Articles Posted in DUI 1st Offense

Almost every DUI case gets worked out and settled at the pretrial stage. Knowing what a pretrial is – and is not – is really key to a basic understanding of how most criminal and DUI cases are resolved. In this 2-part article, I want to shed some light on the role of the pretrial, because once you better understand it, you’ll find that the whole idea of an upcoming pretrial is certainly nothing to be worried about. Despite the mystery that seems to surround it, this is actually a very simple concept.

590737319_1479768804-300x270Perhaps the biggest misconception is that there is just a single pretrial, meaning only one such proceeding. Unlike certain phases of the criminal and DUI process, like an arraignment, or a sentencing, which only happen one time, there can be any number or pretrials. Most of the criminal and DUI cases that I handle have at least 2 pretrials, and often more. Thus, it’s not a matter of only having one pretrial in a case, but rather that there can only be one pretrial at a time, with the first one most often being followed by at least one more.

This makes more sense when you realize that the definition of a pretrial is really any meeting of the parties (meaning the prosecutor and the defense lawyer) prior to (i.e. pre) trial. While a pretrial is usually used as an opportunity for negotiations to take place, anytime the parties get together before trial, the term pretrial generally applies. And to be clear, although we’re getting a bit ahead of ourselves, the overwhelming majority of criminal and DUI cases DON’T go to trial, meaning that very few pretrials are ever followed by an actual court trial.

In part 1 of this article, I began reviewing how my in-depth understanding of recovery, and the various way people do, in fact, recover from alcohol (and drug) problems gives me a decided advantage as a Michigan driver’s license restoration lawyer, to the point that my office guarantees to win every first time license restoration and clearance case we take. Our overview began with a discussion on the importance of examining a person’s relationship with alcohol in the context of DUI cases, and particularly 2nd offense cases. Here, in part 2, we’re going to shift that focus to recovery, and how that is central to success in a driver’s license appeal case.

2-300x184When someone contacts me about a license restoration or clearance appeal, the first thing I want to know is the last time he or she had a drink. There is no way to overstate this: proving you have quit drinking for a sufficient period of time and have the commitment and tools to remain alcohol-free is the absolute key to winning a driver’s license appeal. Nothing else matters without sobriety.

This is where a lot of people, including lawyers, get lost – right at the part about having the “commitment and tools” to stay sober. Pretty much everyone in the world is familiar with AA, but unfortunately, that’s also just about all most people know about recovery. For a long time, AA was the only game in town. Before AA, the only way to address alcohol problems was what we now call the “moral model,” where the hope was a person could be shamed into not drinking anymore, or somehow “prayed” into recovery. Not surprisingly, that didn’t work.

Up until recently, if you would have asked what I think sets me apart as a Michigan driver’s license restoration lawyer, my answer would have almost certainly centered on the fact that my office guarantees to win every license restoration and clearance case we take. However, a recent discussion with Ann, my senior assistant, provided an insight that I think is helpful to someone as he or she looks for a lawyer. As she pointed out, what makes us so different from every other lawyer is that we really know and care about recovery and sobriety. We’ll examine this over 2 installments.

heart-recovery-300x218In a very real way, I seemed to have overlooked the recovery aspect, probably because it’s so central to who I am and the work I do. To be sure, my articles about sobriety leave no doubt that my understanding of the development, diagnosis, treatment of, and recovery from alcohol and drug problems runs very deep, and goes miles beyond the legal aspects involved in winning a license appeal. Having completed a post-graduate program of addiction studies, I bring a healthy measure of clinical knowledge unmatched by any other lawyer I know.

However, it goes even farther than that, because my reasons for spending the money and time on all this was to be able to actually help my clients; first, as people, and second, within the context of their license restoration, DUI or criminal cases. That’s the part I have been overlooking. I’m going to put false modesty aside for a moment and candidly point out that if you’re looking for a lawyer, you simply will not find any other attorney or law firm that comes close to knowing about or believing in recovery like me and my team.

In part 1 of this article, we began looking at the factors involved in answering a question I get all the time in DUI cases – “should I start going to counseling or AA?” In terms of how we use a person’s involvement in any such treatment (if at all) within the framework of a DUI case, the best answer I can provide is that, “it depends.” Every case is different, as is every Judge. That said, there are also certain generalities to DUI cases that cannot be overlooked.

