Articles Posted in DUI

As Michigan criminal and DUI lawyers, my team and I deal with both misdemeanor and felony charges every day. Often enough, we’ll be asked by a client to explain the real difference between the 2 kinds of offenses. This happens a lot when the charge my client is facing is one that can be brought as either a felony or a misdemeanor, like DUI’s, embezzlement, indecent exposure offenses, as well as certain drug crimes. In this 2-part article, I will examine and provide an overview of what differentiates a felony from a misdemeanor charge.

download-1-300x126The one thing that most people know right out of the gate is that a felony is more serious than a misdemeanor. Few things in the law are absolute, but the idea that facing a misdemeanor is always “better” than facing a felony is one of them. Of course, the flip side is that facing a felony is always “worse,” and usually more expensive.

In Michigan, the biggest difference between a felony and a misdemeanor is the maximum amount of time a person can be incarcerated. By law, a person cannot be locked up longer than 1 year for a misdemeanor. To be sure, a person can be convicted of a felony and not be required to serve any time at all, or, he or she can be sentenced to less than a year in jail, but in no case can a misdemeanor conviction result in a sentence of greater than one year in the county jail.

In my role as a Michigan DUI lawyer, my team and I are in court all of the time handling OWI charges and actually making things better for our clients. In this short article, I want to talk about money, and why you shouldn’t focus too much on it during your DUI case. To be clear, this is not an article about attorneys fees, but rather the overall cost of a DUI. The bottom line is that if you’re facing a drunk driving charge right now, you’re already on the hook, and there are very few things you can control that will affect how much money you’re going to have to fork over.

How-Much-2-284x300Ironically, one of the few costs you can manage is how much you spend on a lawyer. The best thing I can say about this is that you’ll never get what you don’t pay for. At the end of almost every blog article I’ve published, I tell the reader to be a good consumer, do his or her homework, read around, and then check around. I say that all the time because it’s solid advice and you should never do less than what you would do when buying a new microwave, much less spending several thousand on a lawyer. You learn things as you gather information. One of the most important suggestions I can make, though, is to gather real information. As much as you’ll never get what you don’t pay for, it’s every bit as easy to get sucked into paying too much for a lawyer, as well. Just keep that in mind as you look around.

At any given time, there is some ad campaign running here, in the Metro-Detroit area of Oakland, Macomb and Wayne Counties, warning people not to drive buzzed or drunk. These ads, which I hear on the radio and see on billboards around town, usually note that a DUI will cost you about $10,000 in fines, costs, legal fees, increased insurance and related expenses. I’ve done the math in previous articles, and, to my surprise, that’s about right. Let’s explore the worst 10 grand you’ll ever spend a bit further…

One of the most common offenses we handle through our office, as Michigan DUI lawyers, is an OWI 2nd offense. A charge is a “2nd offense” when the arrest for it is made within 7 years of the date of a previous conviction for a DUI. In other words, time isn’t measured from arrest to arrest, or conviction to conviction, but rather from the date of the conviction for the prior offense to the date of arrest for the current charge. In this article, I want to look at the similarity of how 2nd offense DUI cases are treated here, in the Tri-County (Oakland, Macomb or Wayne) area.

around-hereIn Metro-Detroit, 2nd offense drunk driving cases are not like 1st offense or 3rd offense charges. I mean this beyond the mere numbers 1st, 2nd, and 3rd. No matter how you cut it, 2nd offense cases are treated almost uniformly across the local region. Here’s what I mean: the way a 1st offense case is handled, and ultimately worked out, can be VERY different from court to court, so that a person facing his or her first DUI in Rochester or Troy will have a much different experience than another whose case is in Shelby Township, or New Baltimore. Those experiences, in turn will be different still from someone with a 1st offense case in Plymouth/Canton or Woodhaven. In 1st offense cases, location essentially rules.

