Articles Posted in DUI

In part 1 of this article, we began our examination of how and why a person facing an OWI (Operating While Intoxicated) charge may want to – or be required to – evaluate his or her drinking.  In this second part, we’ll continue that analysis.  If a DUI client is wondering about his or her relationship to alcohol, and whether or not it’s troubled, then we need to explore that.  One of the more important aspects of this to me, at least in my role as a DUI lawyer, is that I want to keep this private, meaning out of the court’s purview, to the extent possible.  This is especially true in 1st offense DUI cases, but not so much in 2nd and 3rd offense cases where the law essentially presumes a person has a drinking problem, anyway.  In the confines of my conference room, I can and do help my clients explore their drinking.  Although I have completed that post-graduate program of addictions studies, I certainly don’t “play” therapist.  I’m not a substance abuse clinician, but I do have a very unique skill set and an unusually good ability to communicate with people, and that allows me to speak with them and help them evaluate things in a way that can be helpful.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/12/problem-solution2.2-300x268.jpgBy unfortunate contrast, most lawyers seem pre-programmed to reflexively argue against the notion of a client having any kind of drinking problem.  After all, as a DUI lawyer, I measure success in terms of what DOES NOT happen to my client.  When a DUI just “happens” and the client doesn’t have ay underlying issue with alcohol, then it’s my job to make sure we demonstrate that so that he or she doesn’t wind up getting socked with all kinds of classes and counseling.  In that situation, no one is better equipped to protect the client from the overreach of the court system than me.  However, if my client does have some issue with drinking, I also need to protect him or her, because the courts typically overreach there, as well, often ordering too much, and often the “wrong” kind of counseling, treatment, and things like AA and alcohol and drug testing.

None of this, as you can see, is about convincing a person that he or she has a drinking problem.  People will either learn that on their own, or not.  However, there are things that can be shared that can help a person put his or her drinking into perspective.  A client once explained to me how he had “managed” his drinking for a few years by following what almost sounded like a “drink by the numbers” plan.  Later, when he made the decision to quit, he realized that when you even have to think about controlling or limiting your drinking, you already have a problem, because normal drinkers never have to think that way.  I’m paraphrasing here, but he said that normal drinkers are normal drinkers because they can drink normally; a normal drinker can go out with friends to have a drink or two, and have just a drink or two.  Maybe someone they haven’t seen in a while shows up, so they stick around for a third.  Or, maybe the person has one drink, looks at the time, and says, “you know what, I’ve got a lot of stuff to do, so I’m going to take off.”  Whatever else, a normal drinker doesn’t have to keep count so that a drink or two doesn’t become eight or ten or even more.

At some point after you pick up a DUI, and even if it’s your 1st offense, you’re going to have to think about your drinking.  In this article, I want to examine the issue of drinking, and when a person’s relationship to alcohol become troubled. I write this piece wearing a number of hats, including Michigan DUI and driver’s license restoration lawyer, someone who has completed a post-graduate, clinical program of addiction studies, and an all-around interested party who thinks that lawyers are sometimes too afraid to address this topic and acknowledge the elephant in the room in DUI cases.  This 2-part article is for everyone, but will be of particular relevance to anyone who has ever wondered if his or her drinking has grown problematic, especially in light of a current OWI charge, or any past convictions for drinking and driving.  This installment won’t be preachy because our goal here isn’t to make someone admit he or she has a problem (maybe they don’t), but rather provide some honest food for thought.

see-clipart-problem-statement-7-261x300Many people released from jail following a DUI arrest are picked up by someone close, like a partner or spouse.  If there have been any kind of drinking issues in the past, you can be the subject is going to come up right away, and maybe even in the car, on the ride home.  I’m being diplomatic here, but you can almost imagine the other party yelling at the person to get a hold of him or herself, or lighten up on the drinking, or something similar.  “How the hell much did you drink?” is probably a question to be expected, and any normal person is going to wonder how they got themselves into this situation.  Were they drinking with people who party real hard?  Do they spend too much time drinking, or hanging out with drinking people?  Has it become difficult to go out and have just a drink or two over the course of a night?  Is it hard to stop after just one or two drinks?  It’s understandable (although not legally excusable) to have had a few too many at some special event, like a wedding, or a Christmas or New Year’s party, but in the real world, that’s almost never the situation behind a DUI arrest.  Some people will, when things settle down, really take the time to think about what happened, and why it happened, and for plenty of them, especially those facing a 1st offense charge, a DUI arrest is easily written off as truly out-of-character, because it is.  For other people, however, the situation is more complicated; some will deny that anything is or could be wrong, while others will wonder.

