Articles Posted in DUI

A DUI charge can be overwhelming.  The more you look for information, the more you find, from scary sounding penalties to complicated (and expensive) legal analyses.  It is not wrong to simply want to get through it all and put this mistake in the past.  As much as I might not like to admit it, I am probably guilty, myself, of adding to all the complexity and the seemingly endless stream of information out there about OWI charges in Michigan.  To date, I’ve published over 300 DUI articles, and stand rather proud of my work.  Despite that, however, I think it’s time to try and simplify things from the point of view of the person actually going through a drunk driving case.  In my 26-plus years as a lawyer, I’ve represented every kind of DUI client you could imagine, from the trusting souls who simply ask for you to guide them in the best way possible (thankfully, I come fully equipped with a strong conscience, so I take that request seriously and live by the rule to treat others as I would wish to be treated), those that want to fight every part of everything, at every step along the way, to those people who just want to get on with their lives and who want the whole DUI to go away as quickly and painlessly as possible.  This article will be for that last type.

moving-on-300x279It is in the DNA of every lawyer, or at least it should be, to carefully examine the evidence in each DUI case to make sure it stands up.  To the unscrupulous, it might sound like a jackpot to find someone ready to pay your fee just to get through his or her DUI as quickly as possible.  To any REAL lawyer, though, the very first instinct is, and always should be, to obtain and look over the evidence before anything else.  A GOOD lawyer will always look for a way to beat the case.  Looking for it doesn’t mean you’ll find it, and, in fact, most  drunk driving cases are solid enough to not be dismissed outright, but – and you can take this to the bank – you will NEVER find a way to get a case knocked out of court without looking for it first.  In all of the cases where I have found a way out, it was discovered by looking for it.  Most often, it’s not the client who comes in like some pissed-off constitutional expert, fist-banging the table and telling me how the cops got is all wrong who gets his or her case dismissed.  Those types are simple blowhards who make a lot of noise but very little impact.  Instead, it’s generally the more well-mannered person from whom I extract specific information by question and answer where we’ll find that one little nugget that can change everything.  It’s certainly no great revelation that most DUI cases are pretty solid, and certainly solid enough to not be thrown out of court, although that should never be the case for lack of trying.  A thorough review of all the evidence is a necessary and preliminary undertaking in every DUI case, despite the fact that some lawyers milk a lot of money out of their clients by making it seem that such basic, foundational work is something special or is some way more than routine.

While we’re here, let’s talk money.  This is kind of a taboo subject to many lawyers, but not with me; I like to be candid and up front, and I’m suspicious of anyone who’s not, or plays coy, especially about costs.  Among lawyers, there are all kinds of strategies to bring in new money: some use the free consultation thing as an opportunity to get someone into “the client chair” (by contrast, all my consultations are done over phone, right when you call).  Other’s use the ruse of “getting a little information,” and then inquiring about a person’s line of work to gauge how much he or she makes before quoting a fee (mine, on the other hand, are fixed).  Personally, I am repulsed by all of this secretiveness, and publish my fees both on my blog and my website.  If lawyers were cars, then my fees would put me in the BMW/Lincoln/Mercedes range.  I am not cheap, and have zero desire to compete with anyone else based upon price, but I also think that too many lawyers charge fees that are way beyond reasonable for the lack of specific DUI experience they bring to the table.  On this point, you will simply have to sharpen your consumer skills in order to get what’s best for yourself.  Of course, there is nothing to be had from the bargain, or cut-rate lawyer, but paying out really big money often does not buy any level of corresponding skill.  It’s just as easy to be sold out cheaply as it is to get “taken”  by paying too much for unnecessary work.

