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Articles Posted in DUI

As Michigan DUI lawyers, we deal with a lot of 2nd offense and 3rd offense DUI cases. In our conversations with clients facing those charges, my team and I always explore any options they may have for admission into a sobriety court. The key goal of this article is to provide a short and sweet overview of sobriety courts. Because this subject is rather deep, however, it was no small task to boil things down into a single installment, as I’ve done here.

Help2-300x280Although each one is unique, a “sobriety court” is a regular court that has an officially sanctioned treatment program component for alcohol and/or substance abuse disorders. Although similar to an “adult treatment court” or a “drug court,” a sobriety court is a special kind of program designated by the State Court Administrative Office (SCAO) to not only offer counseling, treatment, and support, but also confers upon a Judge the power to override the Michigan Secretary of State’s mandatory revocation of a person’s driver’s license and grant a restricted license.

The primary aim of a sobriety court is to offer a wide range of otherwise expensive counseling and treatment options at little to no cost to someone who wants help with his or her relationship to alcohol (and/or drugs). The idea behind this is that anyone who is racking up multiple DUI offenses has some kind of problem, and anyone who is willing to do something about it should be offered assistance, rather than punishment. Thus, it should not come as a surprise that a sincere desire for help is a prerequisite for admission into a sobriety court program.

As Michigan DUI lawyers, one of the most common questions we’re asked by someone facing a 1st offense DUI is something like, “What’s going to happen to my license?” In this article, I want to answer that clearly and simply. The good news  is that although a conviction for any 1st DUI offense (OWI, High BAC, or Impaired Driving) will result in some kind of restriction to a person’s ability to drive, none of those charges will result in a permanent loss of license.

2-300x280To begin, we need to define what constitutes a “1st offense” DUI charge. In Michigan, an alcohol-related driving offense is considered a 1st offense if the date of the arrest for it occurs more than 7 years after the date of any previous DUI or alcohol-related driving conviction, including what’s know as a “Zero Tolerance” (Minor with BAC of .02 to .07) offense. The term “alcohol-related driving offense” means any “DUI-like” charge that involves driving while impaired, intoxicated, or, in the case of Zero Tolerance, having a BAC above .02.

Although it can be rather easy to get tangled up in dates, the legal definition of a 1st offense is actually quite clear: An OWI offense is considered a 1st offense if the person was not convicted of a prior alcohol-related traffic offense within 7 years from the date of his or her arrest for the current offense. The measure is NOT from arrest to arrest, nor from conviction to conviction. Instead, the clock starts running from the date of the conviction for the prior offense, and stops at the date of arrest (not conviction) for the next offense.

As Michigan DUI lawyers, we would love to be able to deliver nothing but good news to people who contact us about a pending OWI charge, but that’s just not how things work in the real world. This article will be a warning to anyone facing a DUI who starts looking around for information and then gets sucked in by some legal marketing message telling them too much of what they want to hear, instead of listening to what they need to hear. As the old saying goes, “if it sounds too good to be true, it probably is.”

Truth2-300x274Our office could make a lot of money if, instead of being honest, we made everything sound rosy and then sold an overly optimistic bill of goods to those who call us, but we’d never do that. Instead, we follow the Golden Rule to “treat others as you would wish to be treated.” In previous articles, I have tried to be more delicate about this, but the real point of this piece is that if you are a potential consumer of legal services for a DUI case, you need to understand that you’re going to be inundated with BS from legal websites looking to get your money.

Of course, our firm is every bit as much in business to make money as every other, but, returning to that Golden Rule, we want to attract good karma by taking care of people who need help the in the same way we’d hope to be taken care of when we need help. That means skipping the BS and telling the truth. This is rather the opposite of listing all the things that could be wrong with a drunk driving case, and then implying that the only thing that stands between the person facing the charge and some lawyer who can get the whole case dismissed is just paying his or her retainer.

As Michigan DUI lawyers, we understand the panic that many people experience following a DUI arrest. The sense of fear they have is often palpable. Unfortunately, this level of stress sometimes leads people to rush out and hire some lawyer, even after-hours, or over the weekend. That’s a mistake. Instead, and as I’ll explain in this article, the best thing a person can do is take the time to look around and comparison shop from the full range of legal help that’s available.

