Articles Posted in DUI

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As a Michigan DUI lawyer, I know that an OWI charge must be based on evidence. Whether a case is solid or not depends entirely on the strength of that evidence. Just about every lawyer with a website is going to say something about evidence. Some, more than others, talk a really good game about how they’ll evaluate it, and even challenge it. While that all sounds great, I think it’s time we take a step back and briefly explain what all that really means, or at least should mean.

illustration-magnifying-glass_53876-28516-1-300x240Perhaps the best known component of the evidence that makes up a criminal or DUI case is the police report. In a perfect world, this report would be an accurate, complete, and unbiased account of exactly what happened in any given case. However, it is impossible for an officer on the scene to NOT bring a biased perspective to the table, because the only thing he or she can do, at best, is recall what he or she observed, and observation is always a matter of perspective.

It would be no different, really, if the person arrested for the DUI was required to write a report. It doesn’t matter how honest a person arrested or the police officer may be; both parties are going to recall things a bit differently because of their different perspectives. If this wasn’t universally true, there would be no need for instant replay in football, and you’d never see a blown call in any sport. While the police report is always a key part of the evidence in any case, it is important to note that it is only one piece of a much larger puzzle.

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In part 1 of this article, we began examining 3rd offense (felony) DUI cases in Wayne, Oakland, and Macomb Counties. I noted that most of the scary-sounding potential consequences, like going to prison, can be avoided, and that the lawyer needs to carefully evaluate the evidence, right from the start, with the mindset that there IS something to be found that can be used to defend the case, rather than merely hoping for something obvious to jump out. Here, in part 2, we’ll pick up right where we left off, and see what a lawyer should do to protect the client from as many penalties as possible.

planning-300x263Generally speaking, anyone facing a true 3rd offense DUI in the Tri-County area is looking at a relatively short stint in jail, and NOT prison. When things are done right, jail can usually be minimized to the legal minimum of 30 days, which, as I pointed out earlier, works out to about 3 weeks of actual time behind bars. Even in cases where it’s a person’s 4th offense, if things are handled properly, a few more weeks may be tacked on, but, in my considerable, nearly 30 years of experience, nobody goes to prison around here for a 3rd or 4th offense.

For example, in one recent case, my client had 5 prior DUI convictions, making our case his 6th. We worked hard, and managed to limit his jail term to 60 days (meaning about 47 days, actually). In another case, my client had 4 prior DUI’s, and we handled his 5th. Despite some rather challenging circumstances to his case, he also got 60 days, which, because of jail credit (he spent the weekend in jail before being arraigned) amounted to a sentence of about 45 days, to be served on work release.

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Everyone knows that being charged with a 3rd offense DUI I’m Michigan is a big deal. The last thing anyone needs when facing a felony OWI charge is some lawyer listing all the bad potential consequences, ESPECIALLY because, with the help of a good DUI lawyer, most of them can be avoided, or at least substantially minimized. In this 2-part article, I want to talk about avoiding things like going to prison, unnecessary jail time, and getting hit with over-the-top probation in a 3rd offense case. Part 2 will be a bit longer than this first installment.

planBecause the possible consequences are serious for a 3rd drunk driving charge, every shred of evidence, and every step of how it was collected needs to be carefully examined by a lawyer who knows what he or she is looking for. The idea, of course, is to wholeheartedly try and find a way to beat the charge. It’s not good enough for some lawyer to merely look at the case to see if something jumps out; instead, he or she has to dig deep, and really evaluate things.

A 3rd offense charge is best handled by a skilled lawyer who puts everything under the microscope for a critical and thorough evaluation. Because the stakes are high, the lawyer has to examine the evidence with the mindset that there are issues and problems with it, even if they’re buried deep in the details, and to keep digging until he or she finds something.

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In part 1 of this article, I began explaining how my office does consultations (over the phone, right when a person calls, Monday through Friday, from 8:30 a.m. until 5:00 p.m.), and how they provide the opportunity for a person to evaluate whether my office is a good fit for his or her case, and for us to assess the caller. I also noted that I publish my prices, not only in the interests of transparency, but also so that we don’t waste time with anyone shopping for a bargain lawyer. We ended by promising to come back, here in part 2, and talk about how we do our consultations.

downloaderUnderstand this: a consultation is invariably a sales opportunity. If you want some kind of plastic surgery and have consultations with several physicians, it’s not because they’re bored and want to talk about medical procedures with strangers. This goes for just about anything. A free consultation is very much like a “free estimate.” Do you really think that lawyers look forward to bringing people into their offices for a “free consultation” so that they can answer all kinds of legal questions?