Generally speaking, it’s better to wind up facing a 1st offense DUI in a Macomb County district court rather than anywhere else.  There are 9 district courts in Macomb: The 37th district court in Warren, the 38th district court in Eastpointe, the 39th district court in Roseville, the 40th district court in St. Clair Shores, the 41-A1 (Sterling) district court in Sterling Heights, the 41-A2 (Shelby) district court in Shelby Township, the 41-B district court in Clinton Township, the 42nd Division 1 district court in Romeo, and the 42nd Division 2 district court in New Baltimore.  As a group, these courts handle the cases for every municipality in Macomb County.  In this article I will examine why, even if you’ve been unlucky enough to be arrested for an OWI charge, it’s at least a bit of good fortune if your case is in a Macomb County district court.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/06/AR-161219904.jpgmaxh400maxw667-200x300.jpegEven though what we know as the Metro-Detroit area is comprised of 3 adjacent and closely connected counties, (the “Tri-County area” of Wayne, Oakland and Macomb), each one, at least as far as court systems go, can kind of be like its own separate country, and those broader differences filter down into all of the district courts within their respective borders.  I trust the reader understands that, as a Michigan DUI lawyer who practices exclusively in the Tri-County area, I’m not going to rip any court, nor make any specific and unflattering comparisons between one court and another.  However, I can explain this almost as clearly by outlining a few key factors that show why, at least for the person facing the DUI, having it in one of the district courts mentioned above is real break.  To be sure, there are plenty of times when someone charged with OWI or OWI with a  BAC of .17 or greater (High BAC) will end up with a more lenient outcome from some court in Wayne or even Oakland County, but there are also plenty of times when that won’t be the case.  Thus, one of the defining attributes of the Macomb County district courts is a general consistency to what happens to DUI drivers.

The focus of this article is on what happens to you in a DUI case, and in that sense, you’d have to  be nuts to want ANYTHING other than the most lenient outcome possible.  If I had to go through the DUI process, I’d want my case to be heard by the nicest and most sympathetic Judge out there; I’d hope the case could be dismissed, or, if not, that I’d get the best plea deal possible, and wind up with the least amount of penalties, as well.  Nobody would choose more punishment over less punishment, or having to pay more fines and costs rather than less, right?  Let’s start, then, with some really good news: you aren’t going to jail in a 1st offense OWI in Macomb County.  Even with a High BAC charge, jail isn’t on the menu.  When I meet with a new client and I state this so matter-of-factly, I usually have to repeat myself, and explain it a little because many people get all worked up about getting locked up, even though it’s simply not going to happen.  It’s understandable that everyone’s deepest fear is going to jail, but we can end all that stress right here – you’re not going to jail.  That said, there are plenty of other things that could, might and, indeed, will happen, so our time is better spent looking at them in the context of a 1st offense DUI case brought in a Macomb County district court.

Within the more than 300 DUI articles I have published on this blog, I have examined just about every aspect, facet, and step of drunk driving charges, and often in painstaking detail.  This article will be an abbreviated look at the steps of the Michigan DUI legal process.  My goal is to put up something short and easy to read.  This is actually somewhat difficult for me, because, as can be seen by the content of my other installments, I’m an explainer.  If you’ve been arrested for a drinking and driving offense anywhere in the Detroit-area (meaning anywhere in Macomb, Oakland or Wayne County), you certainly want information, but sometimes – and that’s the reason for this attempt at brevity – it’s better to start with the bigger points and work your way down, to the extent you’re interested, to all the finer details.

S240_F_93677434_xaPPejliipFMA7YQHOAlm19KPIqgPB5CAt it’s most basic, a DUI case has 3 main phases: the arrest, the court proceedings, and the post-court requirements (meaning probation).  The arrest part, as we’ll see, is rather simple, and really doesn’t help explain what’s going to happen (as in what’s coming), because you’ve already been through it.  Next, we’ll look at the court proceedings, and we’ll break that down a bit further by examining, if not in detail, at least in general, what you can expect to take place in your case.  Finally, we’ll talk about post-court requirements, meaning (for most people), what probation is all about.  The focus here will be on short and sweet.

The Arrest.  You already know how this works, or at least worked in your case.  The police have contact with the driver for some reason, either by pulling him or her over for a traffic stop (usually for something like swerving, violating a traffic law, or following up on a cell-phone tip) or by showing to something like a traffic accident.  Although the arrest itself is rather straightforward, what takes place immediately before and leads up to it is keenly important in a DUI case.  The officer’s observations of the driver (bloodshot, glassy eyes, speech that is slurred, difficulty in balancing, etc.) must always be examined by the lawyer, as should the person’s performance on the field sobriety tests.  In the real world, the police report is almost always going to portray the driver as doing rather poorly. This, in turn, makes it important to obtain and review any dash-cam video of the stop, the field sobriety tests, and anything else.  One rather universal rule about handling DUI cases is that the lawyer should thoroughly examine all the evidence, and that means obtaining and watching the police car dash cam video in just about every case.  For all of that, though, the arrest itself ends a ride to jail, followed by your eventual release, usually the next day, and often after having posted some money (technically called an “interim bond”).

