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Articles Posted in DUI

In part 1 of this article, we began an overview of breath test refusals in DUI cases, and the larger subject of chemical tests as well as Michigan’s Implied Consent law. We saw how there are really 2 kinds of tests: a preliminary breath test (PBT) which is administered at the side of the road before an OWI arrest, and then a formal chemical test that comes after arrest. Although a “chemical test” can include either blood, breath or urine, in DUI cases, it’s limited to breath and blood, as urinalysis cannot be used to calculate person’s bodily alcohol content (BAC).

lklhlkI explained that the refusal to submit to a PBT is only a civil infraction, and is very different from the refusal to submit to a chemical test as contemplated by Michigan’s Implied Consent law. If a person refuses a PBT, he or she only faces a fine and a penalty of 6 points on his or her driving record. In the real world, my team and I almost always negotiate the dismissal of a PBT charge as part of the resolution of an OWI charge. Although a person is legally “obligated” to take a PBT test, the failure to do so does NOT carry any potential suspension of his or her driver’s license.

In contrast, we then saw that refusing a breath or blood (i.e., chemical) test after arrest will automatically result in a 1 year suspension of a person’s driver’s license, unless a he or she timely requests and wins a hearing to challenge the refusal for 1 of the 4 specified legal issues before a Michigan Secretary of State hearing officer. We then looked at the how those issues are defined in the law. In this second half, we’ll dig a bet deeper to see what those legal issues really mean and how a person can still get his or her license back even after an Implied Consent refusal.

As Michigan DUI lawyers, we have to deal with breath test refusal issues almost everyday. We field a lot of questions about breath and blood tests, Implied Consent license suspensions, and everything related to a person having refused to provide breath sample when arrested for a DUI. This 2-part article will provide an overview of Michigan’s Implied Consent law, rather than any kind of granular analysis of the subject. Here, our focus will be wide, and cover the broader implications chemical testing and the law in Michigan DUI cases.

Preliminary-Breath-Test-PBT-261x300At its most basic, Michigan law requires any driver arrested for an alcohol-related traffic offense to submit to a chemical test when requested to do so by a law enforcement officer. Technically, a “chemical test” can be conducted on either a breath, blood or urine sample. In DUI cases, urine tests are largely useless, so they’re never really an issue. Although the officer (or trooper or deputy) can choose to request either a breath or blood sample from someone arrested for a DUI, most (but not all) of the time, a breath test is requested first, instead of a blood sample.

Michigan’s testing law is called “implied consent” because, at the time every person obtains a Michigan driver’s license, it is expressly noted that, by accepting that license, he or she agrees to provide a chemical test sample if arrested for an alcohol related traffic offense. In other words, he or she agrees, in advance, and as a condition of the issuance of that license, to provide a breath, blood or urine sample upon arrest for a substance-abuse related driving offense. This means that a person’s consent to such a test is implied (as in pre-given), just like his or her consent to being searched is implied if he or she goes through airport security.

One of the more frustrating parts of any professional’s job is explaining something to a person, only to have him or her largely ignore it, and respond with something that’s completely wrong, but that he or she likes better. As Michigan DUI lawyers, we encounter this somewhat regularly. For example, people often wind up hearing (and then believing) all kinds of incorrect things about DUI law (like the legalities of breath testing, or Michigan’s Implied Consent law,) either from someone who is not a lawyer, or from some lawyer who doesn’t concentrate in the DUI field.

GIrl-3-300x239This inevitably devolves into a variation on a theme I examine regularly: People are much more attracted to what they want to hear rather, than what they need to hear. While understandable, that’s a huge vulnerability that makes an otherwise rational person susceptible to getting fleeced into paying some lawyer for a result that sounds too good to resist, but just isn’t going to happen. This kind of misinformation is what drives so many weight loss programs, house-flipping schemes, and fitness crazes du jour.

Have you ever met anyone who went from flab to fab using a gizmo they saw on TV? Yet for all the laughs to be had about such gimmicks, there are still loads of people who want to be in shape so much that the idea of getting a beach body by twisting away on some $20 board for a few minutes a day while watching TV sounds awesome, and who gladly pay up. Moreover, the sellers of these products work hard at making such results seem plausible. Remember, though, and as the old saying goes, “if it sounds too good to be true, it probably is,” especially when it comes to DUI cases.