It seems pretty obvious that the ideal purpose of a consultation is for each party to size up the other in order to make a hiring decision. In the real world, though, this often becomes a kind of game where the person providing the consultation really “steers” the person toward making that decision before they leave.

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My office does consultations differently than just about every other lawyer and law firm. In this article, I want to explain how we do them, and why that’s important. My consultations are specifically intended for those who are looking to hire a lawyer in one of my practice areas and maybe doing some comparison shopping and want to get a little information or see if my office is a good fit for their needs. All of my consultations are done over the phone, right when a person calls into the office.

CULTURETWO_3739_1-300x300That convenience factor of doing it this way is also a benefit for me, also, because as much as a consultation is an opportunity for a potential client to size up a lawyer or law firm, it also provides an opportunity for us to evaluate a person and determine if he or she will be a good fit for the way we do things. I am fortunate enough to have a busy practice, and therefore don’t have to take every case that comes my way, nor do I have to compete on price. In fact, I publish my fees, not only in the interests of transparency, but also, because we offer higher-end services, to weed out bargain hunters or anyone else who is price-shopping.

Beyond all of that, I have no interest in taking on any sort of “difficult” client. Younger lawyers and those who are starving for work have little choice but to sit silently as some angry person goes on about how everyone else is at fault, how the police got it all wrong, or how the court system is unfair, but I don’t. If you’ve dealt with the public, then you know some people seem to always have a chip on their shoulders, or are otherwise just always a pain the a$$. I can afford to pass on them, and I do.

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In part 1 of this article, we began looking at the sentencing phase of a criminal or DUI case. I pointed out that this is by far the most important part of any case, because it’s where you learn what will (and will not) happen to you. We also saw that in most cases, the Judge is supplied with a PSI, or “pre-sentence investigation” report (often called a “screening” in DUI cases), prepared by the court’s probation department, that includes a sentencing recommendation. Because this recommendation is closely followed by every Judge in every court, the key to getting a better sentence is getting a better recommendation in the first place.

download-53Here, in part 2, I want to examine how a sentencing actually plays out in court, and then the idea of getting a better recommendation up front will make more sense. Before I do that, however, I have to make clear that, in some cases, there is no PSI required. For example, in DWLS/DWLR (Driving While License Suspended or Driving While License Revoked) cases, many (but not all) Judges will do immediate sentencing, right after a plea, without sending a person for a PSI or any kind of screening.

For what it’s worth, if and when a Judge does go to immediate sentencing, a lawyer’s extemporaneous speaking ability can make all the difference in the world. This reinforces the importance of having hired a lawyer who is charismatic and persuasive. Whatever else, I want the reader to understand that the whole interview with a probation officer, PSI-thing doesn’t take place in every misdemeanor case. With that out of the way, let’s return to how we can get a better recommendation from the PSI.

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In the final analysis, the most important part of every criminal and DUI case is the sentencing. This is when you stand before the Judge and learn your fate. In the previous article, we briefly examined the pretrial stage in criminal and DUI cases, noting that the vast majority are worked out through plea bargains, plea deals and even sentence deals negotiated at the pretrial stage. In this article, we’ll move on to the sentencing phase and examine what happens here. No matter how you cut it, success in a criminal or DUI case is always best measured by what does NOT happen to you.

maxresdefault-300x186If the parties can’t work things out through some kind of plea or sentence arrangement, a trial will be held and a person will either be found guilty, or not guilty of whatever charge(s) he or she is facing. Except for the lucky few whose cases are either thrown out of court before trial, or who are acquitted of all charges after a trial, everyone else (meaning those who plead to or are found guilty of some offense) will go through a sentencing. This is where the rubber meets the road in criminal and DUI cases, and where you learn if you’re getting locked up or not, along with what else will and won’t happen to you. In short, this is everything.

