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Articles Posted in DUI Location

As a DUI Lawyer who handles Drunk Driving cases exclusively in the Courts of Macomb, Oakland and Wayne Counties, I have extensive experience in a limited number of Courts. This is an asset, in the same way that a Cardiac Surgeon has extensive surgical experience on a limited part of the human body. It is because of that repeat experience in the same Courts that I can explain, with a high degree of accuracy, what is going to happen in any given case.

Inherent in this is the fact that every Court is different. But there’s more than just that; things can play out very differently in the same Court depending on to which Judge a DUI case is assigned . In the 47th District Court in Farmington Hills, for example, Judge Marla Parker runs a Sobriety Court, while her counterpart, Judge James Brady, does not. Judge Brady will not transfer cases to Judge Parker. This means if you have a 2nd Offense DUI in the 47th District Court, the ability to get into Sobriety Court and keep your Driver’s License depends entirely on the Judge to whom your case is assigned.

location 1.2.jpgThis is a bit of an extreme example, but it serves to underscore the larger point that where a DUI case is pending is one of the most important factors affecting it. In fact, with the exception of legal issues related to the admissibility of the evidence, the location of a DUI is the single most determinant of how things will play out. To that end, unless a DUI charge is “knocked out” somehow, what will happen to you depends in very large part on where your charge is brought.

I’m sure these local differences are the same all over the state, but my experience is limited to the Tri-County area of Metro-Detroit. If you have a DUI pending in any Macomb County, Oakland County or Wayne County Court, then you probably already know, or will soon enough, at least, that there are some rather stark differences between them. Once a DUI Arrest has taken place, it’s obviously too late to do anything about that. Besides, no one ever plans on getting a DUI. It’s not like someone is thinking about going out to pick up a Drunk Driving charge in one County, but not in another. In a very real way, a DUI charge is always an accident of geography.

That said, if you’re going to have this kind of “accident”, you’ll fare much better if it’s in a city in Macomb or Wayne County. If you check around even the slightest bit, you’ll find that Oakland County is just much “tougher,” in multiple ways, than either Macomb or Wayne County in DUI cases. Yet even within Oakland, or any given County, for that matter, there are vast differences from Court to Court.

Macomb County Courts take a far more “real world” view of DUI cases. While no one would argue that anyplace is getting easier on DUI cases, the fact, and I do mean FACT, is that for all the increased penalties and money sanctions that have been poured over the whole DUI landscape over the past 2 decades, there has been no, as in ZERO appreciable decrease in DUI’s. Additional License penalties and more expensive fees, fines and costs don’t have the effect of preventing or deterring DUI’s, they just make life more difficult for those people who make a mistake and get caught driving after having had a few too many.
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If you are facing a DUI in almost any Oakland County District Court, or a growing number of Macomb or Wayne County District Courts, there is a good chance that, as a condition of your release from Jail after your Arrest, you are required to submit to some form of alcohol testing. No one likes this, as it places a huge burden on the person having to test. It is costly, and always inconvenient. Worse yet, the results are sometimes wrong, tossing innocent people into hot water for “false positives.” By the same token, the presumption that a missed test would have produced a positive result can be a nightmare for those who have a legitimate excuse for not being able to make it to a scheduled test.

While it has always been my intent to publish blog articles that are more factual and informative than opinionated, I can feel my blood pressure rising as I begin to broach this topic, and sense that my rather strong feelings about alcohol testing in general, and Pre-Trial alcohol testing in particular, will spill out into this article. I hope the reader will agree with my position, although I doubt that anyone who is under Orders to test is happy about it in the first place, and I might just be “preaching to the choir.”

alcohol-test 1.3.jpgI began Practicing Law in 1990. Back then, although DUI’s were already considered serious, the societal shift against Drunk Driving was just getting underway, and the impact of things like Mothers Against Drunk Driving (MADD) was just beginning. In the early 90’s, a person dealing with the fallout of a 1st Offense DUI would most likely have been Sentenced by the Judge to simply NOT consume ANY alcohol and drive a motor vehicle while on Probation. In other words, the terms of Probation back then allowed a person to have a glass of wine with dinner; they just could not drink and drive. There was no such thing as any kind of “alcohol-testing” until after a person was put on Probation, and even then it was only done on an infrequent and random basis.