First, we have to acknowledge an objective reality: DUI drivers, as a group, have, statistically speaking, a significantly higher incidence of drinking problems than the population at large.  In other words, if I told you to go out and assemble 2 groups of people, with the first being 1000 people selected at random, and the second also being 1000 people selected at random, but with the additional qualification that the folks in this group either had to have previously had, or currently be facing a DUI, no matter how you screened them, the second group would always test out with a significantly higher rate of problem drinking.  Indeed, it is this reality that, in large part, accounts for the court system’s built-in “alcohol bias.”  However you cut it, if you are facing, or have had a previous DUI, you have an elevated risk of having a drinking problem.  Like it or not, that’s the starting point for any honest inquiry.

It wasn’t that long ago that I wrote about the issue of location in a Michigan DUI case. This facet of OWI cases is so important and critical to how things will play out for anyone charged with drunk driving that I believe we should take another look at it. The very first thing I ask my staff when they mention a new DUI case to me is “where?” When someone emails me about a drinking and driving charge, if they haven’t already mentioned the location, I will always ask, “In what city is your case?” The “where” factor, of course, is often the single most significant factor in terms of what happens to anyone facing a DUI. It is both interesting and ironic that some of the “tougher” locations, in terms of what ultimately happens to the client, are also the most efficient, providing a fast turnaround time for the lawyer handling a case, whereas some of the more lenient jurisdictions don’t move cases in and out nearly as quickly. You’d think that in a business where time really is money, a lawyer would be far more interested in the quick “in and out” over anything else, but at least for me, I “feel” the location by way of what will probably happen to my client. In other words, I’d rather get stuck all day in a more lenient court and walk out with a happy client than do a quick “in and out” in some court where the client is more likely to get pounded.

yellow-red-green-black-pushpins-in-a-map-300x275As much as I’d like to claim the moral high ground here, most lawyers feel the same way. When a group of attorneys winds up talking shop, for example, things invariably turn to war stories about some tough court here, or how well things went in another court over there, and it’s clear that most lawyers “feel” for their clients, and would prefer, over everything else, to be in a court that is more forgiving rather than one, however efficient (meaning fast), that is not. If the rules were suddenly changed and the lawyer for a person arrested for a DUI could pick the court where his or her case would be handled, there would be a line out of the door of a few courthouses, while certain others would remain virtually empty. Not many lawyers are going to admit this, but every Judge knows, in their heart of hearts, that back when he or she practiced law, certain courts were more desirable than others (and this applies even if the Judge was a hard-nosed prosecutor that preferred the toughest of Judges). And while that’s all well and fine, the bottom line is that no matter what you or your lawyer want, or hope for, in terms of where your case arises, it is where it is. DUI cases are truly accidents of geography.

As to those courts considered “better,” you’ll never find a published list anywhere; these are the kinds of things discussed privately between a lawyer and client, or potential client, and are also the kinds of things no lawyer would ever publicly admit to, anyway. However, you’re dreaming if you don’t think there is a general consensus amongst DUI lawyers as to which courts are “better” than others, and as I noted before, every Judge on the bench now has his or her likes and dislikes back when they practiced law. For a DUI lawyer, “better” usually means “easier” on the client, but even that isn’t a hard and fast rule. Let me explain…

