Articles Posted in DUI 1st Offense

For successful people, a DUI charge carries some additional considerations beyond just staying out of jail. I have made clear a million times over, within many of my DUI articles and on my website, as well, that with only one possible exception in the Greater-Detroit area, you are simply NOT going to jail in a 1st offense DUI, so any efforts directed at avoiding what isn’t going to happen anyway are both misdirected and wasted. For some individuals, being charged with OWI (Operating While Intoxicated) doesn’t really pose a threat to their livelihood or reputation, while for others (like teachers, nurses, physicians, engineers, etc.), the idea of anyone so much as finding out about it is a nightmare. Rather than play into those fears, however, I believe that an import part of my job as a DUI lawyer is to make clear that most of them are unfounded, and help the client deal with those consequences that will or are likely to occur.

busy-846x414-300x257First, there is the issue of finding a lawyer. No, this is not going to be a “call me” piece, and I hope that someone reading this anywhere can apply what we cover in his or her local area. And that, of course, segues right into on of the more important lessons here: hire local. My DUI practice, for example, is limited to the courts in Oakland, Wayne and Macomb (as well as a few surrounding) Counties. Wherever you live, don’t drag in some lawyer from across the state, or from too far away, who is not a regular in the court where your DUI case is pending. No matter how you cut it, you are either going to pay for a lawyer’s experience, or else you wind up paying his or her tuition.

I don’t want this to seem like an attack on lawyers, but the reader has no doubt already discovered that there are endless firms and websites, all pretty much with the same messages about having experience, being tough and aggressive, offering free consultations, and urging you to  “call now.” Most of these operations are trying to scream why you should hire them louder than everyone else. As you look for a lawyer, you should see past that, and instead be seeking real and useful information. As you do that, there will inevitably be a few practices that stand above the rest in terms of actually providing it. Accordingly, you should be able to easily explain why you’re thinking about hiring them beyond the fact that they are telling you to do so. If you can’t articulate why you are interested in some particular lawyer or firm, then why are you considering them? In fact, amongst the best lawyers, the question really becomes “why should we take your case?” rather than why you should hire them, because such practices have clearly defined who they can most help and aren’t just waiting to take anyone who can pay their fee. As you look for a lawyer, you should keep that in the back of your mind. In my office, for example, we use our initial telephone contact with a potential client as a two-way screening opportunity. While some lawyers have no real choice other than to accept any offer of engagement that presents itself, the more capable sort will steer clear of potential clients who raise any kind of red flag, like the “know-it-all,” the angry person, or someone who already has a lawyer, among others.

Being a Michigan DUI lawyer means that a primary focus of my practice is handling DUI cases (the other part is driver’s license restoration appeals for those whose licenses have been revoked for multiple DUI convictions, so they’re quite related). I differentiate myself even further by noting that I geographically limit my DUI practice to the Tri-County (Wayne, Oakland and Macomb County), Metro-Detroit area. Plenty of other lawyers claim to handle OWI cases as part of a larger practice. Whether or not that provides enough courtroom experience to be considered any kind of “DUI lawyer” is questionable, at best. In this article, I want to address those situations where a non-lawyer starts digging around on the internet and starts thinking of him or herself as some kind of self-taught, quasi-expert. Someone may be great on Google, but that doesn’t make them a lawyer. My motivation for this article comes from any number of emails that I receive (and I’m sure plenty of other lawyers get them, as well) from people who learn a little about drunk driving laws and the DUI process, and then want to play lawyer, or co-counsel.

Docs-office-246x300To be brutally honest about it, those kinds of people are a royal pain in the a$$, and the only lawyers who deal with them are those that have to. In other words, confident and successful DUI lawyers don’t need to bother with them. A physician friend of mine once posted a meme of a sign hanging on a doctor’s office door that read: “Warning!!! Patient will be charged EXTRA for annoying the doctor with a self-diagnosis gotten off the internet.” This really is a variation of the idea that “a little knowledge is a dangerous thing.” There is already a lot of work that goes into successfully handling a DUI case without a lawyer having to correct what a client half-understands. To be sure, I’m the first one to suggest a person “read around,” and there are some basic things a person should learn and know about DUI cases, many of which can be found online. Moreover, it is a good thing if a person reads and learns enough to have intelligent questions, but that’s a whole different thing than when someone starts looking for a lawyer to implement his or her own amateur, self-made legal strategy.

Can you imagine going to a doctor’s office and telling the physician what to prescribe because you’ve done the research? Admittedly, I KNOW when I am in the early stages of having a sinus/upper respiratory infection (I’ve gone through this my whole life) and I also know that for the last 30 years or so, I have had success with a “Z-Pak” (Azithromycin), so in those situations I may have to tell a newer doctor about my history and that the Z-Pak has always worked for me. Still when I do go to the doctor’s office, I am often required to give a throat culture and wait for it to be checked to rule out strep, but I accept that as just part of the deal. Beyond that, however, I’m not about to play doctor, and, as a lawyer, have no interest in wasting my time with a non-lawyer who wants to play lawyer.