Everything changes, though. Soon enough, Judges began Ordering that a person not drink at all while on Probation. To back that up, they’d order “random” PBT’s (Portable Breath Tests). Thus, a person on Probation could be called at any time and required to come to the Probation Office and provide a breath sample. But the momentum of the MADD and other anti-alcohol advocates had just begun. (In fact, MADD has transitioned so far away from its original mission that its founder resigned, noting that the group had adopted a message of abstinence and temperance, and had gone way above and beyond just preventing people from driving drunk). The Court system has followed MADD, however, and seems intent on doing far more than just stopping drunk driving. While it makes sense that you can limit drunk driving by simple preventing people from drinking, you could also reduce theft crimes by cutting off everyone’s hands at birth…

Then, one day in the not too distant past, some Judge got the idea that it wasn’t good enough to just require DUI Driver’s to not drink while on Probation. By some jump of logic, an idea was born that things would be better if anyone Arrested for DUI was not only forbidden from drinking anything at all, but that they should have to prove their compliance with that requirement by testing regularly. From this questionable logic we now have an entire testing industry in place to ensure compliance, and the list of Courts that DON’T require such testing is shrinking faster than the Lance Armstrong fan club.

That’s where we find ourselves today. I’ll skip over the arguments about rights and freedoms and Judicial activism; they all have some merit. There is one theme, however, that comes up again and again whenever the subject of alcohol testing as a condition of Bond is raised, and that’s the concept of “innocent until proven guilty.” Unfortunately, this notion has to be explained away as legally unfounded, especially when it comes to setting conditions of release after Arrest. This means that there is no actual presumption of innocence, at least as most people think they know it. As we’ll see, this means that the alcohol testing as a condition of release is on solid legal ground, however much we don’t like it.
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If you’re facing a DUI charge in any of the District Courts of Oakland County (Berkley, Bloomfield Hills, Clarkston, Farmington Hills, Ferndale, Hazel Park, Madison Heights, Novi, Oak Park, Plymouth (covering Northville), Rochester, Royal Oak, Southfield, Troy or Pontiac), or are facing a 3rd Offense Felony DUI charge in Oakland County, you need a DUI Lawyer who can make things better for you. That begins with hiring a Lawyer who is thoroughly familiar with the Court where your case is pending. “Thoroughly,” in that sense, means being a “regular” there. It means knowing how things work in that Court based on accumulated experience.

I’ve been handling DUI cases for over 22 years. In the last decade or so, I’ve really concentrated my DUI Practice, meaning I have restricted the Courts in which I practice, to Macomb, Oakland and Wayne Counties. This kind of “specialization” allows me to explain to my Client what will happen and what won’t happen in their case. I know how each Court differs from another, and how the various Judges are alike, as well as how they are different. That translates to knowing exactly how to do things, and, by the same token, knowing what not to do. Whatever else, pitching an argument to a Judge who has a standing position against what you’re your requesting is not only a losing proposition, it has the potential to make things worse. On the other hand, NOT asking a Judge for a break that he or she would actually consider is a total waste – and a painful amateur mistake.

Oakland 1.2.pngDUI cases
are, more than anything else, accidents of geography. A person can be pulled over in front of their own house, or hundreds of miles from home. I’ve always had a few cases going where my Client has gotten lost, and winds up being pulled over in a jurisdiction totally out of the way from where they were drinking, and from where they live. One wrong turn on I-696 and a person can spend 20 minutes driving the wrong way.