Because jail isn’t really on the menu for most of my clients, the sentencing is where we’ll find out what kind of probation they’ll get, and how long they’ll be on it. Probation is an order of the court requiring a person to do some things, and forbidding him or her from doing others, like drinking alcohol, using drugs, and getting into any more legal trouble. Of course, it’s always better to walk out the front door of court after a sentencing, rather than be taken out the back door, but, as I noted above, the real gauge of success in any criminal or DUI case is always a matter of less, meaning the less that happens to you, the better.

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In part 1 of this article, we began an overview of the pretrial stage in DUI and criminal cases. I began by loosely defining a pretrial as any meeting between the prosecutor and the defense lawyer where the case is discussed. I noted that there can be any number of pretrials, and that I plan on having at least 2 in all of my cases. In the real world, very few DUI cases actually do go to trial; instead, the vast majority of them are worked out through negotiations that take at the pretrial stage, and ultimately lead to a plea or plea bargain. Now, let’s turn our attention to what happens when the parties meet and begin those negotiations.

22-300x189When the defense lawyer and prosecutor do get together and talk, they almost always first discuss the case in general terms. Some things are just obvious. There is a difference, for example, between something like Wasted Wally getting arrested for DUI after rear-ending a row of parked cars and having a BAC (bodily alcohol content) that’s through the roof, versus Sarah, the nurse, who has never been in trouble before and was picked up for DUI with a BAC just over the legal limit, after a police officer observed her swerving a bit.

A prosecutor will come to the table either more or less inclined to negotiate. Sometimes, the nature of the case sets the tone for these meetings, like in a charge of OWI causing serious injury, or where there has been an accident. You could expect a prosecutor to be less inclined to cut a deal in the case of Wasted Wally than in the case of Sarah the nurse.

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Almost every DUI case gets worked out and settled at the pretrial stage. Knowing what a pretrial is – and is not – is really key to a basic understanding of how most criminal and DUI cases are resolved. In this 2-part article, I want to shed some light on the role of the pretrial, because once you better understand it, you’ll find that the whole idea of an upcoming pretrial is certainly nothing to be worried about. Despite the mystery that seems to surround it, this is actually a very simple concept.

590737319_1479768804-300x270Perhaps the biggest misconception is that there is just a single pretrial, meaning only one such proceeding. Unlike certain phases of the criminal and DUI process, like an arraignment, or a sentencing, which only happen one time, there can be any number or pretrials. Most of the criminal and DUI cases that I handle have at least 2 pretrials, and often more. Thus, it’s not a matter of only having one pretrial in a case, but rather that there can only be one pretrial at a time, with the first one most often being followed by at least one more.

This makes more sense when you realize that the definition of a pretrial is really any meeting of the parties (meaning the prosecutor and the defense lawyer) prior to (i.e. pre) trial. While a pretrial is usually used as an opportunity for negotiations to take place, anytime the parties get together before trial, the term pretrial generally applies. And to be clear, although we’re getting a bit ahead of ourselves, the overwhelming majority of criminal and DUI cases DON’T go to trial, meaning that very few pretrials are ever followed by an actual court trial.

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In part 1 of this article, I began reviewing how my in-depth understanding of recovery, and the various way people do, in fact, recover from alcohol (and drug) problems gives me a decided advantage as a Michigan driver’s license restoration lawyer, to the point that my office guarantees to win every first time license restoration and clearance case we take. Our overview began with a discussion on the importance of examining a person’s relationship with alcohol in the context of DUI cases, and particularly 2nd offense cases. Here, in part 2, we’re going to shift that focus to recovery, and how that is central to success in a driver’s license appeal case.

2-300x184When someone contacts me about a license restoration or clearance appeal, the first thing I want to know is the last time he or she had a drink. There is no way to overstate this: proving you have quit drinking for a sufficient period of time and have the commitment and tools to remain alcohol-free is the absolute key to winning a driver’s license appeal. Nothing else matters without sobriety.

This is where a lot of people, including lawyers, get lost – right at the part about having the “commitment and tools” to stay sober. Pretty much everyone in the world is familiar with AA, but unfortunately, that’s also just about all most people know about recovery. For a long time, AA was the only game in town. Before AA, the only way to address alcohol problems was what we now call the “moral model,” where the hope was a person could be shamed into not drinking anymore, or somehow “prayed” into recovery. Not surprisingly, that didn’t work.

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