As a Michigan DUI lawyer, I deal with drunk driving charges every day.  While just about everyone uses the term “DUI” to describe it, technically speaking, there is no such thing in Michigan.  The legal term here for a drinking and driving offense is “Operating While Intoxicated,” or “OWI.  In this article I want to focus on one of the most important components of Michigan’s drunk driving laws known as “Impaired Driving,” often referred to simply as “Impaired,” or by the initials “OWVI.”  Although still an offense listed in Michigan’s Operating While Intoxicated statute (law), Impaired Driving is the least severe of all drinking and driving offenses and is the sought-after goal and plea bargain in any DUI case that doesn’t otherwise get thrown out of court.  In the real world, “Impaired Driving” essentially translates to “no jail,” and that’s just for starters.  To keep things short (and hopefully interesting), I’ll skip much of the history lesson and get right to what Impaired Driving is all about and why, as far as drunk driving goes, it’s the best (and least serious) of all DUI charges.

deal-300x194In Michigan, as in all 50 states, a driver is considered drunk when his or her BAC is .08 or above.  That unanimity of that national standard will change on December 20, 2018, when the legal limit in Utah will drop from .08 to .05, and this writer predicts it won’t be very long before other states, including Michigan, follow suit.  Here, however, is where we need the short-version history lesson about how things got to where they are now.  Prior to 2003, the legal limit for drunk driving in Michigan (then called “Operating Under the Influence of Liquor,” or “OUIL”) was .10.  At the time, the legal limit for Impaired driving was .07.  In 2003, when Michigan changed it’s DUI laws to become the last of all 50 states to adopt the .08 standard, the offense of Impaired Driving was retained, but the BAC limit of .07 was scrapped.  As it stands now, there is no magic number, or BAC threshold, for Impaired Driving.  Instead, a person is considered to be guilty of Impaired Driving, when, according to the statute, “The person’s ability to operate the motor vehicle is visibly impaired.”

There are several rather important differences between any of the regular OWI offenses (including 1st offense OWI, OWI with a BAC greater than .17 (also known as “High BAC” or “Superdrunk”), OWI 2nd offense, and OWI 3rd (felony) offense), and Impaired Driving.  In terms of what you will actually experience in a 1st offense case (as opposed to a laundry list of technical differences that are more academic than practical), about the biggest advantage to Impaired Driving is that you won’t lose the ability to drive.  A conviction for Impaired Driving requires a person’s license to be restricted for 90 days, whereas a conviction for OWI requires that a person’s license be completely suspended for 30 days with NO DRIVING WHATSOEVER (this  is called a “hard suspension”), followed by 5 months of restrictions.  For someone convicted of High BAC, the license sanctions are even worse:  No driving at all (hard suspension) for 45 days, followed by the next 10 and 1/2 months on a restricted license that only allows the person to operate a vehicle equipped with an ignition interlock unit.  Just for driving purposes alone, Impaired Driving is a kind of jackpot.

If you are facing a Michigan DUI charge, the list of things that can happen to you certainly seems long and scary.  In my role as a local, Wayne, Oakland and Macomb County DUI lawyer, I have written extensively (this is my 300th DUI article) about how very few of them will ever happen.  In a 1st offense drunk driving case, for example, and with only 1 possible exception out of the 115 district court Judges in the Metro-Detroit, Tri-County area, jail is simply NOT on the menu, meaning it’s just not going to happen.  In this short article, I want to shift the focus away from fear-based marketing and scare tactics found in so many other places, and look, instead, at the 3 things that WILL happen in every drinking and driving case that goes through the court system.

3-300x262First, there will be at least some restriction to your driver’s license.  Even so, let’s start with the good news: if this is a 1st offense charge (that includes an OWI with BAC .17 or more, also known as “High BAC”), you will NOT lose the ability to drive.  If, however, you are convicted a 2nd DUI charge within 7 years, or a 3rd within 10 years, your license will be revoked (meaning taken away for good, and not simply suspended for a time), unless you enter into a sobriety court program.  The majority of DUI cases in the court system are 1st offenses, so if yours is one of them, this means that instead of worrying about losing your license, you should be looking at the restrictions likely to be placed upon it.

