (and it still is, when you think about things like magazine ads), so the goal was to make your point in as few words as possible. Lots of lawyer-type catchphrases were born back then; things like, “tough,” “aggressive,” “experienced,” “I will fight for you,” and “results matter.” “Results matter” is probably the dumbest thing anyone could ever say (and I’ve said it!), because of course results matter. That’s like a restaurant running an ad that says, “your food should taste good.” Welcome aboard; Captain Obvious is on the bridge.

Being “tough and aggressive,” to a reasonable extent, are minimum qualifications for a lawyer doing any kind of criminal and litigation work. In that same way, a surgeon can’t be squeamish, nor can an airplane pilot be afraid of heights. For a lawyer to be “tough and aggressive” beyond a reasonable extent takes him or her into “hostile and irrational” territory. Any lawyer you consider hiring should have experience. Look, the bottom line is that you’re either paying for a lawyer’s experience, or you’re paying his or her tuition to get it, and that’s never good. There is a usual learning curve, and just as newer physicians are supposed to gain experience through their residency, younger lawyers typically cut their teeth handling court-appointed cases.

This will be the 4th installment in a series of articles about how you should look for a Michigan DUI lawyer. After acknowledging that a DUI is serious, I was quick to point out that it’s not the end of the world, and no one is going to die because he or she has been charged with Operating While Intoxicated (OWI). Thus, I made clear that the best thing to do is to relax, take a deep breath, read articles like this, learn some basics about what you’re really facing (not the scary-sounding stuff you’ll find on some websites), rate the kinds of legal skills that will be important in the lawyer you want, and then take an honest account of what kind of lawyer you can afford. In this section, we’re going to look at a very important warning – the idea that you should guard against the temptation to pay money just because someone tells you what you want to hear. Instead, you should look for honesty and integrity, and that means listening to what you need to hear.

2-243x300Resist buying into what you want to hear. Despite the value of real knowledge, some people (a lot of people, actually) will gladly fork over money to anyone who paints a rosy picture and tells them what they want to hear, rather than telling them what they need to hear: the truth. Don’t be that person. Of course you want your case dismissed (everybody does), and yes, there are all kinds of things that can impact the evidence against you, but those things that are significant enough to make a Judge throw an entire DUI case out of court always have been and always will be the exception, NOT the rule. You need a lawyer who will examine the evidence against you with a fine-toothed comb, and who will look carefully for anything that can be used to your advantage, but that’s not the same thing as some lawyer making it sound like just about any and every case can be knocked out if you hire him or her.

As much as it may feel good to have someone nod, sympathetically, when you tell them that you just can’t have a DUI on your record, that doesn’t change the fact that the evidence against you is either solid, or not. Does it count that you have made something of yourself and are otherwise a law-abiding, hard-working taxpayer? Absolutely. Will that get you completely out of a DUI, however? No. Your accomplishments and status can certainly help to make sure you get through the case with as few consequences as possible, but that, standing alone, won’t make the who thing go away. At the end of the day, DUI cases stand or fall based upon the evidence, period.

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