As Michigan DUI lawyers, my team and I consider ourselves to be rather good at what we do. I have no doubt that in every DUI case we handle, we manage to bring about the very best result possible. We have more than enough experience and skill to do just that, but there is also a 3rd element to being a good DUI attorney that often gets overlooked: a strong conscience. When we accept a retainer from someone, we feel a moral obligation to do everything possible to make sure we produce the best outcome for him or her.

90ef7413cfaf8d31aaad1b9bd8f6-which-is-more-important-following-orders-yes-or-doing-the-right-thing-noFor everything I can and will say on this subject, it really comes back to the simple principle of treating others as you would wish to be treated. There are certain times in life when you have no choice but to put your trust and well-being into someone else’s hands, and when that happens, you can only hope that person will put his or her heart and soul into the job and look out for you like they’d look out for their own family. We always feel that responsibility when someone puts their trust in us, and we absolutely pour our hearts and souls into the work we do.

If there’s a point to be made here, it’s that all 3 of these ingredients – experience, integrity, and skill – must be present for a lawyer to really be “good.” Who wants a really smart, sharp lawyer that can’t be trusted? On the flip side, what good is the most honest attorney on the planet, if he or she isn’t sharp? In certain fields, like law and medicine, brighter is better, but raw intelligence always needs to be guided by a strong moral compass, as well. This goes a lot deeper than merely not being a crook, and extends to making sure to look out for interests that people don’t even know they have.

As Michigan DUI lawyers, we interact with people facing DUI charges all day, everyday. While statements like “we get to know our clients” are good marketing lines, they really don’t mean anything specific. In the context of a DUI case, the idea of who you are is important on 2 levels: first, so your lawyer can address the specific concerns or issues that you have (ability to drive, professional license, etc.), and second, so that your lawyer can use your “social capital” (meaning trade on the value of what you’ve done in life) to produce a better outcome in your case.

Admittedly, a lot of how things work out in any DUI is a direct consequence of a lawyer’s experience and skill. To a certain extent, a really good lawyer can, especially in terms of presenting the case, make up for some of what the client is missing. It’s worth noting that even when lawyers or well-liked celebrities get in trouble, they always hire a well-spoken lawyer and let him or her do the talking. I know that if I needed an attorney, I’d want want one who was well-groomed and who could talk the leaves off the trees. In this article, however, we’re going to focus on the other side of that equation; the client.

In the previous article, I explained that right now, during the Coronavirus pandemic, the Michigan Secretary of State is conducting all driver’s license restoration hearings remotely. In this article, I want to examine the impact that going remote has had on the way Michigan criminal and DUI charges are being handled, both in the courts, and in our office. As of this writing (October 2020), we’re 7 months into the pandemic, and the legal world is adapting to handling cases in new ways.

Lady5Having had to do that by sheer necessity, there are likely to be some permanent changes (at least in our practice) to the way criminal and DUI cases are handled in the future, many of which are favorable. Right now, in the Metro-Detroit area (meaning Wayne, Oakland, Macomb and the surrounding counties), “going to court” in many jurisdictions means connecting to a legal proceeding virtually. So far, we haven’t had a single complaint from any client who had to appear on a video conference with the court instead of actually having to have physically show up in it.

I don’t expect there to be any complaints, either. It’s basic human nature to prefer to do things the easier way, especially when the outcome is at least as good as it would be otherwise. There’s an old saying that “necessity is the mother of invention,” and even though the idea of holding meetings virtually is not any kind of new invention, society’s attitude about them, and expectations for them, have certainly evolved in the past several months.

In part 3 of this article, we continued examining how, in all Michigan DUI cases, the courts are going to focus on a person’s drinking because, as simplistic as it may sound, the fact that a person already has a DUI makes him or her an identified, increased risk to do it again. I reiterated that multiple studies have shown that, as a group, people who previously had a DUI (or multiple DUI’s) test out with a higher incidence of alcohol problems than everyone else who hasn’t had one. We then concluded by noting that, despite everything else, sometimes, a DUI just happens.