In a 1st offense case, what ultimately happens to your license depends on what your lawyer negotiates as part of a plea bargain, NOT on your initial charge.  Thus, someone charged with OWI or High BAC should not worry about the license penalties that go along with the offense listed on their ticket or court notice, but instead on what sanctions follow the final deal ultimately worked out by their lawyer.  Consider this: In a High BAC case, a person will be required to drive using an ignition interlock, and on a restricted license for 10 and 1/2 months after serving a 45-day “hard” suspension where he or she cannot drive at all.  However, I am able to negotiate most of my client’s High BAC charges down to Impaired Driving (OWVI), and the license sanction for that is merely 90 days of a restricted license, allowing the person to drive to, from and during the course of work, for school, medical treatment and such.  The real upshot of the 90-day restriction is that a person just cannot do any pleasure driving for 3 months.  This is much better than the penalties he or she feared when originally charged with High BAC.

As a Michigan, Tri-County (Wayne, Oakland and Macomb) area DUI Lawyer, I speak with all kinds of people about drunk driving cases.  In this piece, I want to talk about some of the regrets I hear from people who hired the wrong DUI lawyer and payed a lot of money only to say they were “taken.”  I want to keep this article short, so in it, I will exchange some of my usual diplomacy for directness and candor.  To begin, you must understand that merely paying a lot of money doesn’t necessarily get you the best, nor even a good lawyer.  It just means you’re out a chunk of cash.  In addition, one of the biggest sucker jobs going gets people to line up and fork over wads of money in the mistaken belief that paying top dollar will somehow make your whole DUI case go away.  Here’s a simple, ironclad fact that no lawyer can dispute, no matter how rosy a picture he or she paints otherwise: any chance to get your case “knocked out” of court is due entirely to the facts exist within it.  No one you hire can change those facts, and by the time you ever even think of calling a lawyer, they have, for the most part, already been cast in stone.  What you need, instead of fear-based or feel-good marketing slogans, is a competent, honest and thorough examination of the facts by an experienced lawyer who can make the very best of them.

Hear-300x270There is a whole industry of lawyers who make a lot of money by peddling the idea that if you just hire them, everything can be made to disappear because they have some kind of secret, or special magnifying glass that will find the things wrong with your case that no one else can.  The truth, however, is that the actual numbers don’t back that up at all.  In a certain way, many DUI lawyers market themselves in the same way as dietary supplements.  There is one radio ad, in particular, that I think is genius marketing, if not total BS.  It’s for some magic weight loss pill, and at one point, it’s advised that if you’re losing too much weight, you should simply cut your dose in half.  Now, if this stuff worked even 2% as good as that all sounded, I’d certainly remember the name, and you’d know it, too.  As cheesy a marketing strategy as that sounds to my ears, though, plenty enough people are paying out lots of money for it, because this ad has been running for quite some time.  The reason is simple; people buy into what they want to hear, and in the world of DUI cases, nothing sounds better than making it all go away.

Except it doesn’t work like that.  Can you guess what the overall success rate is for beating a Michigan DUI at trial?  It was .15% in 2015, down from .21% in 2104.  You read that right: point-one-five percent and point-two-one percent, respectively.  That means less than one-quarter of one percent of all people arrested for an alcohol-related traffic offense were acquitted if they fought the case at trial.  These are the verified, official numbers required by law to be gathered by the Michigan State Police as part of its Annual Drunk Driving Audit that tracks every alcohol-related traffic arrest in the state.  These dim figures go way beyond some kind of “results not typical” disclaimer you see in the fine print of get rich quick ads, but even more worrying, I have never seen this information talked about on any other lawyer’s website.  No one really wants to get into this because it’s not good for business, particularly if that business relies on emotional, rather than well-informed, decisions.  In the real world, those decisions become the the biggest source of regret for the trusting DUI client too focused on buying his or her way into what they want to hear and not enough on the realities of all this.

In part 1 of this article, we began looking at the benefits and growth of DUI sobriety courts in Michigan.  We examined how these programs can help someone facing a 2nd offense DUI, and even a 3rd offense DUI, not only to get sober, but also to NOT lose their driver’s license.  I pointed out that in my practice as a DUI and driver’s license restoration lawyer, I deal with alcohol problems on both sides of the equation; from those facing a drunk driving charge and struggling with their drinking, to those who have gotten sober and are ready to win back their driver’s license.  In addition, I bring a clinical background and education to my practice, which initially made me a bit skeptical of sobriety courts.  However, because of the many success stories I have seen, I have been won over and think everyone facing a 2nd or 3rd DUI should at least consider sobriety court, if it’s an option.  We ended the first installment with 1 of 3 real-life examples of sobriety court success from my own case files.  Let’s move on now to the others, and then look closer at the what sobriety court really is all about.