And it rules in 3rd offense cases, as well, where it’s the particular county that matters most. Oakland, Macomb, and Wayne all have their own ways of doing things. Thus, a felony DUI in any one of them will proceed very differently than in either of the others. This is not to say anything like 2nd offense cases “are all the same,” but rather that the way they are approached by prosecutors and Judges is far more uniform than either 1st and 3rd offense cases. Therefore, as a general proposition, it’s fair to say that 2nd offense cases are often handled similarly, no matter where they’re brought, at least here, in the Greater-Detroit area. Unlike in 1st offense cases, the actual effect of state law is huge, and really overshadows everything that will happen to a person. Let me explain…

In this article, I want to zero in on that feeling – that special moment – when a person caught up in a DUI (or really any other legal mess) just “knows” his or her relationship to alcohol has become troubled, or at least is no longer able to deny to themselves that their drinking is causing problems. In that context, one of the best observations I’ve ever heard is that “anything that causes a problem IS a problem.” This kind of dovetails with a well-known AA slogan: “I didn’t get in trouble every time I drank, but every time I got in trouble, I had been drinking.” If you’re facing an OWI, or some other kind of criminal charge or problem (like a probation violation for alcohol), and you’re wondering if your drinking might be part of the reason, the answer is almost certainly “yes.”

Alcoholism-Who-Does-It-Hurt-How-Does-It-Affect-Loved-Ones-300x272You haven’t spent much time wondering if something else is the problem, have you? Did it ever cross your mind that you’re sitting in the back of a cop car because you eat too much pizza, or work out too often, or watch more TV than you should? The point I’m driving at is that once you get any kind of nagging feeling that something’s up with your drinking, it almost always is. The simple truth is that alcohol screws more lives up than you could ever imagine. I see it every single day. If you could do my job for any length of time, you would have a front row seat to watch people going out and getting in trouble again and again, all because of drinking.

It’s often said that “the definition of insanity is doing the same thing over and over again, and expecting a different result.” When it comes to racking up DUI’s or other criminal charges after drinking, people frequently live in a state of denial, while everyone around them sees their use of alcohol as the real problem. Whatever else, there has probably NEVER been an occasion, in the history of the world, where someone has had that sinking feeling that their drinking has become a problem and been wrong about it. So how do we deal with this?

You already know that a 3rd offense DUI is serious, so there’s little point in going on and on about that. Chances are, however, that if you’re facing a 3rd offense OWI, even though it is a felony, it isn’t nearly as bad as you may fear, especially here, in the Tri-County area. If there’s one thing I hate, both as a lawyer and as a consumer myself, it’s fear-based marketing tactics, and I want this article to stand in contrast to the general practice of trying to scare the hell out of you. Instead, I want to look at 2 important factors that, more than just about anything else, will influence what happens: location, and BAC results.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/08/General-Tri-County-1-inch-1.2.pngLet’s begin with the obvious: a lawyer should carefully examine everything to see if there is some way to beat the case; my team and I certainly will. In my office, for example, it’s standard practice to obtain the police car dash-cam video in every DUI case that comes in. While you certainly won’t find anything wrong with the evidence unless you look for it, the simple truth is that the police usually don’t screw things up catastrophically, anyway. Thus, when the evidence is strong enough to withstand a legal challenge, we negotiate a plea bargain that reduces a 3rd offense felony down to a 2nd offense misdemeanor, or at least work out a more lenient sentence agreement that shines like a bright light at the end of a dark tunnel.

I want to be clear that while there are geographical and practical considerations to what and how things get done, even in what might seem the most clear-cut, true 3rd offense drunk driving cases, typical sentences in Oakland, Macomb or Wayne County are measured in days, not months, and certainly not in years. To clarify, a “true” 3rd offense means a person only has 2 prior DUI convictions in his or her lifetime. Since there is no higher OWI charge than “3rd offense” in Michigan, even a person with 12 prior drunk driving convictions can only be charged as a 3rd offender if he or she is arrested for number 13.

When you’re facing a criminal or DUI charge, it’s best to have a lawyer who is familiar with the court where your case is pending and the Judge presiding over it. Because the concept of “local” can differ by location, I want to clarify the idea of hiring a “local” lawyer. In the Metro-Detroit region, “local” has a very different meaning than in less populated parts of Michigan, and generally includes lawyers from anywhere within the Tri-County area. In other parts of the state, “local” can mean just the county where the case is pending, or even a specific part of it. In this short article, I want to examine what “local” means when it comes to hiring a lawyer for something like a DUI, suspended or revoked license case, or a criminal charge here, in the Greater-Detroit area.

LocalInsider-hero-300x256For anyone with a case in Oakland, Macomb or Wayne County, a “local” lawyer is not limited merely to one whose office is in the same city or county where the charge has been brought. Although that definition is overly narrow, it’s worse to have no concept of “local” when it comes to hiring a lawyer. I am, often enough, contacted by people from distant counties who want to hire me, and while that’s flattering, I have to explain that I keep it “local” by limiting my criminal and DUI practice to the various district and circuit courts of Oakland, Macomb and Wayne Counties (this is in stark contrast to my driver’s license restoration practice, which is statewide). Because of the geographic limitations on where I travel for court, I have no experience with how things are done elsewhere. As good as some attorney may be, one of the worst thing a person can do is to pay for him or her to make a “special trip” to some court where he or she does not practice regularly.