However it happens, each and every week, a whole lot of people get busted for a DUI in some city in Oakland County. Beyond just looking for a “DUI Lawyer,” it’s a good idea to look for a Lawyer from the Tri-County area, and one who consistently and regularly practices in the Court in which your case will be heard. To put it another way, it’s probably not a good idea for your Lawyer to be meeting the Judge for the first time as he or she walks in on your case.

The Courts of Oakland County are very different from those in Macomb and Wayne Counties, especially when it comes to charges of OWI (Operation While Intoxicated) and High BAC, the actual names for what we commonly call “DUI.” In fact, if you’re facing a DUI and you haven’t already heard or read that Oakland County is “tougher,” then you haven’t checked around very much. What really, then, does “tougher” mean?

Beyond just being noticeably less forgiving and lenient in DUI cases, Oakland County has long led the way in the implementation of technological advances, and has long been more “progressive” in its approach to DUI cases. “Progressive,” in that sense means “rehabilitative.” Oakland County Courts were regularly requiring breath or urine testing as a condition of Bond (or release from Jail) in DUI cases long before many of the Courts in Macomb and Wayne Counties had even tried it.
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A 1st Offense DUI in is a very frightening thing to face. For most people, it represents their first (and hopefully only) Arrest. Being taken to Jail, and then released the next day, only to have go retrieve their car, and then try and find a Lawyer, brings with it a rush of unpleasant emotions. There really is no way to make those feelings disappear, but as a Michigan DUI Lawyer, I can certainly help make them better.

For over 22 years, I have helped good people move past this bad situation. I provide a level of services very different than those Lawyers pandering for Clients on a “low bidder” basis. Precisely because I don’t run an assembly-line of high volume, low cost cases, I can take the time to address my Client’s personal and emotional concerns about the Drunk Driving charge they’re facing. As a result, they get things made a lot better than someone going the bargain Lawyer route.

Things will get better 1.2.jpgAnd if there’s a point to this whole article, it’s that things are not as bad as they might at first seem. No matter how bleak and uncertain things may look, a person can almost always get through this rather painlessly. If someone facing their first Offense is carefully and properly guided through the DUI process, and even if everything that can go wrong does go wrong, they can still emerge from it virtually unscathed. This is where I come in; this is my world.

It is my job, in a DUI case, to look for defects in the evidence that can potentially result in a dismissal of the charges. DUI cases don’t dismiss themselves. Statistically speaking, most DUI cases don’t get “knocked out” just because an astute Lawyer goes on the hunt for a problem with the evidence, or how it was gathered. Imagine a person being wheeled into the ER of some hospital with a gunshot wound to their chest, and the Doctor saying to their spouse, “Wow, this is unfortunate; about 85 to 90% of all people with a wound like that don’t survive. Do you really want me to go through all the work of trying to save this person, anyway?”

Of course! No matter how slim the odds, a Doctor or a Lawyer has to do all in his or her power to produce the best outcome possible
Here’s where DUI’s are different: It is true that a Lawyer will not likely find some fatal defect to the extent that a Judge is going to pound the gavel and yell “Case dismissed!” in majority of cases. Yet by conducting a precisely that kind of microscopic inquiry looking for such defects, other, smaller issues can be found that can be used to the Client’s advantage, such as driving a Plea Bargain to a reduced charge, or to setting up a Sentencing agreement for no Jail in a case where some Jail time might really be a possibility.
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I handle DUI cases in all the District Courts of Macomb and Oakland Counties, as well as parts of Wayne County. Almost every day, I meet with someone facing their first DUI, which in the majority of cases means someone facing their first-ever Criminal charge. In addition, many of my DUI Clients are people facing a 2nd Offense, or even a 3rd (Felony) Offense Drunk Driving charge. Their apprehension over what will happen may be a bit more informed, if not different, but no one is ever happy about being charged with a Drunk Driving Offense and wondering what’s going to happen to them.