Happy-Joyous-Free-214x300My second example is a situation I have dealt with many times since, but this driver’s license restoration case, from a few years ago, connected me to one of my first sobriety court graduate clients.  In these cases, I am hired to get the person’s restricted sobriety court license changed to a “full” license.  Normally, exploring a person’s recovery and the depth of his or her commitment to sobriety is the “meat and potatoes” of a driver’s license restoration appeal.  When I walked into the room to meet this fellow (he had not been my DUI client, so he was a new to me), I was a bit skeptical of his sobriety credentials, considering that they were exclusively from his participation in the sobriety court program and that they were only a few years old, at that.  Boy, was I in for a surprise.  This guy told a story about having been dragged kicking and screaming into sobriety court, figuring he could live for a year or a year and a half without a drink and somehow get through it.  Cloaked in denial and filled with resistance, the light switch flipped for him early on in the program and he just had an epiphany that he could and would never drink again.  He said that there were 2 sayings from the AA program that hit home with him: “I didn’t get in trouble every time I drank, but every time I got in trouble, I was drinking,” and “I was sick and tired of being sick and tired.”  Counseling helped him get honest with himself, and when he could no longer believe his own lies, he just knew that he had to put the plug in the jug and quit drinking for good.  But for him, like my other client, it was a lot more than just not drinking that changed his life; he got sober.  His whole life changed, and he was happy and upbeat and making money because he became a much better version of himself.  He ditched his anger and resentments and if you met him, you’d have seen and felt just how magnetic a person he was (and still is).  He too, credited sobriety court for helping him break through his denial and achieve real sobriety.  The most obvious thing about the guy was that he was a happy, positive and radiant person.

The third example comes from another DUI client of mine who I got into a sobriety court.  In this case, the court where his 2nd DUI was pending had (and still has)  a sobriety court program.  This client is amongst the very nicest of people you could ever meet, with a flair for the artistic and dramatic that makes him fun to just be around.  Although he acknowledged early on that drinking had become a problem for him, and he wanted the help from sobriety court, he wasn’t quite ready, early on, to quit drinking for good.  In other words, he struggled a bit.  It happens.  This is what people mean when they say that relapse is part of recovery.  Fortunately, my client just happened to wind up in an awesome sobriety court program, and the Judge didn’t give up on him.  Just like everybody else, the decision to finally stop drinking for good – the one that “stuck” and really marked the start of his sobriety – came as the all-too-cliched, but also very real “light bulb” moment.  Part of his sobriety court program was to see a therapist, and at first, he didn’t much like the guy because the therapist wasn’t buying any of my client’s BS and excuses for drinking.  As my client explained it, the therapist challenged him in a way that had him thinking even after the sessions ended, and it was that “food for thought” that eventually tipped the scales in his mind in favor of NOT drinking anymore.  Although the decision to quit drinking was ultimately my client’s, he credited the dialogue with his therapist for helping him get to that point.  On a side note, this client did not fit in well with the AA program, and to his Judge’s credit, he was allowed to use alternative community supports instead.  At any rate, this dynamic fellow really came into his own and blossomed in his sobriety.  More important than the external changes, however, was the fact that, internally, he was happy.  He found the joy in life again, and it all came about because of his participation in the sobriety court program.

The landscape of 2nd offense DUI cases is changing rapidly in Michigan due to the growth of sobriety courts.  The sobriety court law was enacted several years ago as a test, or pilot project, but it really took off, and now, more and more courts are getting in on the act.  At first, I was a bit cautious toward the whole idea, in part because of my clinical training in addiction studies.  In addition, some of that reticence was due to the fact that my practice is kind of split between handling DUI cases and driver’s license restoration appeals for people whose licenses have been revoked for multiple DUI convictions (in that sense, you can think of my practice like a “Q-tip,” with my role as a DUI lawyer on the one end,  a license restoration lawyer on the other, and alcohol as the stick that holds them both), so I deal with real sobriety even single day.  Early on, the most noticeable impact of sobriety courts was a large spike in ignition interlock violation cases before the Michigan Secretary of State.  And if you looked at just that data alone, you’d have gotten a limited, mostly negative, and completely inaccurate view of sobriety courts.  As it turns out, the sobriety court program has done a lot of good, and we are really only at the starting gate with respect to its larger potential.  In this 2-part article, I want to outline some reasons why anyone facing a 2nd, or even 3rd offense DUI should consider the sobriety court option, and look at bit at what’s involved.

