Articles Posted in DUI

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.

In my role as a Michigan DUI lawyer, I handle a lot of 2nd offense drinking and driving cases. On my website, 1st offenses, 2nd offenses, and 3rd (felony) offenses are examined in a more overview fashion, while on this blog, I have covered each of the OWI charges in rather painstaking detail within the DUI section. In this article, I want to circle back to 2nd offenses and look at how 2 things, in particular – your prior record and the location of the charge – can affect what happens to you. In many of my prior articles, I’ve made clear that in just about every 1st offense DUI case, you’re not going to jail. Things are different, however, in 2nd offense DUI cases, where jail is a very real possibility, although it’s seldom a certainty. In the real world, there are some courts that rarely, if ever send 2nd offenders to jail, a few that usually (or even always) do, and then there are the rest, in the middle, that may or may not play the jail card, depending on the circumstances.

round-two-221x300You don’t have to be a legal scholar to realize that you prior record matters, but it matters more than just because you have a prior DUI. By law, you can only be charged with OWI 2nd offense if, and only if, you have a prior conviction for another alcohol-related traffic offense within 7 years of the date of your arrest for the current case. By definition, then, every 2nd offender has a “prior record.” There is a lot more to this, however, than just that one previous DUI case, although the circumstances of that prior offense can play a greater (or lesser) role in how things turn out now in the new case For example, a person still on probation for a High BAC 1st offense ,who then goes out and picks up another DUI (and whose BAC in the new case is also really high) is going to be in a tough spot. Contrast that situation with one where an older guy who picked up his 1st DUI, with a really low BAC (just over the legal limit) nearly 7 years ago, after he staying late at his daughter’s wedding reception to help clean up. Now, assume the guy’s new case arose from him being arrested (with another really low BAC) on his way home from a surprise retirement party thrown for him after his last day at work. These are very different situations.

Beyond your previous DUI, however, any other prior record you have can matter. It was not any due to grammatical sloppiness that I wrote “can matter,” because not every prior offense really does matter, at least within the context of a 2nd offense DUI. For the most part, prior alcohol or drug-related offenses are considered more significant, as are any offenses that usually involve alcohol or drugs, like domestic violence and disorderly person charges. Thus, if Tipsy Tina, recently arrested for a 2nd offense DUI (with a prior that occurred 5 years ago) was also convicted of retail fraud about 12 years ago, back when she was a teenager, that offense will probably not have any effect on her now. However, if Tina has a marijuana charge, and even if it was 15 years ago, it will matter, if only a little. Of course, if Tina was convicted of having open intoxicants in a motor vehicle just a few years back, you can be sure that offense will have a fairly significant effect on what happens in her new case. When it comes to how much, if at all any prior record matters in a 2nd offense case, the only accurate answer is the dreaded, classic lawyer response – it depends.

This short article, like many others on this blog, was inspired by a conversation I had with Ann, my senior assistant. She was giving me the details of a conversation she had with someone regarding his DUI and suspended license charges, and noted that the caller had pointed out how he watched in court as one woman went before the Judge for a drinking and driving offense and didn’t get any jail time, and then tried to use that as a basis to predict what would happen in his case. Ann asked, of course, it he knew anything about her charge, prior record, or case history, and he responded that he didn’t. Ann then explained to the caller that no two cases are alike, and that you can’t ever compare your situation to anyone else’s, especially if you don’t know all of the details. That’s when the idea hit me, because I realized that just about everyone one of us looks around for comparisons in just about every situation we find ourselves. That may work, or at least work better, when it comes to fixing a jammed garbage disposal or something like that, but not within the context of a criminal or DUI charge, where there are just way too many variables.

compare-apples-and-oranges-IDIOM-300x253You most likely know this already, but that doesn’t stop you, or me, or really all of us from doing it anyway. That’s human nature. My hope is that this short article will help make clear how this not only doesn’t work in criminal and DUI cases, but can also be misleading. Let’s use an example: Imagine Drinking Dave picks up his 1st DUI in city “A.” On that same night, Tipsy Tina is also arrested for her 1st DUI in city “A,”, as well. Sounds kind of like they’re in the same boat, right? Well, there are about a million things (maybe even more) that could make their cases very different, and that, in turn, could make what happens to each of them very different, as well.

If Tina has had 2 prior MIP’s, even if they were quite a few years ago, her relationship to alcohol is going to be perceived by the court as risky, if not outright troublesome. This would be even more so if her BAC at the time of her arrest was high, like a .21. If Dave, by contrast, has never been in any kind of trouble before and his BAC was .12, he’s just automatically going to be seen as less risky than Tina. Generally speaking he’s likely to wind up with a less demanding term of probation, meaning he’s likely to have to test less frequently, and will probably not be found to need the level of rehabilitative or treatment services that seem almost certain for Tina.