If you live outside of Michigan and have picked up a DUI charge here, one of the more important challenges you’re going to have to overcome is finding the right lawyer. In this article, I want to address that without saying, in a self-serving way, “hire me.” Because I limit my DUI practice to the Greater-Detroit area (meaning cases brought in Oakland, Macomb, Wayne and a few of the surrounding counties), my intention is to provide some guidance for any out-of-state resident in need of a Michigan DUI lawyer. Much of this also applies to Michigan residents who live far away from their city of arrest. To be clear, if you have been or expect to be charged with a Michigan OWI (Operating While Intoxicated) offense, it’s probably a good idea to look for a lawyer who concentrates in this field, and not some general practice or even general criminal lawyer, or one from the “other side” of the state, wherever that may be. Because of the number of DUI cases I handle, I am usually representing several out-of-state resident clients facing a Michigan DUI charge at any given time. In my 27-plus years, I have handled so many of these cases that my staff and I know exactly how to work them out in just 1 court appearance. Ditto for clients from “up north” or the west side of the state who have picked up a DUI here, in the Metropolitan Detroit area.

Lower_Peninsula_of_Michigan_map-238x300One of the most important aspects of handling a drunk driving case for an out-of-state resident (or someone who lives in Michigan, but far away) is to try and wrap the whole thing up in 1 day (meaning 1 trip back to Michigan, or to the Detroit area for the client), or, in those courts where that’s not possible, to limit the client’s inconvenience to no more than 2 trips back. This is one of the main reasons I suggest that a person in this situation look for a lawyer who concentrates his or her work in the DUI field, because it’s more likely that such a lawyer will have made these types of arrangements before over some lawyer who occasionally “does” DUI cases as part of a larger practice. Obviously, the farther a person has to travel, the more inconvenient this becomes, and travel expenses can be an issue, as well. While I cannot recall a single time when my office has not been able to reduce multiple court dates down into one (or two, at most) for a distant client, the courts do not have a mechanism for this. In other words, despite the fact that distant or out-of-state DUI cases are not as rare as pink unicorns, the courts will generally leave it to the lawyer to work everything out with the various departments (clerk’s office, probation department, and Judge’s office) in order to consolidate the process.

Everyone facing a DUI wants to know, “what’s going to happen to my license?” This is especially true for non-resident. If your license has been issued by a state other than Michigan, there are a few considerations at play. First, Michigan cannot take any action against or do anything to an out-of-state license. By law, Michigan can only restrict, suspend or revoke your ability to use that license within its borders. This can get a little deep, so we’ll unravel it here shortly, but not before noting that what will ultimately happen to your license will be determined by your home state. Let me explain…

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 _____.”

design-190x300If 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.

One of the biggest marketing lines for any lawyer who handles DUI (and other criminal) cases is “avoid jail.” Going to jail is everyone’s worst fear, and it seems like a huge mistake for a lawyer to fail to address it. I talk about it, although I also go out of my way, both on my website and in many of my DUI articles on this blog, to make clear that jail is NOT on the menu for just about anyone facing a 1st offense DUI, and even for many people who have had prior drinking and driving convictions. In this article, I want to examine how the fear of jail and the desire to stay out of it can actually skew a person’s thinking enough to lead him or her into making a rash decision when hiring a lawyer. The first and most important part of all this is to remember that, if you’re facing a 1st offense drunk driving charge, you are almost certainly NOT going to jail anyway, so paying to stay out of jail is as much a waste of money as is an insurance policy for a global nuclear apocalypse.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/11/55783d0a71f00.image_-207x300.jpgAlthough not for the exact same reasons, it’s also a bad idea to run headlong into some lawyer’s office and hand over your money in a 2nd offense DUI case, solely based on the idea of avoiding jail. First, in many of these cases, you’re not going to jail anyway, and second, in a few courts, you’re going to get locked up for a few days, no matter what. The key distinction here is that a skilled and especially tactful lawyer may be able to keep you out of jail in those cases where it does exist as a real possibility. In other words, in those courts where you’re not going to go, you’re not going to go, while in those courts where a few days is a certainty, you’re going to go no matter who you hire as a lawyer. Anyone who tells you differently is either outright lying or woefully inexperienced. No lawyer with the sophistication to carefully finesse the client through a case where jail is a possibility (as opposed to being either a certainty or a complete non-issue) will be heard barking “avoid jail!” louder than the next guy. And as much the right kind of lawyer will be ever so diplomatic in this regard, neither will he or she be hawking their services to those most likely to be taken in by the “stay out of jail!” crowd. People who know better tend to be drawn to people who know better. Whatever else, you won’t see Jaguar trying to appeal to buyers in the market for a Kia.

