Articles Posted in DUI

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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 DUI 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.

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This article will answer the kind of questions that are often “googled” after a person has been released from jail following a DUI 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.

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As a Michigan DUI lawyer whose courtroom practice is concentrated in the Greater-Detroit area (Oakland, Macomb and Wayne Counties), my team and I are in one of the 4 divisions of the 52nd district court almost all the time, and often enough, many times within the very same week. These 4 courts are all connected within the same division (whatever that means…), yet for as many similarities they share, there are also profound differences between them, and a DUI or other criminal case may play out very differently in one location over another.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/08/JudgeEmoji-1.2-300x178.jpgIn this article, I want to very briefly introduce each court, its Judges, and the municipalities within the jurisdiction of each. There are 10 Judges assigned to these 4 courts, and they have some predictable similarities, but also some some interesting differences. Yes, some are tougher than others, which means, on the flip side, that some are more lenient than others. These more “delicate” issues are best discussed within the confidence of the attorney-client relationship and in the privacy of the conference room. And if you read that last sentence as a skillfully worded deflection, you’re right.

None of the 52-4 courts are over the top in terms of fines and costs. This means that if you’re facing a DUI, and especially something like a 2nd offense DUI (or a 2nd offense DWLS or possession of marijuana case), then we have to focus more on saving your behind rather than your money.  The notion that DUI cases are all about money, which often has merit, falls a bit short in these courts. As lawyers, we usually skip the numerical designation when talking about any of these courts, and instead identify each of them by name of the city or township where it’s located.  With that, let’s begin in numerical, rather than alphabetical, order…

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As a Michigan DUI and driver’s license restoration lawyer, I deal with problems caused by drinking all day, every day. To be sure, most people arrested for a 1st offense DUI don’t have a drinking problem, but it is also a well established fact that, as a group, DUI drivers do have a higher incidence of such problems than the population at large. By the time someone gets to his or her 2nd DUI, however, the likelihood that he or she is struggling with a troubled relationship to alcohol goes from merely possible to very probable, and when it’s a 3rd (or subsequent) DUI, the question shifts from having a problem to how serious it has become. In driver’s license restoration cases, where the existence of a drinking problem is presumed, the focus turns to what has been done to fix it, and whether the person can prove that he or she is a safe bet to never drink again. In this article, I want to look at the concept of recovery from a problematic relationship to alcohol.

spirituality-300x274It is a given that nobody sets out to develop a drinking problem. Sure, there are some people who, by their partying behavior and wild attitude seemed destined to run headfirst into one, but had you ever confronted them during the time they were acting all crazy and drinking too much, they would have dismissed your concerns. The point is that when a problem begins to develop within a person, he or she is almost always the most blind to it, and usually the last to see it – if they ever do. The sad truth is that most people either don’t ever see themselves as having an alcohol problem or, if they do, are unable to get over it. Thus, it is a starting point for any discussion of recovery that most alcoholics (that term is used loosely here, and really means anyone whose drinking has begun to cause problems) DO NOT recover. In fact, from what we have come to know about the development, diagnosis and treatment of alcohol use disorders, the simple fact remains that recovery is far more the exception than it is the rule.

Although the concept of “recovery” is deep enough in its own right to fill a library full of books, one general and universally true observation is that people don’t get sober because drinking is working out well for them. When a person really decides to quit drinking for him or herself (rather than for someone else), it’s often because he or she has hit some kind of “bottom.” The idea of hitting bottom seems simple enough, but in the real world, even among those who do recover, some people hit many false bottoms before they hit the real one. When someone hits that real bottom, however, there is no mistaking it, because it becomes the pivot point for huge changes that will dramatically affect the rest of their lives. Whether sobriety comes as a result of hitting bottom, or more gradually, by a kind of tipping of the scales in favor of not drinking anymore, once you are really in recovery, then you just “know” this, and feel it in the very fiber of your soul.