One thing that all people facing any kind of DWI charge have in common is the emotional strain they feel from the first moment of Police contact. In an earlier article on this very subject, I began examining the emotional impact of a DUI, and numerous times since its publication, a new Client has told me how they identified with it. In this article, I will reexamine that subject from a slightly different perspective. It seems that there is more to this topic than I was able to explore in the previous article, and I think a big part of that emotional stress is related to fear. While fear itself can be a healthy warning mechanism that keeps us safe, excessive or unreasonable fear can wreak havoc on a person’s well being.

Superman2.jpgIn the world of alcohol-related Driving Offenses, fear tends to lose any real value once a person has been pulled over. If fear can provide any benefit in this setting, it would be to prevent a person who’s had a few too many from getting behind the wheel in the first place. Once the keys are in the ignition (it may surprise the reader to learn that, in Michigan, sitting behind the wheel in a car with the keys in the ignition, even thought the car hasn’t been started, has been found by the Courts to be enough exercise of “control” over the car for that person to be charged with DUI), it’s too late. All the fear in the world won’t stop what’s about to happen.

There is probably no unpleasant feeling a person can experience that rivals that “sinking feeling” they get when they see the Police car lights in their rear view mirror after they’ve been out drinking. And if we could just hit the “pause” button at that very instant for just a moment, we’d discover something very important. There is usually a very good reason for that sense of foreboding a person feels. In most cases, the Driver knows he or she is over the limit. It’s not like they get that sinking feeling because they think they’re about to get a speeding Ticket. Even if they rather naively hope they may get through the Police contact without the issue of drinking coming up (like that ever happens…), they know that they’re in a tight spot. Ask anyone at that precise instant if they’d like to volunteer to perform some Field Sobriety Tests or take a Breath Test, and you won’t see any hands raised.

In some people, alcohol impairs judgment in such a way that they think they may be able to sound sober, or talk their around, if not out of, the situation. Some may even think they can do “okay” on any kind of Field Sobriety Test. In an ironic, if not humorous twist of fate, many of these same people, when reviewing the Police car dash cam video, will see themselves after a few too many, and rather humbly say “turn it off. I’ve seen enough.”
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In Part 6 of this series, we reviewed how the Pre-Sentence Investigation (PSI) Report and Recommendation is completed by the Probation Officer, and how the DUI Driver and his or her Lawyer review the Report and Recommendation in Court, before the actual Sentencing, in order to make sure that the information contained in that Report is accurate.

In this seventh and final installment, we will wrap up our series on the Steps in a Detroit-area (meaning Macomb, Oakland and parts of Wayne County) DUI case by looking at the the 8th and final step in any DUI (or other Criminal case, for that matter), where the Lawyer comments on the Sentencing Recommendation to the Judge at the actual Sentencing Hearing. After this step, the Judge pronounces the Sentence, and the person learns their fate…

7three.jpg8. Commenting on the PSI and Recommendation to the Judge at Sentencing.

As I noted in the previous installment, the PSI Report and Recommendation must be reviewed, in Court, on the day of Sentencing, by both the Defendant and his or her Defense Lawyer before the Sentence can be imposed. It must be reviewed for errors, and then returned to the Court Clerk. Once the case is called, the Judge will ask the Lawyer if he or she has reviewed the Report and Recommendation with their Client. The answer must be “yes, Your Honor.” Next, the Judge will ask something like, “are there any additions, corrections or deletions to be made?” Hopefully, the answer to this question will be “no, Your Honor,” but this is the time to update and correct anything about the person or their background that is not accurate.

Once the Report has been accepted as accurate, the Judge will then ask the Lawyer if there is anything he or she would like to say about the Sentencing Recommendation, and on behalf of his or her Client. This is where those skills I talked about (okay, admittedly more like “ranted” about) in the previous section become so important.