In my capacity as an Oakland County DUI lawyer, I am in a district court here somewhere almost every day of the week handling OWI charges. As a resident of Oakland County, I appreciate the efficiency that defines our district courts from Ferndale at the south end of the county to Clarkston at the North, and from Novi on the west side to Madison Heights on the east, and the places in-between, including Troy, Rochester, Royal Oak, Bloomfield Hills, Southfield, Farmington Hills and everywhere else. Because my DUI practice is concentrated in and limited to the Metro-Detroit area, I know how things work in these the local courts. I don’t try to be all things to all people, and therefore don’t take OWI cases outside of Greater-Detroit, Tri-County area, meaning I stick to Oakland, Wayne, and Macomb Counties. Oakland County is certainly the most unique of this bunch.

1391930_731769816839004_2111805347_n-300x300It won’t take long to hear that Oakland County is the toughest. Of the 3 local counties, that’s often (although not always) true. However, there are many rural counties in Michigan that have plenty of open jail spaces, and Judges that aren’t afraid to fill them. By contrast, Oakland County, the second most populous in the state, has a jail that is almost always bordering on legally overcrowded, so it limited space has to be somewhat “managed” for people like non-violent DUI offenders. In other words, even tough Oakland is generally “tougher” than either Wayne or Macomb Counties, there are plenty of other places in the state where a DUI charge carries far more risk of jail. As the saying goes, everything is relative.

Interestingly, and perhaps somewhat ironically, fines and costs in Oakland County are about average, and not, in any way, near the high end of the spectrum. A DUI in Oakland County will often not cost nearly as much as one in either Wayne or Macomb Counties.

As much as I hate having to increase my fees, and like the idea of writing about it even less, as the lawyer I am, I believe that not being clear and upfront about costs is a huge red flag. Almost since I launched my first website over 10 years ago, I have always published various fee schedules specifying what I charge in driver’s license restoration and clearance appeals, DUI cases, and criminal matters. A published fee list always was and still is unusual amongst lawyers, to the point that I’m not aware of ANYONE else who does it. And while I understand how most lawyers would rather establish a rapport with a potential client before talking money, I have always been suspicious of any person or operation that avoids or otherwise skirts around the subject of cost. Given that I’m the only lawyer I know who actually lists fees, it’s obvious that I’m in the minority here, but I have always lived by the golden rule – to treat others as you would wish to be treated – and this is one way I do that. I will get to the actual numbers later in this article, but to be clear, as of January 1, 2018, my fees in driver’s license restoration cases will be going up, as will a few others. That said, none of my fees will go up very much, but I want to give some advance warning AND protect myself so that if someone finds an old price referenced somewhere, I can rely upon this article as notice.

Picture1Undoubtedly, one huge benefit I derive from publishing my fees is that I don’t have to bother with “tire kickers” and time wasters who either cannot afford the kind of service my office provides or who are otherwise focused on low cost. Price matters, of course, but it should not be the primary consideration in certain decisions (particularly medical and legal issues), at least for those who can afford to not make it so. For example (and I’m not out to insult anyone), I have been a Verizon customer for many many years. Once, a long time ago, I got sucked into using Nextel (they’ve long since folded) based upon the appeal that I could save a lot of money on my cell phone bill. Things are a lot different today, with unlimited calling plans, but back then, cell phones could cost as much as 30 cents per minute, so any break was a good one. To manage costs, I left Verizon (I think it was called something different then), got my new Nextel phone, and tried to convince myself that the money I was saving was worth all the dropped calls and inferior service I had accepted in return. The last straw came one day, while in the back of a Home Depot store, where I couldn’t get service with my Nextel phone, I borrowed my wife’s, which was either a Verizon phone, or it’s predecessor, and made a call that could not be made on mine. This drove home the point that you often have to pay more for better quality, but that, in certain situations, it’s just worth it.

In my capacity, I don’t compete, nor, frankly, do I need to compete, with any other lawyers based on price. In driver’s license restoration and clearance appeals, I guarantee to win every case I take. In addition, you will never meet another driver’s license restoration lawyer with anywhere near the passion I have for license appeals. Take a look around this blog; I have written and published over 400 license restoration articles to date. That’s more articles than the number of license cases all but the fewest lawyers will ever take in their entire careers (I handle about 200 license restoration and clearance appeals per year). DUI cases make up the other major part of my practice (I have put up more than 320 DUI articles), meaning that alcohol is really at the center of almost everything I do. In that sense, I’m kind of like a Q-tip, with DUI cases on one side, license restorations for multiple DUI’s on the other, and alcohol as the stick that connects them both. To make sure I’m the very best at what I do, I went back to the University classroom and completed a post-graduate program of addiction studies. I use this clinical knowledge every single day to produce better outcomes for my DUI clients and to help win back the licenses for my license restatement clients. That’s not the kind of commitment and investment you’ll get from any bargain lawyer.

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.

yellow-red-green-black-pushpins-in-a-map-300x275As 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…

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?

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.

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?

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.