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If you hold any kind of professional license in the state of Michigan and you get a DUI, you are going to have to report it. This article will be a very short overview of a deep and complex subject. In fact, a person can easily get lost in the details involved in all the license stuff, so I want to cut a quick path to what is more the heart of the matter. Also, I want to turn away from all the scary, fear-based marketing stuff and make it clear that, at least in 1st and 2nd DUI offense cases, you will almost certainly NOT lose your occupational license. It is important to point out that there is a huge difference between what happens in the real world and what is theoretically possible on paper. A 1st offense OWI, for example, technically carries a possible 93-day jail sentence. With the possible exception of cases brought before one Judge in the Metro-Detroit area, nobody goes to jail in a 1st offense case, and even if that Judge does lock someone up, it’s only for a handful of days.

license-compressed-300x262This is significant because people often make the mistake of rushing to some lawyer they think can save them, and thus buying into what they want to hear at the moment, when they’re scared. A person will hop online and get just enough information to start freaking out, and then fall prey to the kind of fear-based marketing that I deplore. To be clear, if you have a professional license, you are certainly going to have to report your DUI, but that’s often all there is to it. In the healthcare world, for example, a DUI will almost certainly result in some kind of discipline, but any kind of license suspension is highly unlikely in a 1st offense case if things are handled properly. That said, a suspension is all but certain if it is discovered (and it will be discovered, so you can’t hide it) that a person failed to report a drinking and driving conviction. Within my DUI practice, I represent a lot of people with medical and nursing licenses. To this day, I have NEVER had any client of mine have his or her license revoked, and, as a DUI lawyer, I’ve handled countless 1st offense cases and plenty of 2nd offense cases for medical professionals.

The real risks for 1st time offenders is a reprimand, and the possibility of having to be evaluated for a substance abuse problem, and having to attend counseling thereafter. In the real world, counseling and oversight are far more probable in any kind of 2nd offense case (and by that, I mean even if a person is charged with a 1st offense DUI but has a prior alcohol or drug-related conviction). This is where I come in; beyond being a DUI lawyer, I bring a post-graduate education in addiction studies to the table. I fundamentally understand the development, diagnosis and treatment of alcohol and drug problems. Key to being able to help a client through both the court and administrative process is a working knowledge of how diagnoses are made and the various treatment modalities that are available for them. Over-diagnosis is and always has been a common problem in the legal forum. Moreover, this needs to be understood in the context that licensing bodies exist with the mission to protect the public from unsafe practitioners (better safe than sorry, right?).

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One universal truth for anyone facing his or her 1st offense DUI charge is a general fear of the unknown. Obviously, anyone charged with a High BAC offense has at least some understanding of the importance of his or her BAC result. While that number is important in each and every DUI case, its role is far more front and center in 1st offense cases, regardless of whether the charge is simply OWI (Operating While Intoxicated) or OWI with a BAC of .17 or greater (High BAC). In this article, I will highlight some of the more important reasons for that. This is the kind of subject that that we could either dance around politely, or, as I will do here, tackle head-on, without mincing words.

o-OPENER-facebook-239x300We need to start with the proposition that the whole world believes that the higher your BAC, the drunker you were. Now, having just said that, I can almost hear many people saying what everyone in the DUI world hears all the time – “I’m not a big drinker!” That may be so, but that has nothing to do with the fact that, as a hard and fast rule, a higher BAC means you drank more and were, therefore, more intoxicated. However you cut it, nobody has 3 glasses of wine over the course of 5 hours and blows a .18. Moreover, and no matter what you and I think or say about it, it matters far more what the Judge and the probation officer assigned to your case believe. Whatever else, you can take it to the bank that everyone in the criminal justice system assumes, as a matter of fact, that your BAC correlates directly with how much you had to drink and how drunk you were.

This is really important, because it’s right about here that people start to make bad decisions about handling their case. Sure, it probably feels good to speak with a lawyer who agrees with you and tells you what you want to hear and doesn’t speak as candidly as I am here, but think about that last line in the preceding paragraph: “…you can take it to the bank that everyone in the criminal justice system assumes, as a matter of fact, that your BAC correlates directly with how much you had to drink and how drunk you were.” That is an ironclad fact. If you don’t work from that as a starting point in handling your DUI case, then you’ve already begun with a misstep. The flip side of this is also important, because the lower a BAC score, the easier it will be to believe that the person charged is not a big drinker.