This isn’t complicated. To be perfectly blunt about it, like most things, it all comes back to money. As the old saying goes, if you want to know why something is the way it is, “follow the money.” In my case, I’m fortunate to be busy enough to not have to travel to courthouses all around the state. Some lawyers don’t have that option, and have to take cases wherever they can. As a client, you’re far better served by a lawyer who knows how the Judge assigned to your case does things. Every Judge is different, and what works with one may not fly at all with another. You should hire a lawyer who already knows all this stuff, and who uses his or her experience for your advantage.

In part 3 of this 4-part article, we focused in on the PSI (pre-sentence investigation) phase of a Michigan OWI case and the legally required alcohol assessment test that’s a part of that. The whole reason for the PSI is for the probation department to generate a written report and sentencing recommendation that is sent to the Judge to be used in deciding what to do to you. Here, in part 4 we’ll see how this all comes together at the last stage of the court process – the sentencing. This is when you finally stand in front of the Judge to find out what’s going to happen to you. As I noted before, most of what will be handed down by the Judge comes directly from the probation department’s recommendation. By law, when you show up for sentencing, you and your lawyer are required to read the probation department’s report and recommendation. Later, when the Judge calls your case, he or she will ask if you and your lawyer have read it over, if you have any corrections to make to it (this applies only to the facts stated in the report, like your name, date of birth, prior record and such, and NOT to the recommendation itself) and then, what your lawyer and you have to say regarding the recommendation part of it.

privacy-is-an-illusion-and-youre-all-losers-cryptocow-infosecurity-2013-24-638-300x273Judges are all people, and just like everyone else, every Judge in every court is different. No matter how well-spoken a lawyer may be, knowing the idiosyncrasies and inclinations of your particular Judge is a starting point to knowing what to say, and, equally important, what not to say, at sentencing. Every professional athlete, for example, studies his or her opposition. In football, each team watches film of the other team; same with any fighting sport, like boxing or MMA. If I’m representing a 2nd time DUI offender in a jurisdiction without a sobriety court and who I’d like to transfer into a different jurisdiction’s sobriety court program, I had better know if his or her Judge will allow that. There are some Judges who will not transfer a case, no matter what, so not only is asking for that a total waste of time as a sentencing strategy, but then you have to ask, what has a lawyer done to help the client in a case that’s not going anywhere? That’s like bringing chopsticks to a soup dinner.

This may sound harsh, but it’s true: sentencing is where your lawyer either shines, or not. When you’re standing in front of the Judge who is going to decide what punishment and consequences you receive, you had better have spent your money on a lawyer who is exceptionally persuasive. The very LAST thing you need is some attorney who is indistinguishable from the larger herd of lawyers that just drones on about the same old stuff, like your age, job, and other generic blabber about how you regret this incident, want to move past it, and get on with your life. Instead, you need a lawyer who engages the Judge, captures his or her attention, and who can explain, in short order, things like who you are as a person and how that figures into something like this never happening again. In short, you need a lawyer with charisma to spare.

In part 2 of this article, we began our examination of the court process in DUI cases, beginning with the arraignment and pre-trial.  Here, in part 3 of this article, we’ll continue our examination of the court process, starting with the legally required alcohol assessment test.  By law, any person who pleads guilty to or is convicted of an alcohol-related traffic offense (OWI) cannot be sentenced by the Judge until he or she undergoes a legally required alcohol assessment, sometimes called a “screening.”  The actual assessment is a written set of questions about your alcohol and substance use history.  Your answers to them are “scored” using a scoring key, and then compared to a scoring chart to determine whether you have, or are considered at risk to develop a drinking problem.

Nexter-300x150After completing the alcohol assessment, you will then go through an interview with a probation officer (PO).  The end result of all this is a written sentencing recommendation drafted by the probation officer that must be sent to the Judge to be used when you stand before him or her for sentencing.  This recommendation lists specific things that the probation department believes you should be ordered to do (and not be permitted to do) as a result of your charge, including counseling and/or treatment.