VSWW-300x270Finding a lawyer should be undertaken with the understanding that it’s something of a process. It’s a given, for example, that every lawyer (and everyone else in business) loves referrals. When someone calls our office at the suggestion of a prior client, I am flattered. However, I also find myself a bit bummed out if I learn the person hasn’t checked around at all, and is instead relying entirely on someone else’s recommendation. My ego wants our firm to have been chosen from among the competition, and wants to have won the comparison contest.

When someone contacts us about a DUI, I always hope they’ve already seen this blog and found that I’ve satisfactorily addressed some of their questions or concerns. Of course, I know people are in good hands with us, but I want them to know that, as well. The point I’m making is that if you’re referred to a lawyer – even our firm – you still owe it to yourself to check around and do some comparison shopping. I’ll repeat this theme throughout this article, but the fact is that there is simply NO downside to exercising good consumer skills and exploring your options.

In our roles as Michigan DUI lawyers, clients always ask us about what will go on (and what can come off) their records. In this article, I want to look at the consequences to a person’s record as the result of ANY alcohol-related traffic conviction. Recently, the Michigan legislature passed a bill to allow for the expungement (technically, the set-aside) of a conviction for at 1st offense OWI (DUI) from a person’s criminal record, but it was not signed into law by the governor, so our discussion here will focus on how things stand now.

CRR2-300x259One specific question my team and I get asked rather often is whether or not a DUI is a traffic offense, or a criminal charge. The simple answer is that it’s both. Technically speaking, a DUI is a criminal traffic offense because it carries a potential jail sentence, and therefore goes on both a person’s criminal and driving records. By contrast minor traffic offenses, such as speeding, are “civil infractions,” which means they’re not punishable by jail and only carry the potential of a fine and points that can be assessed upon a person’s driving record.

If a person is convicted of a criminal traffic offense, like a DUI, an entry will be made on both his or her criminal record, and his or her driving record. This makes sense when we break it down a bit more: a criminal conviction that does not involve driving or carry any potential driver’s license sanctions will only go on a person’s criminal record. A conviction for a minor traffic offense (like making a prohibited right turn at a red light) that carries no potential jail sentence is classified as a civil infraction, and will only go on someone’s driving record.

In part 1 of this article, we began examining why the Judge to whom a DUI case is assigned plays such an important role in how it will be handled. We noted that there are certain differences between courts that are more about local practice, and are mainstays of the way things are done there, independent of the Judge or Judges who preside there. By contrast, the Judge plays a key role in how other things are done, and that there can even be significant differences between how various Judges working in the same courthouse do things.

vectorstock_7584840-300x287I then went on to point out how these differences can show up from the very beginning of a case, and can affect not only the procedures used by one Judge as opposed to the next, but also the time frame within which a DUI case is wrapped up. Just about everyone knows that it’s “better” to have some Judges over others. However, the reality is that there is nothing a person can do about this because each case must be decided in the court that has jurisdiction over the municipality where it arose, and, in courts that have more than one Judge, cases are assigned among them on an actual, blind-draw basis.

By far, one of the biggest concern for my team and I, as Michigan DUI lawyers, is how any particular Judge perceives and “labels” a person’s relationship to alcohol. This directly affects whether or not a person will get off “easy” and just have to go through something like an alcohol-education class (or a few of them), or will instead wind up being required to do all kinds of burdensome counseling and/or treatment. The big and very real risk for anyone going through a DUI is being at the receiving end of a “knee-jerk” reaction by the court to treat everyone as if they do, in fact, have some kind of drinking problem.

As Michigan DUI lawyers, we are in court (or online, “in” court now, during the Coronavirus pandemic), every day, handling the entire gamut of OWI charges. I often point out that in DUI cases, location matters a lot, and that’s why my team and I limit our DUI practice to the local courts of Metro-Detroit (meaning Wayne, Oakland, Macomb, Lapeer, Livingston, and St. Clair Counties). We know what will fly, what won’t, and that what might work well with one Judge may completely backfire with another.

Judge2-300x259Precisely because we don’t take cases all over the state, our extensive experience handling DUI cases before the same Judges, in the same circle of courts, day-in and day-out, enables us to know how to bring about the best results in each of them. This means that the fees we charge buys our experience making things better in these courts. That’s a lot different than some lawyer charging what amounts to tuition, in order to to learn how things are done is some court where he or she doesn’t appear on a regular basis.

The point I want to make in this 2-part article is that it’s the Judge that makes every court what it is, and really every courtroom unique, and therefore different from all others. In a very real way, what is going to happen in any DUI case depends largely on the Judge who will be presiding over it, and how he or she runs things. Most people instinctively “know” this, but they generally don’t know exactly how much the Judge – and his or her personality – really matters in terms of what ultimately happens to a person going through a DUI case.