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The underlying idea for this article came from Ann, my senior assistant, as we were discussing a case where someone had violated the terms of either their ignition interlock or probation by drinking. Although I can’t recall which it was, I had Ann send me an email using the exact phrase she used in expressing her own frustration at the time – “when has NOT drinking ever screwed you up?” – and waited for the right time to use it in an article. My practice is concentrated in DUI cases pending in Oakland, Macomb and Wayne Counties and Michigan driver’s license restoration and clearance appeals for people who live anywhere in Michigan, or who have relocated to some other state. As such, I deal with fallout from people drinking alcohol all day and every day. In this article, I hope to give someone who is in any kind of legal trouble where they should not be drinking a reason to pause and think twice before doing so.

3010-267x300The consumption of alcohol leads to a lot of problems for some folks. To be sure, most people never run into legal issues as a result of drinking. If they do its something like an MIP as a kid, or maybe a DUI as an adult, but they learn their lesson and never get into trouble again. Yet for all of those who either never get in trouble or who get past one unfortunate incident involving alcohol, there are plenty enough who seem to keep drinking despite the fact that they keep getting into trouble for it. This kind of self-defeating behavior is clear in repeat offense DUI cases, but it also is there, if not so obviously, in probation violation and ignition interlock violation cases where someone gets caught after having consumed alcohol when they shouldn’t have. As I noted in the previous installment, the problem with articles like this is that most people usually find them after the fact, when they’re already in trouble. Even if that’s the case here, I want to give the reader something to think about so that he or she can resolve to not make the same mistake again.

The majority of probation violations, especially in DUI cases, occur because someone tests positive for alcohol. This is really the crux of what Ann meant; when someone keeps getting in trouble for drinking, it might be time to take a break and ask, “when has NOT drinking ever screwed me up?” Although many probation violation and ignition interlock violation cases share the same cause – drinking – everything else about them is different. In DUI cases, I make my living in court keeping my clients out of jail, even after they’ve violated probation by drinking when they were forbidden by a Judge’s order from doing so. As we’ll see, things are a lot different, and, yes, even worse, if someone drinks alcohol and winds up with an ignition interlock violation brought by the Michigan Secretary of State, because it means losing your license all over again. For good. Let’s start there first, and get to probation violations in the latter part of this article.

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In the previous article, I talked about getting through a DUI. In this installment, I want to focus more on just plain getting out of it. It goes without saying that everyone arrested for a OWI would love to have the whole thing to just go away. As a Michigan DUI lawyer, the primary thought in my mind, as I meet with a new DUI client and listen to what happened is, where do we find a way to get out of it? This isn’t just about wishful thinking, but rather assuming a mindset directed to winning. I often say that success in a DUI case is best judged by what does NOT happen to you, so if the entire case can be dismissed and nothing happens to you, what could be better? As great as that sounds, however, success is almost never an accident. Thus, a DUI lawyer has to set out with the determination to actually find a way to beat this thing, person-thinks-how-to-win-strategy-thought-cloud-words-speech-bubble-planning-winning-game-battle-31864780-286x300rather than merely hoping there is some way to do that.

For the most part, when DUI charges are dismissed, it’s because of problems with the evidence. There are specific protocols for how evidence must be obtained and tested in drinking and driving cases, and sometimes, if those protocols aren’t properly followed, that evidence can be kept out of court. Evidence needs to meet certain minimum standards in order to be considered reliable enough to use against a person. In the context of DUI charges, anytime a case can be dismissed because of problems with the evidence or questions about its reliability, that’s a win, and we’ll take it.

In the real world, there are 3 areas where we’re most likely to find problems with evidence significant enough to have it kept out of court: the traffic stop, the field sobriety tests, and the chemical evidence (meaning the breath or blood tests). While there can be problems with just about any part of a DUI case, these 3 stages present the most fertile ground for successful evidentiary challenges. Chances are, if there is a basis to challenge the evidence in a given case, it will have occurred during one of these 3 phases.