Our first lesson here is significant – the idea that you’re either not going to jail, or a short stint is pretty much unavoidable – and that efforts focused upon jail are only useful where it exists as a very real (and avoidable) possibility. Of course, even where jail is pretty much in the bag because a person has multiple DUI convictions, it needs to be minimized as much as possible. However, there is way more to this. When facing a DUI charge, other consequences, like what will happen to your driver’s license, are always a concern (because something will happen to it), as are the ramifications to your criminal record and your driving record, not to mention the kind of probation and other penalties you will face. Would you rather stay out of jail and simply pay fines and costs and be done with the whole thing, or would you prefer to stay out of jail and be put on reporting probation for 2 years, required to complete heavy-duty counseling, attend AA meetings 5 days a week, and show up for breath or urine testing 3 times per week on top of all that?

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,

understand-159x300A 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 article will examine those situations where a person has an outstanding criminal or DUI case, or an old warrant (for something like a probation violation) that needs to be cleared up and wants to take care of it. As a Michigan criminal and DUI lawyer, my office handles several matters like this every month. Over the course of the last 27-plus years, I’ve done this so many hundreds and hundreds of times and know the procedures so well that it’s easy to overlook the fact that someone trying to get a handle on it may want to know something about how it all works before deciding to call a lawyer.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/11/Fix-1.2-176x300.pngAt it’s most basic, an old or outstanding warrant is there because you didn’t show up. Even if you were abducted by aliens, the bottom line is that there is a pending court matter that has not been addressed. In the course of my years, I’ve seen every reason imaginable, from people who were going through a bad time “back then” and just blew it off, to folks who truly never knew about the case or warrant, and everything in-between. Whatever the history, there are only 2 situations that really matter now, and that’s whether you’re turning yourself in voluntarily or you’ve been picked up somehow. In other words, are you a voluntary surrender, or did you get get caught? Of course there are nuances to all of these things (someone who got picked up as a result of a traffic stop may have truly not had any clue he or she had an outstanding warrant, and someone who has let a matter hang out there for years may be motivated to take care of it only because he or she needs to do so for something like a new job), but in general, it’s almost always better to present yourself rather than have the warrant catch up with you.

Part of my job, at least in a voluntary surrender case, is to make arrangements with the court to handle the matter. Every court is different, at least to some extent. Sometimes, there’s nothing more to arrange beyond just showing up together. Many district courts, however, only handle these matters on certain days and/or at certain times. This seems strange, that a person who is “wanted” and is willing to come in to recall an outstanding warrant can really only do so on certain days, and/or at certain times, but that’s the reality. This is more important to someone who now lives out-of-state, or far away from where the case is pending, because one of the big goals here is to minimize the number of trips to court and to get this resolved as efficiently as possible. Of course, on of the biggest fears is that you’ll be thrown in jail, but I cannot recall a single instance of that ever happening to any of my clients when we’ve done this voluntarily. Normally, I will instruct the client to bring a certain amount of money for bond (just in case), but however that part of things plays out, both my client and I can plan to walk out the front door together, often with a new date to come back to court.