Leaving the self-serving personal endorsement made in the previous section behind, this is really where the persuasive speaking skills of the Lawyer count the most. You only get one chance to “make your case” to the Judge, and this is it. What kind of conditions a person will walk out of Court having to satisfy, and, indeed, whether they walk out of the Court at all, is decided right here. It is at this moment that anyone who bargain-hunted for a Lawyer will feel the regrettable sting of “you get what you pay for.” About the worst thing a person can say about the Lawyer they had is “I could have done that myself,” or “My Lawyer didn’t do anything for me; he (or she) just stood there!”
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In part 5 of this series about the steps in a DUI case, we undertook a rather in-depth analysis of the alcohol assessment testing process, including how these tests are scored by the Probation Officer who administers them. We saw that there is an almost endless number of such tests, but that the Courts most often use one of only several, each of which is simply “scored” like a high-school math test, and requires no interpretation beyond charting that score on a grid called a “scoring key.”

In this sixth part, we will continue with a review of steps 6 and 7 of the PSI process:

6V.gif6. Completion of the Sentencing Recommendation by the Probation Officer 7. Reviewing and correcting the PSI and Recommendation

We will cover the 8th and final step (Commenting on the PSI and Recommendation to the Judge at Sentencing), in the seventh and final installment of this series.

In reviewing steps 6 and 7, will see how that alcohol assessment score is used by the Probation Officer in the larger process of creating the Pre-Sentence Investigation (PSI) Report and Sentencing Recommendation that will ultimately find its way into the Judge’s hands.

6. Completion of the Sentencing Recommendation by the Probation Officer

Having gathered and reviewed the person’s background information, conducted a face-to-face interview, and then scored the alcohol assessment test, the next step in the PSI process is now completely in the Probation Officer’s hands – writing the Report and Recommendation that will ultimately be read by the Judge and used in deciding what a DUI Driver’s Sentence will be.

Those readers who have followed this entire series will recall me pointing out, early on, that in a 1st Offense DUI there will be NO JAIL. This means anyone who hires a Lawyer in a 1st Offense DUI for the primary purpose of staying out of Jail is wasting their money; they aren’t going to Jail in the first place. The Sole possible exception applies only to a DUI case pending in the 48th District Court in Bloomfield Hills.  Otherwise, jail is just NOT on the menu.
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In Part 4 of this article about the steps in a Detroit-area DUI, we began our rather detailed inquiry into the various “steps” of the Pre-Sentence Investigation, or PSI process. We covered the first 3 steps:

1. Setting the Probation appointment 2. The background paperwork
3. The actual Probation interview
5.1.jpgHere, in this fifth part, we will cover steps 4 and 5 of the PSI process:

4. Taking the alcohol assessment test
5. Scoring of the alcohol assessment test by the Probation Officer.

This is an intense subject, and these are serious subjects. Given their importance, we will devote this entire installment to these 2 topics. This will be a long piece, but as I often point out, there are no shortcuts to doing things the right way, and that includes studying and explaining them.

In the final 2 installments of this series, we will cover the remaining steps (6 through 8) of he PSI process:

6. Completion of the Sentencing Recommendation by the Probation Officer 7. Reviewing and correcting the PSI and Recommendation
8. Commenting on the PSI and Recommendation to the Judge at Sentencing
Here, we will resume our scrutiny of the steps of the PSI process by picking up with the alcohol assessment test.

4. Taking the alcohol assessment test.

I want to be emphatic about this: THE ALCOHOL ASSESSMENT IS THE MOST IMPORTANT PART OF THE WHOLE DUI AND PSI PROCESS. What happens at this stage has more impact on the kind of Sentence a person gets for a DUI than all the other stuff combined.

In other words, if you do well here, things will be a lot better, meaning more lenient, than if you don’t. And to be clear, these tests are scored numerically. A low score is good, while a higher score spells trouble. Thus, the higher the score, the worse the result. Conversely, the lower the score, the better the result, meaning the less likely a person is to have an alcohol problem, or have the potential to develop one. Therefore, a low score is the ultimate goal when taking an alcohol assessment test.

So how do you get a low score?
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In Part 3 of this series, we undertook a very brief overview of DUI Trials. If the reader detected a theme something like “DUI Trials are very complicated,” then I succeeded in delivering my message. The larger point was simply that no one should go to Trial in a DUI case unless they have a rock-solid likelihood of winning, or at least emerging from it appreciably better off than if they had not.