meeskonnakoolitus-enesemotiveerimise-kunstSobriety court is a functional example of the “carrot and the stick” approach because the programs provide a huge incentive to the participant by way of overriding the automatic revocation of his or her driver’s license (meaning a person can get a restricted license where it would otherwise be impossible), while balancing that with zero tolerance for any further drinking, backed up by all kinds of testing to insure compliance.  The court system, for its part, automatically (and by operation of law) concludes that any person with a  2nd (or 3rd) offense DUI has a drinking problem.  For all the arguments to the contrary the reader may have, it is a given within the court system that if you’ve picked up a 2nd or subsequent offense, your drinking is a problem.  Period.  We have to begin from there.  The goal of sobriety court is to provide intensive rehabilitative services and help a person overcome that problem.  Obviously, this won’t work at all for someone who feels that his or her drinking is not troublesome.  Anyone convicted of a 2nd DUI offense within 7 years will automatically have his or her driver’s license revoked and, realistically speaking, won’t be able to legally drive again for at least the better part of 3 years.  It’s worse for someone convicted of a 3rd DUI within 10 years, because the mandatory revocation there is at least 5 years, and this applies no matter what the final conviction offense (like even if a person gets a great lawyer for a 3rd offense felony DUI charge and has it negotiated down to a 2nd offense misdemeanor, something I do all the time).  In a stunning exception to these set-in-stone license sanctions, a sobriety court Judge has the power to override a revocation after a 45 day suspension and grant a restricted license to anyone in the program.

This is huge, and coming from me, that means a lot.  Since about 1/2 of my practice is driver’s license restoration cases, having any 2nd or 3rd offender get a sobriety court license means one less potential license appeal for me.  If I was entirely self-interested, my analysis would end there.  But the reality is that if you can save your license and avoid having to hire me (or someone like me) just to win a restricted license years down the road, you’d have to be crazy to at least not think about it.  From my point of view, this is a no-brainer.  The problem, however, and where I still pause, is that I am not in favor of looking at sobriety court ONLY as a means to keep your driver’s license.  Part of my DNA as a lawyer and a person is the strong clinical focus that I bring to my cases.  Beyond my post-graduate matriculation in addiction studies, the entire focus of driver’s license restoration cases is on sobriety and recovery, topics that have been central to everything I do for more than 25 years.  Nor is this just some academic or professional interest, either, as I have had close and direct personal interaction with addiction issues and those struggling with them.  As a result, I want my clients to get help, and I want to assist as much as I can in that, but I have a strong aversion to just “gaming” the system and wasting sobriety court resources on someone whose only interest is in his or her driver’s license.

In my role as a Michigan DUI lawyer, examining the evidence is a critical step in every drunk driving (OWI) case I handle.  Can you imagine a doctor or dentist treating a patient without first conducting a thorough examination?  It’s essentially the same thing for a lawyer to properly (emphasis on proper) represent someone facing a DUI charge.  As much as any doctor, dentist or lawyer will want to know what the problem is, he or she will also want to know what it is not.  In the context of a DUI arrest, a driver’s contact with the police and what follows, including the stop (was the car, in fact, swerving?  Did it cross the yellow line?  Did the driver commit some other traffic infraction?), the field sobriety tests, and the arrest itself aren’t just important to the case, they essentially make up the case.  As a result, it is standard practice in my office to obtain and review the video evidence in almost every drinking and driving case that crosses my desk.  In this short article, I want to make clear why it’s always prudent to obtain and review the police car dash-cam video.

Copper-2As a general rule, there is never a good reason to NOT get a copy of the in-car police video.  Many “cut rate” legal operations and court appointed lawyers skip this step, principally because they don’t have enough time to do it, especially for what they’re (often not) paid.  Bargain, flat-fee law offices make their money on the quick turnover of cases, and court appointed lawyers are expected to wrap up a case in just a few minutes after meeting their assigned client in court.  When you hire a good lawyer, however, you should be paying for him or her to do everything necessary to insure the best outcome in your case without wasting time or money on things that won’t.  Reviewing the dash cam video is always the smart thing to do.  Moreover, even in those cases (the majority of them, really) where the dash-cam video does not reveal some catastrophic police mistake that will get the case tossed out of court, or otherwise demonstrate the the driver was not over the legal limit, just knowing that to be the case provides clarity and removes any doubt as to the best way to proceed.