As Michigan DUI lawyers, we are often asked what a person should do right after a DUI arrest. The simple answer is to find a good DUI attorney by being a smart consumer and reading around. In this article, I want to flip that question around and focus on the single most important thing a person should NOT do when facing a DUI charge – be guided by fear and act too quickly. Although it’s normal to be somewhat freaked out by a DUI arrest, a person should always slow down a little, take a deep breath, and then be guided by reason as they figure things out.

DP2-300x266Of course, everyone’s biggest and first fear is being sent to jail. Let me be clear: Jail is almost never on the menu in 1st offense cases here in the Metro-Detroit area (meaning Wayne, Oakland Macomb and the surrounding counties). Unfortunately, it seems that there is money to be made by lawyers who position themselves as being able to save someone from this dreaded fate, even though it’s very unlikely to happen. Playing on a person’s fears in that way, especially when they’re vulnerable after something like a DUI arrest is just plain wrong.

Any lawyer or law firm that behaves in such a way, or that otherwise makes it seem like a person needs to act right away, rather than take some time to look around and compare attorneys, is either morally bankrupt or dangerously ignorant. In either case, such that’s exactly the kind of operation that should be avoided. For all the hype the reader is likely to encounter, remember that winning defenses and successful legal strategies in DUI cases are always the result of careful and deliberate planning, not panicked or rash actions.

In part 1 of this article, we began an overview of breath test refusals in DUI cases, and the larger subject of chemical tests as well as Michigan’s Implied Consent law. We saw how there are really 2 kinds of tests: a preliminary breath test (PBT) which is administered at the side of the road before an OWI arrest, and then a formal chemical test that comes after arrest. Although a “chemical test” can include either blood, breath or urine, in DUI cases, it’s limited to breath and blood, as urinalysis cannot be used to calculate person’s bodily alcohol content (BAC).

lklhlkI explained that the refusal to submit to a PBT is only a civil infraction, and is very different from the refusal to submit to a chemical test as contemplated by Michigan’s Implied Consent law. If a person refuses a PBT, he or she only faces a fine and a penalty of 6 points on his or her driving record. In the real world, my team and I almost always negotiate the dismissal of a PBT charge as part of the resolution of an OWI charge. Although a person is legally “obligated” to take a PBT test, the failure to do so does NOT carry any potential suspension of his or her driver’s license.

In contrast, we then saw that refusing a breath or blood (i.e., chemical) test after arrest will automatically result in a 1 year suspension of a person’s driver’s license, unless a he or she timely requests and wins a hearing to challenge the refusal for 1 of the 4 specified legal issues before a Michigan Secretary of State hearing officer. We then looked at the how those issues are defined in the law. In this second half, we’ll dig a bet deeper to see what those legal issues really mean and how a person can still get his or her license back even after an Implied Consent refusal.

As Michigan DUI lawyers, we have to deal with breath test refusal issues almost everyday. We field a lot of questions about breath and blood tests, Implied Consent license suspensions, and everything related to a person having refused to provide breath sample when arrested for a DUI. This 2-part article will provide an overview of Michigan’s Implied Consent law, rather than any kind of granular analysis of the subject. Here, our focus will be wide, and cover the broader implications chemical testing and the law in Michigan DUI cases.

Preliminary-Breath-Test-PBT-261x300At its most basic, Michigan law requires any driver arrested for an alcohol-related traffic offense to submit to a chemical test when requested to do so by a law enforcement officer. Technically, a “chemical test” can be conducted on either a breath, blood or urine sample. In DUI cases, urine tests are largely useless, so they’re never really an issue. Although the officer (or trooper or deputy) can choose to request either a breath or blood sample from someone arrested for a DUI, most (but not all) of the time, a breath test is requested first, instead of a blood sample.

Michigan’s testing law is called “implied consent” because, at the time every person obtains a Michigan driver’s license, it is expressly noted that, by accepting that license, he or she agrees to provide a chemical test sample if arrested for an alcohol related traffic offense. In other words, he or she agrees, in advance, and as a condition of the issuance of that license, to provide a breath, blood or urine sample upon arrest for a substance-abuse related driving offense. This means that a person’s consent to such a test is implied (as in pre-given), just like his or her consent to being searched is implied if he or she goes through airport security.

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