As a local, Detroit-area criminal and DUI lawyer, I am in court just about every single workday, strategizing and speaking to make things better for my clients. however, lots of lawyers are in court everyday, so that alone doesn’t make any particular one better than all of the others, in the same way that the hot dog vendor is at the hockey arena almost everyday, but that doesn’t make him or her any kind of star player. It’s a matter of instinct and talent. If you’re facing a probation violation because you’ve messed up, you need to hire a real star, meaning the kind of lawyer who can talk the stripes off a tiger, talk you right out of trouble, and out of going to jail. In this setting, the ability to persuade is the most important trait you need on your side.

Helping-Hand-298x300If we’re going to be honest about probation violations, then we need to recognize that the majority of them occur because a person has either done something prohibited (like consume alcohol, use drugs, or pick up a new charge) or not done something required (like fail to complete some kind of classes or counseling). Less frequent, but still common, are those cases that involve things like a missed test (the courts basically conclude a test was missed because it would have been positive) or a false-positive test. For the most part, how and why ever it may have happened, if you’ve been violated, you’ve probably screwed something up, even if that wasn’t your intent. Judges, for their part, spend an enormous amount of time everyday listening to excuses about all this. For example, one of the most common (and least accepted) reasons given for a positive alcohol test is the use of cold medicine. It is so worn out that it is known as the “NyQuil defense” and so widely disbelieved that you can practically read the frustration on many Judges’ faces as someone tries to use it. Beyond the NyQuil defense, every Judge has heard every other excuse in the book, probably a thousand times over, so to get the best result in a PV, you can’t walk into court and sound like everyone else.

In a very real way, I think of probation violation cases as the true test of a lawyer’s ability to communicate effectively and speak persuasively. There are some really great attorneys who can make brilliant legal arguments about things like evidence and legal procedure, but that’s all dry stuff. When you’re standing in front of the Judge for violating probation, your lawyer needs to be the exact opposite of dry. As much as this requires a superb extemporaneous speaking ability, there has to be substance to what’s being said, as well. There’s an old saying that “if you can’t dazzle them with brilliance, baffle them with bull$hit.” Neither of those things are particularly useful here, or, maybe, you need a little of both. Remember, your Judge, like every other Judge, has heard it all. As a lawyer, when I’m handling a probation violation, I have to explain my client’s situation, keep the Judge’s attention (by not sounding like everyone else), and then persuade him or her to not lock up my client. At the end of the day, it’s what doesn’t happen to you that matters most, so all of this stuff can sound real good, but it’s really only worth anything if it keeps you out of jail.

The location of your criminal or DUI case is one of the most important factors in determining how it will turn out, and what will (and will not) happen to you. As a local, greater Detroit-area criminal and DUI lawyer, the very first question I ask when presented with any new case is “Where?” For example, a simple possession of marijuana case in one city can be potentially wrapped up in one court date, the whole thing kept off the person’s record, and result in nothing more than the assessment of reasonable fines and costs, while, across town, that same case could easily cost more than twice as much and land the person on probation with required drug testing, community service, and maybe even a “marijuana awareness” class (or classes), as well. There is really nothing you can do to change this, other than make sure your lawyer is familiar with how things are done in the court where your case is pending.

1304655796181855921-282x300It is certainly better if your lawyer is familiar with both the local courts in the broader geographic area where your case is pending, as well as the specific court in which you’ll be appearing. For me, that means all the courts in Oakland, Macomb and Wayne Counties. Even within the Tri-County area, however, there are some lawyers who spend so much time in any one particular court that they kind of miss out on the big picture of how things are done elsewhere. While there may be some truth to the notion that a lawyer who is “always” in one specific court really knows how things work there, it is also true that he or she may be too entrenched in that system to be capable of really standing up for the client and push for a different outcome. Think of the stereotypical teacher’s pet; you don’t want that for your lawyer. On the other hand, you certainly don’t want to be stuck with an attorney who isn’t in your court often enough to know how things are done there and, therefore, doesn’t know how to properly guide you through it.

What I’m saying, on the one hand, is that where your case arises is so hugely important that location plays a primary role in the outcome, and the lawyer you hire should be familiar with that court. What good does it do to bring in some attorney who can’t tell you how things are done there? On the other hand, I’m also saying that while experience with the court where your case is pending is important, you don’t want your lawyer to seem like he or she is employed there, either. That only creates a kind of unhelpful tunnel vision. Instead, the right amount of familiarity should be part of a broader understanding of how things are done across the larger local area. I can’t count the number of times I’ve persuaded a Judge to do something different (as in better for my client) by explaining how it’s done in another court. If you’re sensing that there is a kind of balance here, then you’re getting the point.