AA-books-and-round-table-300x200One that is very important and, indeed, pervasive, is what I call the “alcohol bias.” Courts have been getting tougher on DUI cases year after year ever since I became a licensed attorney nearly 30 years ago, and that’s only going to continue. Within a few weeks of me starting this article, the husband of a local Judge was killed by a drunk driver, and 16 days later, an entire Michigan family of 5 people were killed on I-75 in Kentucky by another drunk driver. Those are just some of the most recent local DUI-related things to take place and receive lots of negative attention within less than a month of when this piece was written.

In late December of 2018, Utah became the first state in the country to drop the legal limit for DUI to .05, something I predict will be the start of a trend.

As a Michigan DUI lawyer, one of the more common questions I am asked by a potential or new client is whether or not they should get into counseling and/or go to AA. In this article, I want to address that concern. There is a lot more to this than a simple “yes” or “no” answer, so we’ll address the various considerations involved over 2 installments.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2019/01/Talker-2.--300x196.jpgMy analysis is influenced by a lot more than just my being a DUI attorney, because I also bring a strong clinical perspective to this, as well, having completed a post-graduate program of addiction studies and having worked daily, for almost 3 decades now, with both addicted and recovering populations. I believe that my job is to help my clients in every way possible, not just in the purely legal sense. Of course, it would be easier for me to just charge a fee and just focus on the legal stuff, but my conscience always reminds me to treat others as I would wish to be treated, so I live and work by that golden rule.

Let’s begin, then, by refining the scope of our inquiry a bit. After a drunk driving arrest, when someone asks me, as a lawyer, about going to AA or counseling, what they really want to know is if doing so will “help” their case and if doing so will look good. We’ll examine that aspect of things later, but I think the first question should really be whether or not the person him or herself thinks they might need a little help.

More than almost anything else, where a DUI case arises is the single most important factor in how things will work out. If we took the identical set of facts regarding an OWI arrest and charge and watched how that case would play out in several different courts, it would become obvious that location is the key variable. In this article, I want to restate the importance of the “where” factor in DUI cases here in the Metro-Detroit area of Oakland, Wayne and Macomb Counties.

Why-2-300x265The whole issue of location is easy to bring up, but quite a bit harder to explain, because it must be done diplomatically. Everybody knows that some courts are tougher than others, and that Judges can be all over the map in terms of being lenient or not. No lawyer, including me, wants to disparage any Judge, or in any way play “favorites.” Our job is to work with them, day-in and day-out. It’s a given that, in the privacy of a lawyer’s conference room, a client might hear that this Judge is a “teddy bear,” and that one is a “hard-a$$,” but not in an article like this.

By design, I limit my DUI practice to the Tri-County area (Wayne, Oakland and Macomb). My team and I are in multiple local district and circuit courts every single day. The breakdown of where we go is pretty evenly split amongst the the 3 counties. I’d honestly say the breakdown is something like 35% in Oakland, 33% in Macomb, and 32% in Wayne. We deal with the idiosyncrasies of the various local courts every single day, and have the experience of thousands of cases to know how they do things, what they have in common, and how each one is different from the others.

This article will examine the kind of restricted license that a person receives following a 1st offense DUI. In the previous installment, we looked at and explained the restricted license that’s granted after a successful driver’s license restoration appeal for someone whose privileges were revoked for multiple DUI’s. Here, we’ll focus on the restricted license that is automatically issued as a result of any of the 1st offense OWI charges in Michigan.

images-1The best way to understand a restricted license is by explaining what it does not allow. A restricted license is a far cry from a full license. It is a serious restraint on the kind of driving a person can do, and provides a limited – severely limited – ability to drive, but at least it’s something, and a hell of a lot better than not being able to drive at all. Essentially, a restricted license is supposed to allow most people to drive enough to merely “get by.”

This arrangement will work better for some people than others, and there are folks for whom it will be little to no help at all. That’s just the way it is. There is no provision in a restricted license for a person to do many of the things we consider “normal,” like taking kids to school, going to the gym, or doing grocery shopping, and there is nothing that can be done about that.