After a DUI (meaning Criminal) Trial, a person is either found Guilty, or Not Guilty. Occasionally, a case results in a “hung jury,” meaning no verdict was reached, and the Prosecutor must then decide if they want to re-try the case, meaning do it all over again. Hung juries, while not incredibly rare, are rather uncommon; therefore, we won’t waste any of our time discussing that unlikely type of outcome.

Four.1.2.jpgHaving started our discussion at the Arraignment stage in Part 1, through Pre-Trials in Part 2 and Trials in Part 3, we have ended up at the stage where a person facing a DUI (called the “Defendant”) will have either pled Guilty to some kind of charge after a Pre-Trial, or have been found Guilty, or not, after a Trial.

The next “legal” step in any Drunk Driving (or other Criminal) case is the Sentencing. This is where the Judge decides what is going to happen to the Defendant, and Orders things like classes, counseling, breath or urine testing, Probation, and, in really bad cases, like 3rd Offense Felony DUI’s, Jail.

Obviously, there will be no Sentencing if a person has been found “Not Guilty” after a Trial. In that case, a person simply goes home, and the matter is ended.

In every DUI case, however, where there has been a either Plea, Plea-Bargain, or Sentence-Bargain (or a Verdict of Guilt, if there was a Trial), there is a step BEFORE the actual Sentencing: The PSI, or Pre-Sentence Investigation. A PSI is required by Law. We’ll explore it in detail shortly (this subject is rather involved, so we’ll use two installments just to cover it), but before we do that, it is important to understand that the Pre-Sentence Investigation, and the legally required alcohol assessment test that is a part of it, will determine, more than anything else, what actually happens to a person at Sentencing. To put it simply, the PSI and its accompanying recommendation is the blueprint, or script, for what kind of Sentence a person will get.
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In Part 2 of this article, we examined DUI Pre-Trials, and we learned that, more than anything else, a Pre-Trial is a meeting where the Defense Lawyer and the Prosecutor discuss their case, and try to work out some kind of resolution (usually meaning a plea deal) in order to avoid having the case decided at a Trial.

In this 3rd installment, we’ll discuss the components of a DUI Trial. The reader should note that the Library of any Lawyer who makes his or her living in Court usually contains numerous books about Trials, and Trial strategy. Since even the most abbreviated overview of Trials would result in a rather long book, our review will necessarily be rather brief. Accordingly, we will focus on the more important and relevant aspects of a DUI Trial.

Step3.3.jpgTo begin, it is fair to say that a DUI Trial occurs because the Prosecutor and the Defense Attorney are unable to agree upon a resolution. Beyond that rather “legal” description, it typically means that the Prosecutor has offered no kind of “deal,” and the Defense Lawyer believes he or she can either beat the case at Trial, or at least get a better (always meaning less-serious, or severe) verdict than whatever plea offer (or not) is on the table.

In a Criminal Trial, a person’s guilt must be proven “beyond a reasonable doubt.” To put it plainly, at a Trial, the Prosecutor must essentially hit a home run.

If a Trial is held before a jury, then a “Guilty” verdict can only occur if ALL of the jurors (6 in a Misdemeanor case, and 12 in a Felony case) agree that the Defendant is guilty. If even 1 of the jurors does not agree, the jury is considered “hung” and the person will not be found guilty, although they may later be re-tried. If the jury, however, returns a unanimous verdict (meaning all 6 or 12 jurors agree) of either Guilty or Not Guilty, then that is the final decision.

Which brings us to as good a place as any to talk about the end result of a Trial. Everyone knows that a Criminal Trial (and a DUI case is a Criminal case) can result in a verdict of either “Guilty” or “Not Guilty.” Yet there are other outcomes that can occur, and understanding them can have a huge impact on deciding whether or not to have a Trial in the first place. Let’s explore this further…
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