For most people, the experience of being arrested for a DUI is actually ironic, because it takes a person who is not a “criminal” in any sense of the word and thrusts him or her right into the middle of the criminal process. It’s a good thing if a person facing a drinking and driving charge thinks, “I don’t belong here.” The experience of being hauled off to jail is humiliating, and the more you feel that, the better, because it means your moral and social compass is pointing in the right direction. In this article, I want to return to the notion that who you are as a person matters in the context of an OWI (Operating While Intoxicated) case.

e09a97cf-e8ee-4768-a967-262b55c8e70b-300x300No matter who you are, you walk through the courthouse doors with a certain amount of status, called “social capital.” This is not about money; instead, it’s about your worth as a person. Mother Theresa had almost no earthly possessions, but her social capital was sky-high. On the other hand, some obnoxious “gansta rapper” who has accumulated a lot of fame and money while also getting in trouble all the time has much less social capital. In that sense, social capital is primarily about how much you are worth to society – as a family member, friend, employee/employer and neighbor. Money can be a consideration, but mostly when it stands a reference to what you’ve made of yourself through work and education, or how you help the community overall. Social capital is, more than anything else, a measure of the kind of person you are and your personal accomplishments.

In a very real sense, the farther you potentially have to fall as a result of a drunk driving case, the better. Most law-abiding, hard-working people are going to be at least a little bit freaked out over picking up a DUI. That’s as it should be. Imagine the kind of person with enough experience in the criminal justice system to NOT be concerned- that’s exactly the person you don’t want to be. In a very recent article, we poked around this subject a bit by examining what it’s like for a person who has never been in trouble before to wind up charged with drunk driving. There will certainly be some overlap here, particularly because, in a general sense, the less you’ve been in trouble, the more social capital you’re likely to have. An unemployed high-school dropout doesn’t have a lot of social capital in society. By contrast, a married nurse who owns a home and has 2 kids has plenty.

Most of the DUI cases that go through the courthouses all over the country are 1st offense cases. In fact, OWI (Operating While Intoxicated) 1st offense is one of, if not THE most common charge seen just about everywhere, and certainly here, in the Greater-Detroit area, made up of Macomb, Oakland and Wayne Counties. Accordingly, it is the bread and butter of any real DUI lawyer’s practice (including mine) as well as a primary contributor to the revenue stream of the local district courts in Metro-Detroit, if not everywhere else. Most people who get a DUI will only get one in their lifetime, and never be back for a 2nd offense. The flip side of that, however, is that every person who does pick up a 2nd or 3rd DUI had previously said something like, “I’ll never do that again” to the prior Judge, thus accounting for the court system’s inherent, but understandable skepticism when it hears that.

1-liter-glass-liquor-bottle-display-179x300My perspective on all this is a result of my rather unique practice. My 1st offense DUI clients are, overall, a bit “above” average. I say this because most (although certainly not all) of my 1st DUI offenders have never been in any kind of trouble before, alcohol-related or otherwise, and I wind up representing a lot of people who are have solid professions, like engineers, physicians and nurses as well as other professional types. My client base is made up of solid, well-mannered people who have good incomes. Almost none of these individuals come to my office with any kind of experience in, or savvy about, the criminal justice system, and that’s a good thing. They’re often nervous (usually more so than necessary, because jail isn’t even on the menu in a 1st offense case) and sometimes just plain “freaking out.” It is not uncommon for my clients to have all kinds of questions about things they hope or think may help get their case dismissed. They often mention various “urban legends” that they picked up somewhere about things like how to beat a DUI, or about the Judge assigned to their case. They have lots of questions, and a lot of these questions begin with either “Don’t the police have to…?” or “Is it true that…?” Almost every last bit of that stuff is wrong, but I understand their perspective, as well. To someone who’s never been down this road before, everything is new.

Back in the real world, where these cases are resolved, when I do get a case knocked out of court, it’s usually because of something I find as part of my customary review of the evidence, and not anything so painfully obvious to the client. In other words, the police don’t generally screw things up, and when there is a basis for a challenge to the evidence, it won’t happen because of something like Officer “Smitty” having spilled his coffee down the breathalyzer machine, so the police had to use a hair dryer to get it running again for your breath test. I can say stuff like this all day long, but human nature being what it is, people will always have their “newbie” questions, and that, too, is a good thing. Who you are as a person matters in a DUI case, and your lack of any prior record is always beneficial. That’s not to say that many people didn’t have something like an MIP in their past, but as prior records go, less is more, and none is always better.