Facing a DUI charge makes the the old saying that “there’s good news, and bad news” as true as ever. In this short article I want to cover 2 things about a DUI: what will happen to your license and what goes on your record. An OWI charge always comes as bad news. We have to start with that, but there is some good news here, as well, because the consequences to your driver’s license and your record aren’t nearly as bad as you probably fear right now.

good-bad-news-400px-300x161It’s normal for people to freak out over a DUI arrest. Unfortunately, most lawyer websites do little (or nothing) to alleviate such stress because the prevailing trend in legal marketing is fear-based. Whether intentional or not, the idea is to point out all the bad things that could ever possibly happen in order to motivate (scare) someone to call for help. I hate that tactic, and have always taken the opposite approach. For example, I like to point out that, almost without exception, jail is NOT on the menu in a 1st offense DUI case, at least here, in Oakland, Macomb or Wayne Counties.

That said, there are plenty of real-world consequences that will happen as a result of a DUI. The good news, however, is that what most people fear will never come to pass. Make no mistake, success in a DUI case is always measured by what does NOT happen to you. Proper legal handling of a drinking and driving case is the key to avoiding and/or minimizing all the potential consequences and penalties.

As Michigan DUI lawyers, one of the most common questions we are asked is “what’s going to happen to my license?” We’re going to keep this article simple and confine our examination only to 1st offense cases. The whole subject of OWI license sanctions for the various offenses can get rather deep. Since the majority of drunk driving charges are for 1st offenses, anyway, this overview will apply to the largest potential audience.

LCD-3-300x171We’ll start by clarifying one important point – “1st offense” means that a person has not been convicted of any other prior alcohol-related traffic offense within 7 years. DUI driver’s license penalties are imposed by the Michigan Secretary of State (SOS), and under its rules, a conviction can ONLY count as a 1st offense if a person has not had any other alcohol-related driving convictions within 7 years from the date of arrest for the current charge.

In the real world, almost every first offender arrested for drinking and driving will be charged with one of two DUI offenses: Operating While Intoxicated (OWI), or OWI with a BAC of .17 or more (often called “High BAC”). Most of the time, a 1st offense DUI is simply charged as “OWI.” Nowadays, the more serious “High BAC” offense is charged about 1/3 of the time. It’s critical to understand that what happens to your license is a result of the charge to which you wind up pleading guilty, meaning your conviction charge, and NOT the charge that’s first made against you. In fact, most of the time, we can negotiate the original charge down to something less serious.

One universal truth for anyone facing his or her 1st offense DUI charge is a general fear of the unknown. Obviously, anyone charged with a High BAC offense has at least some understanding of the importance of his or her BAC result. While that number is important in each and every DUI case, its role is far more front and center in 1st offense cases, regardless of whether the charge is simply OWI (Operating While Intoxicated) or OWI with a BAC of .17 or greater (High BAC). In this article, I will highlight some of the more important reasons for that. This is the kind of subject that that we could either dance around politely, or, as I will do here, tackle head-on, without mincing words.

o-OPENER-facebook-239x300We need to start with the proposition that the whole world believes that the higher your BAC, the drunker you were. Now, having just said that, I can almost hear many people saying what everyone in the DUI world hears all the time – “I’m not a big drinker!” That may be so, but that has nothing to do with the fact that, as a hard and fast rule, a higher BAC means you drank more and were, therefore, more intoxicated. However you cut it, nobody has 3 glasses of wine over the course of 5 hours and blows a .18. Moreover, and no matter what you and I think or say about it, it matters far more what the Judge and the probation officer assigned to your case believe. Whatever else, you can take it to the bank that everyone in the criminal justice system assumes, as a matter of fact, that your BAC correlates directly with how much you had to drink and how drunk you were.

This is really important, because it’s right about here that people start to make bad decisions about handling their case. Sure, it probably feels good to speak with a lawyer who agrees with you and tells you what you want to hear and doesn’t speak as candidly as I am here, but think about that last line in the preceding paragraph: “…you can take it to the bank that everyone in the criminal justice system assumes, as a matter of fact, that your BAC correlates directly with how much you had to drink and how drunk you were.” That is an ironclad fact. If you don’t work from that as a starting point in handling your DUI case, then you’ve already begun with a misstep. The flip side of this is also important, because the lower a BAC score, the easier it will be to believe that the person charged is not a big drinker.