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As a Michigan DUI lawyer, there are tons of factual and legal issues that I must consider when handling an OWI case. That’s my job. Most of what you’ll find written on the internet focuses on things like evidence, including field sobriety tests and BAC scores, along with how cases work out and how and why plea bargains matter. Those are all important things, but they fail to look at how things feel, and are perceived, from the client’s point of view. Seriously, once you’ve hired a DUI lawyer, you should feel some relief, and all that legal stuff should become his or her problem. In exchange for what you’ve paid, you should have the comfort and confidence of knowing that your case will be taken care of in the most beneficial way for you. As the person facing the charge, your stress level should go down because you genuinely understand that you’re going to get through this, and that everything will be okay.

large-227x300And it will. If it’s your first DUI, and even if you are charged with a high BAC offense, we can navigate around most, if not all of, the scary sounding penalties, including jail. Really, with only 1 possible exception in one Oakland County court, no one goes to jail in a 1st offense DUI case. While a 2nd offense DUI is pretty much a bucket of suck, it’s not the end of the world, either, and with any kind of good legal work, you can emerge unscathed, and often enough without any real chance of going to jail. In fact, unless you’ve racked up a bunch of prior OWI convictions, even if you’re looking at a 3rd offense DUI, you’re not going to go to prison (at least not here, in the Metro-Detroit, Tri-County area). In other words, no matter how bad things are or seem, you’ll get through this. Of course, the better your lawyer, the better things will be for you. After all, that’s exactly what you are (or at least should be) paying for. Whatever your situation, though, it always helps to realize that, down the road, in about a year or so, this whole mess will be behind you.

Ultimately, it’s not about whether you’ll survive a DUI – of course you will – it’s about getting through it with the least amount of consequences. I am a busy DUI lawyer, and my team and I handle a lot of cases. As far as experience goes, we are certainly in the “seen it all” category, and probably 10 times over, at that. Accordingly, I can honestly say that the worst punishment most people get in their DUI cases is self-imposed emotional stress, especially in 1st and 2nd offense cases. Some people just freak themselves out over a DUI way beyond what’s necessary. I hope the reader really takes the time to digest what I’m saying here, because the majority of DUI lawyers rely rather heavily on fear-based marketing tactics, even if they do so unintentionally.

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The whole world of DUI cases can seem like an alphabet soup full of letters and abbreviations. As I pointed out in a recent article, Michigan doesn’t even have a “DUI” law; instead, we have OWI, which stands for “Operating While Intoxicated.” The OWI law came into effect in 2003, replacing the old law, which previously defined drunk driving as OUIL, or Operation Under the Influence of Liquor. In this article, I want to examine 4 different sets of 3 very important initials (FST, BAC, PSI and SOS) that affect every drinking and driving case that goes through the court system. Although the various drunk driving offenses are officially identified with some variation of the term “OWI,” I will mostly use the term DUI simply because that’s the way most people talk.

4-things-300x241The first 3-letter term a driver will encounter is FST, meaning field sobriety tests. These are the things you do at the side of the road, after being pulled over, and can include things like the heel-to-toe walk, standing leg raise, and the horizontal gaze nystagmus (HGN) test. Beyond these more “approved tests,” police officers also often ask people to count backwards from one specific number to another, recite the alphabet without singing, and/or tilt their head back and touch their nose. Field sobriety tests are named after the purpose they serve, allowing an officer in the field to determine if there is probable cause to believe a driver is intoxicated.

There is, of course, a large body of law and lots of science behind FST’s and that goes way beyond the scope of this article, but you can be sure that the police will almost always write in their report that the person failed one or more of them as justification for the decision to arrest him or her. Back in the day, before video, it was more or less the driver’s word versus the officer’s word when it came to how well or not a person did. Now, most police cars are equipped with dash-cam video recorders, so we can usually compare the officers account of how a person did on the FST’s with the video of how he or she actually performed. In my role as a Michigan DUI lawyer, I always look for, and do, in fact, find things on the video that help my client get out of his or her DUI charge. Even when the person didn’t do very well and video only serves to confirms the officer’s account that the person was intoxicated, having watched it gives both me and the client the piece of mind to know that we’re not missing anything we could successfully challenge to get the case thrown out.

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