Sometimes the dash-cam video can lay a golden egg, and be used as the basis to challenge the evidence.  Whatever else, DUI cases don’t dismiss themselves, and one thing is for sure: you will never find a reason for a case to be “knocked out” without looking for it, first.  The mindset with which the evidence is approached has a lot to do with this.  If you watched almost any DUI dash-cam video with the instruction to find confirmation or evidence that the subject was driving drunk, you’d probably find some.  Because you were focused on confirming something, you would almost automatically overlook anything that indicated the contrary.  This is known as “conformation bias.”  As a DUI lawyer, I have to assume a contrary conformation bias perspective, namely, that my client did NOT do anything wrong, or anything too wrong, and that if his or her performance on any of the field sobriety tests was something less than optimal, there is a good and rational explanation for it.  Even approaching these videos with an “open mind” isn’t good enough; they have to be watched with an eye to finding those things that help the client.

In the course of every DUI case that goes through the court system, and before ever being sentenced by the Judge, a person must, by law, complete a mandatory written alcohol screening test and meet with a probation officer for an information-gathering interview.  The results of that screening test (it is calculated using a numerical scoring system) and probation interview are used to prepare a sentencing recommendation (this too, is required by law) that is sent to the Judge to be used in deciding exactly what sentence to hand out.  In the real world, this step is THE most important part of a drunk driving case because it directly impacts what will happen to you more than anything else.  Accordingly, being prepared for both the written screening and the probation interview is critical to producing the best outcome possible.  In my DUI practice we’ll spend several hours (at least) in preparation for this, including having a separate appointment and prep session a few days before you go for your interview with the probation officer.  Among the herd of DUI lawyers, I am uniquely qualified to help with this, having studied and worked with alcohol and drug issues for over 2 decades as well as having completed a formal University post-graduate program of addiction studies.  The development, diagnosis, treatment of and recovery from addiction disorders is at the core of everything I do, every single day.

Tester-2-300x265Preparation for the alcohol screening test begins at our very first meeting.  I typically use about an hour at that first appointment to going over (or, as I say, introducing) the questions you’ll be answering because I believe this information is best absorbed by being presented twice; initially at that first meeting, and then again, typically at our second office appointment right before you go in for the meeting with probation.  This whole process of alcohol screening and meeting with probation is variously referred to an assessment, a PSI (for pre-sentence investigation), and/or a screening.  Whatever it’s called, it refers to the procedure and process wherein a person completes the written alcohol screening test (to confuse matters more, the testing instrument itself is sometimes called a “substance abuse assessment”), meets with, provides information to, and is also interviewed by the probation officer.  All of this is used to formulate that written sentencing recommendation given to the Judge.  It is a critical mistake to allow the client to take the screening test and/or walk into that probation meeting without having gone over everything in order to make sure he or she is thoroughly prepared.

Perhaps the biggest and most common miscalculation I see lawyers make is assuming that, when they speak at the sentencing, they can somehow convince the Judge NOT to follow the probation department’s recommendation in some significant way.  It doesn’t work like that; it never has, and it never will.  When you walk into court on the day of sentencing, your lawyer is required to get a copy of the sentencing recommendation from the court clerk and review it with you.  In fact, the Judge will specifically ask if you’ve seen the recommendation, and if there are any errors within it that need to be corrected.  Later, you and your lawyer will be asked for any comments about the recommendation itself.  This is more a formality rather than anything else, because in the real world, pretty much every Judge, in every court, follows the recommendation, if not to the very letter, then damn close to it.  To put it another way, the sentencing recommendation is really the blueprint for what’s going to happen to you, and there is simply no Judge who is going to disregard any substantial part of it.  This means, then, that the best and only real chance you have to influence what’s recommended, and, in turn, to affect what ultimately happens to you, is to be prepped and ready for the screening and the probation interview.  It is a fool’s errand, really, to just show up in court and start arguing against the recommendation as it sits in the Judge’s hands.  That’s no better than pissing in the wind.  Indeed, if you are not carefully readied for the whole PSI process, then you are stumbling blindly through your DUI case without any kind of plan.