Michigan Criminal Defense Lawyer Blog
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.
Perhaps 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.
When 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.
In 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.
One 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.
My 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.
The 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.
The 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.”
It’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.
We’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.
We 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.