Whatever else you read here, or anywhere else, you can take this to the bank: every Judge, in every Michigan court, follows this recommendation very closely.  There is NEVER a case where a Judge makes any big, wholesale deviations from his or her probation department’s recommendation.  In fact, it’s far more accurate to consider the sentencing recommendation a “blueprint” for what’s going to happen to you than anything else.  In other words, a good recommendation equals a good sentence, and a better recommendation will result in a better sentence.

In part 1 of this article, we began looking at the Michigan DUI process – specifically the police part of that process – starting out from your first contact with a police officer, the traffic stop and arrest, all the way through your release from jail thereafter.  Here, in part 2, we’ll begin looking at the beginning of the court process in DUI cases.  The first legal step in the court setting is called an arraignment.  In many DUI cases, this whole step (and, therefore, the need to show up in court for it) can be waived by your lawyer, although some courts, like Detroit, Rochester Hills and St. Clair Shores usually don’t allow that.  Technically, an arraignment is a court proceeding held before a Judge or Magistrate where a person is formally advised of his or her constitutional and procedural rights, the specific charge or charges being brought against them, and the maximum legal penalties for each.  A person is then asked to enter a plea.  Although the subject of arraignments can get very deep, what matters most here is that if you do have to go to court to be arraigned, you should ALWAYS, and I mean ALWAYS  plead “not guilty.”  To be clear, this is a procedural move, and  has nothing to do with whether or not you are actually guilty or not.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/08/Now-What-1.2.jpgIn the suburban courts that don’t allow it, the main reason an arraignment can’t be waived is because the court wants to quickly set bond conditions, meaning things you will be required to do, and others you cannot do, while your case is pending.  This isn’t as bad as it sounds, so hold on before you start sweating.  Once you’re released from jail, you’re out.  If you posted any money, then that will almost always be the amount of the bond set by the court, so it’s not like you’re going to be asked for more.  Despite that, however, we always tell anyone to take $500 with them if they must go to court for an arraignment, especially if they didn’t have to pay anything when they were first released from jail.

Bond conditions are rules you have to follow while your case is going on.  They include not leaving the state without the court’s permission, not getting into any more legal trouble, and, in every OWI case, not consuming any alcohol or using any drugs.  To make sure a person complies with the “no drinking” and “no drugs” conditions, all courts will order some kind of alcohol and/or drug testing.  This can be either breath (you’ll hear the term, “PBT”) or urine testing, or a combination of them both.  Depending on various factors, including where your DUI is pending, that testing can be more or less frequent.  Even if your arraignment is waived and you don’t have to go to court for it, bond conditions, including and especially the “no alcohol or drugs” provision will be ordered by the Judge the first time you appear before him or her.

This article will answer the kind of questions that are often “googled” after a person has been released from jail following a OWI arrest, and that go something like “arrested for DUI now what?”  We’ll look at how a DUI case unfolds, from first police contact, through your arrest, and all the way to the end of the court process.  As a Michigan DUI lawyer, I concentrate my practice in Oakland, Macomb and Wayne Counties, so our examination will focus on how things play out here, in the Tri-County, Metro-Detroit area.  Rather than 1 or 2 long installments, I have chosen to break this article into 4 much shorter pieces for easier and quicker reading.

11873522964_9cb8eb5a44_b-300x295DUI cases proceed through a certain set of fixed steps.  In order to keep this article interesting, we’ll go over some of them more briefly than others where it’s logical to do so.  For the reader interested in the gritty details of every stage, refer to the DUI section of this blog, where I have posted an in-depth examination of just about every facet of the DUI process within the more than 360 articles I have written, making it an almost unlimited resource for anyone interested in learning more.  Thus, if a reader wants to dig deeper into any specific part of the DUI process, he or she can search through my articles and find exactly what they’re looking for.  This installment is more of an overview of the process and how it plays out.

A DUI case begins well before your actual arrest, and sometimes, even prior to your initial police contact.  Most of the time, things start by getting get pulled over, but there are all kinds of other ways people wind up talking to a police officer.  In some cases, the police respond to an accident, while in other cases, the police find someone just sitting in their car somewhere.  Under Michigan law, just being in the driver’s seat with the keys in the ignition is enough to charge someone with DUI, as our Supreme Court has ruled that doing so is good enough to be considered “operating” a vehicle.  Although this literally punishes someone responsible enough to pull over and “sleep it off,” it doesn’t matter what you or I think of such reasoning, because, like it or not, that’s just the way it is.  The larger point here, though, is that no matter how it occurs, a DUI case always starts at or before the first police contact.