Yet for as much as a DUI can “just happen” to just about anyone, the reality is that the overwhelming majority of people never get one. There are about 30,000 DUI arrests in Michigan each year, representing around 0.3% of the state’s nearly 10,000,000 person population. This means that more than 99.7% of people don’t get arrested for a DUI in any given year. Moreover, out of those 30,000-some cases, more than 9 out of 10 are NOT dismissed for any legal (or other) reason. While it’s understandable that everyone wants to get completely out of their DUI, the simple truth is that such results are the exception, and not the rule.

In part 2 of this article, we continued our examination of the court system’s focus on a person’s drinking in Michigan DUI cases. We noted that multiple studies have confirmed that there is a statistically increased rate of drinking problems among people who’ve had a DUI when compared to those who have never had one. For this reason, more than any other, the courts order everyone on bond and probation for a DUI to not consume alcohol, and also requires them to “test,” to ensure their compliance.

close-look-300x249Because of the court system’s intense focus on a person’s drinking, one of the problems we encounter, as Michigan DUI lawyers, is that Judges are seriously inclined to “overdo” the whole education/counseling/treatment thing. No matter what, all courts take a “better safe than sorry” approach. It is generally accepted that it is always better to have sent someone to counseling or treatment than he or she did not need than to have NOT sent him or her for any kind help they really did need.

This is perhaps easier to understand by taking a look at a 2nd offense DUI: Under Michigan law, anyone convicted of a 2nd (or 3rd) offense DUI is categorized as a “habitual alcohol offender,” and is presumed to have a drinking problem. Consequently, the person’s driver’s license will be revoked, because he or she is seen as risky, and a danger to the public. Getting it back requires proving, to the Michigan Secretary of State, that he or she has completely quit drinking alcohol, and is a safe bet to never drink again.

In part 1 of this article, we began looking at where the courts directs their attention in all Michigan DUI cases – to the person’s drinking. I pointed out that each year in Michigan, there about 30,000 DUI arrests, and then noted that our senior assistant often (correctly) points out to people who call us that “a DUI is about your drinking, not your driving.” Although it’s normal for anyone facing an OWI charge to hope his or her case can be “knocked out” somehow, the fact is that, on average, more than 9 out of 10 (>93%) of all DUI cases brought in this state do NOT get dismissed.

lkjlkjlkjlj-300x237The upshot of all this is that in order to produce the best results in those cases – the more than 9 out of 10 that don’t get tossed out our of court – it is imperative to know why the court system focuses on a person’s drinking, and what it’s looking at, as well as what it’s looking for. As also mentioned in part 1, it has been consistently demonstrated that DUI drivers, as a group, have a notably higher rate of drinking problems than the population at large, meaning everyone else who has not been arrested for a DUI.

The fact that people with a DUI have a higher rate of drinking problems than people without a prior DUI is very significant. Unfortunately, it is also completely ignored by most DUI legal websites. While many lawyers love to talk about getting cases dismissed, few of them want to talk about the fact that such outcomes do NOT occur in more than 9 out of 10 cases, and that’s a disservice. The reality is that, with very few exceptions, almost everyone arrested for a DUI is going to wind up on probation for it, so making that probation as easy and lenient as possible is crucial.

One of the more difficult things for anyone going through a Michigan DUI to grasp is why the court system focuses so much on his or her drinking. People often mistakenly believe that the court will be most concerned about the exercise of poor judgment that led to them driving drunk, but, as it turns out, that’s not the case. Instead, as our senior assistant puts it, “A DUI is about your drinking, not your driving.” This is key to understanding how and why OWI (Operating While Intoxicated) cases are handled as they are.

werggg2-300x270For purposes of this article, we’ll skip analyzing all the legal concerns about the admissibility of the evidence and the like, especially because those issues only come up in a small minority of cases, anyway. In Michigan, on average, more than 93% of DUI arrests DO NOT get dismissed or knocked out of court for evidentiary or other problems. Thus, our inquiry here will focus on how things work for the vast majority of people (more than 9 out of 10) here in the Metropolitan-Detroit area (meaning Wayne, Oakland, Macomb and the surrounding counties).

To be sure, the fact that a person drove while intoxicated IS the central issue of any DUI case, Accordingly, the main goals of the law is to impose enough consequences and penalties to deter him or her from ever doing it again. However, this is balanced by another (and often overlooked) goal: to make that point without ruining a person’s life. While people are often initially freaked out over the potential consequences of a DUI charge, the reality is that the court system has no interest in costing a person his or her job, destroying their future, or otherwise coming down too hard.

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