Articles Posted in DUI 1st Offense

It wasn’t that long ago that I wrote about the issue of location in a Michigan DUI case. This facet of OWI cases is so important and critical to how things will play out for anyone charged with drunk driving that I believe we should take another look at it. The very first thing I ask my staff when they mention a new DUI case to me is “where?” When someone emails me about a drinking and driving charge, if they haven’t already mentioned the location, I will always ask, “In what city is your case?” The “where” factor, of course, is often the single most significant factor in terms of what happens to anyone facing a DUI. It is both interesting and ironic that some of the “tougher” locations, in terms of what ultimately happens to the client, are also the most efficient, providing a fast turnaround time for the lawyer handling a case, whereas some of the more lenient jurisdictions don’t move cases in and out nearly as quickly. You’d think that in a business where time really is money, a lawyer would be far more interested in the quick “in and out” over anything else, but at least for me, I “feel” the location by way of what will probably happen to my client. In other words, I’d rather get stuck all day in a more lenient court and walk out with a happy client than do a quick “in and out” in some court where the client is more likely to get pounded.

As much as I’d like to claim the moral high ground here, most lawyers feel the same way. When a group of attorneys winds up talking shop, for example, things invariably turn to war stories about some tough court here, or how well things went in another court over there, and it’s clear that most lawyers “feel” for their clients, and would prefer, over everything else, to be in a court that is more forgiving rather than one, however efficient (meaning fast), that is not. If the rules were suddenly changed and the lawyer for a person arrested for a DUI could pick the court where his or her case would be handled, there would be a line out of the door of a few courthouses, while certain others would remain virtually empty. Not many lawyers are going to admit this, but every Judge knows, in their heart of hearts, that back when he or she practiced law, certain courts were more desirable than others (and this applies even if the Judge was a hard-nosed prosecutor that preferred the toughest of Judges). And while that’s all well and fine, the bottom line is that no matter what you or your lawyer want, or hope for, in terms of where your case arises, it is where it is. DUI cases are truly accidents of geography.

As to those courts considered “better,” you’ll never find a published list anywhere; these are the kinds of things discussed privately between a lawyer and client, or potential client, and are also the kinds of things no lawyer would ever publicly admit to, anyway. However, you’re dreaming if you don’t think there is a general consensus amongst DUI lawyers as to which courts are “better” than others, and as I noted before, every Judge on the bench now has his or her likes and dislikes back when they practiced law. For a DUI lawyer, “better” usually means “easier” on the client, but even that isn’t a hard and fast rule. Let me explain…

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.

My 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.

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.

Even 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?

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.

At 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.

In 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.

A big part of being a Michigan DUI lawyer is representing people who have never been in trouble before.  A drunk driving charge is a criminal charge, but the kind of client for whom I handle a DUI is hardly any kind of “criminal.”  Most of my DUI clients are people who have never been arrested before, and therefore never imagined being transported to a police station in handcuffs and spending a night in jail.  Then it happens.  If you’re reading this, chances are you, at least someone you care about, has recently been through a DUI arrest.  If it’s you, then you know it sucks.  If it’s your spouse, partner, sibling, child or someone important to you, you’re probably sharing in the misery.  Let me begin with the good news; Assuming you didn’t hurt anyone, and with the exception of just one Judge in the Greater-Detroit area, there is almost certainly no more jail in your future for a 1st offense DUI.  I say this upfront because I hate how some lawyers pander to people’s fears.  You know the type; they’re everywhere, reminding you of all the ways that a drunk driving charge can ruin your life while selling their services to save you from certain doom.  To be sure, a DUI is serious business, but in more than 26 years, I’ve represented people from every walk of life – from surgeons to sergeants, nurses to nannies, teachers to techies, engineers to bakers – and NOT ONE of my 1^st offense drinking and driving clients has ever lost a job, or otherwise been “ruined.”

I wish I could say it was all thanks to me, but the honest truth is that, as scary as all of this can seem, the legal system itself is not designed to destroy anyone’s life over a DUI.  Sure, there is punishment and there are sanctions; the idea is to make it hurt enough so that you won’t let it happen again.  For the most part, that works, at least for my typical client, who is a professional with a lot to lose.  Often enough, a client will present to me with concerns about his or her occupational or professional licensure (everyone presents with concerns about his or driver’s license).  These are all manageable issues, and I mean manageable in the sense that, if handled properly, there will be no interruption or suspension of one’s ability to keep his or her job, or practice in a licensed field.  Still, I understand that there is a kind of persisting mortification that a person experiences after being released from his or her overnight in jail, and the point I want to make here is that while such feelings are normal, they are also, fortunately, misplaced.  The worst is already over.

And therein, really, lies the mystery and the truth.  While a DUI can be a threat to your future, most of the worst consequences aren’t even on the menu in a 1^st offense case.  Proper and timely defensive action can protect you from most of the other potential fallout, as well.  The mystery here is the sense of unknown surrounding what will happen – “Am I going to go to jail?” – (no), while the truth is that bundle other consequences that you are at a very real risk to experience.  This is where all that “proper and timely defensive action” comes into play.  And to be clear, “timely” does NOT mean hurry up and hire a lawyer.  On the contrary, you should take your time and get to know the lawyers you’re considering by reading their articles and websites.  There is NEVER a reason to hurry up and hire a lawyer, and the only reason any lawyer would suggest you “act now” or “call today” is so that you won’t continue to look around, explore your options, and find someone else.  Believe me, there is simply no good reason to ever NOT put in the time to really do your homework when it comes to hiring a lawyer.