Articles Posted in DUI

While everyone worries about staying out of jail and losing their driver’s license for a High BAC charge (technically called OWI with a BAC of .17 or Greater), there is another key concern often overlooked, or that even goes unnoticed, by a person scrambling to avoid the legal penalties in such a case; the perception that he or she has some kind of troubled relationship to alcohol. Anyone arrested for a High BAC is very much at risk to be seen within the court system as having an alcohol problem, and it is important to understand why that’s the case, in order to be able to do something about it.

breathalyzer-3-300x287In order to keep this article of manageable length and on point, we won’t get into some big, general examination of High BAC cases, but rather why the very term “High BAC” generates an extra-negative perception, and what can be done to counter that. It is important to begin by noting that even though the main component of a High BAC charge is the elevated BAC result itself, that’s really just “the icing on the cake,” so to speak, because it builds upon the long-established fact that, as a group, DUI drivers have a higher rate of drinking problems than the population at large, meaning people who don’t get a DUI.

This ties into something so important, I recently completed an 8-part examination of it, and have even dedicated an entire topic section on this blog: the alcohol bias. We won’t re-examine it in much detail here, but the foundation of the bias is based upon that statistical reality that DUI drivers do, in fact, have a higher incidence of troublesome drinking than everyone else. This means that anyone walking into court for a DUI charge is seen as a member of that at-risk group. This is only exacerbated when you add a BAC result that practically screams “big drinker!”

Who is the best DUI lawyer? What about the best singer, baseball player, or runner? Any serious attempt to answer a question like this must be qualified in various ways; whoever might be the best opera singer probably won’t make the cut for best R&B or rock and roll singer. In baseball, the best pitcher is a much different player than the best batter. In looking for the best, context matters. The “best runner” in the 100-yard dash is no doubt the fastest in that event, but is a lot different from the best marathon runner, who must pace him or her self for 26.2 miles.

download-7This means that finding the “best” DUI lawyer is really about getting the best person for your case, more than anything else. This, in turn, is dependent on things like the facts of the case, where it’s located, and how well the lawyer and the client “fit” and work together. Some people get along better with the kind of legal “buzzsaw” who, taking a shotgun approach, challenges everybody and everything within a case, while most others do better with a more thoughtful approach. And as much as someone might prefer one personality type over another, the lawyer has to be the right fit for the case itself, as well.

Specifically, nobody can be all things to all people. Certain lawyers are better at some things than others, and even do better in some locations than others. For example, my team and I limit our practice to the Metro-Detroit area, where we know, from repeat, day-in and day-out experience how things are done in each of the various courts in which we work. Location is important in a criminal or DUI case. Some Judges are “easier” than others, but however that shakes out in any particular case, a lawyer has to know how to deal with it, and we make sure we do.

As Michigan DUI attorneys,we stay on top of all developing legal issues. This one, which is both interesting and important to a lot of people, has been widely broadcast on news channels across the state: On January 13, 2020, the Michigan State Police moved “to take all 203 Datamaster DMT evidential breath alcohol testing instruments out of service until MSP can inspect and verify each instrument to ensure it is properly calibrated. In the interim period, the MSP recommends that police agencies utilize blood draws rather than breath tests to establish evidence of drunk driving,” according to an official MSP statement published online.

dmt-1-300x251What, if anything, is the upshot of this? What are the implications for anyone with a pending DUI? Does this mean there is some way to “undo” the conviction for someone previously convicted of a DUI? While the answers to those questions are evolving, there are a few things we can take from this right away, not the least of which is that from this point forward, until things are resolved, the MSP, as noted above, is recommending that suspected DUI driver’s undergo a blood, rather than a breath test.

What has been disclosed thus far is that the MSP has learned that an outside company hired to calibrate and maintain all the Datamaster breath-testing units may have falsified documents relating to their upkeep. This, of course, opens up the possibility that any machines affected, when used, may not have been functioning properly, and therefore could have provided inaccurate BAC results. This has significant potential implications for anyone convicted of an OWI offense (DUI), or who is otherwise facing such a charge, based upon Datamaster breath test results.

In part 1 of this article, I began explaining how, although it is normal for anyone with professional employment, or who holds a professional license, to worry about losing their job or their occupational license because of a DUI, such an outcome is highly unlikely, especially in 1st offense cases. In the real world, this is a fear that almost never plays out. We saw that, contrary to how they’re often perceived, licensing bodies are not angry, punitive agencies just waiting to pounce and revoke licenses for things like DUI convictions.

mmmInstead, as I tried to make clear, beyond having rather strict reporting requirements, the big risk for anyone with a professional license is that the licensing agency will require him or her to be “evaluated” to determine if they have any kind of substance abuse problem, and then required to complete any treatment deemed necessary as a result of that evaluation. As we’ll see in the coming paragraphs, the problem is that this takes place in an environment that, instead of being any kind of level playing field, is tilted far for toward the “better safe than sorry” side of things.

Even so, it goes without saying that a person is better off being able to keep his or her license, but also be required to complete any kind of treatment to do that, rather than simply having it taken away. The reality, however, is that (especially for medical professionals), we’re not talking about a few months of seeing a counselor once a week; the kinds of remedial measures required can be extremely demanding, and often include, in addition to anything the court orders, several AA or NA meetings per week, individual and group counseling, and regular breath and/or urine testing.

If you are facing a DUI charge and have any kind of professional employment, or hold a professional license, your worries go beyond just the potential legal consequences from the court. Unfortunately, a lot of legal marketing is fear-based, and tries to exploit the correlation between how much someone has to lose and how frightened they are when dealing with a drunk driving charge. Instead of doing that, I want to make clear, in this 2-part article, that for most people, including doctors, lawyers, teachers, and most other professionals, a single DUI will almost certainly NOT cost you your job or license.

mmmmm-300x256My team and I have, quite literally, handled thousands of DUI cases. Short of a professional lion-tamer, I can’t think of a profession we haven’t represented. We’ve taken care of DUI charges (including 2nd offense cases) for more medical and other professionals than I could count, and absolutely none of them have lost their licenses, or their jobs. In almost every case, with some skillful planning that accounts for the legal, employment and licensure implications of an OWI charge, everything can be worked out just fine.

That said, I am not aware of a single exception to the requirement that anyone convicted of a DUI must report it to his or her professional licensing body within a certain number of days. Separately, some people are required, under the terms of their employment, to report a DUI to their employer, but most are not. While employment terms are mostly contractual, and can require a person to notify his or her employer of an arrest, or pending charge, the reporting requirement for professional license holders is strictly rule-based, and, generally speaking, only kicks in after there has been a formal conviction.

In part 1 of this article, we began an examination of how my firm educates our DUI clients, particularly in 1st offense DUI cases, to make sure they understand the whole process and take the appropriate steps to make sure it never happens again. I noted that everyone will, of course, say it won’t happen again, but that being a better lawyer means taking a few extra steps to help the client as a person, and not just help him or her out of a legal jam. We then looked at the critical role of the alcohol screening test and how it significantly determines the outcome of a case, and the importance of being thoroughly prepared for it. We concluded with the key observation that success in a DUI case is always best measured by what does NOT happen to you.

3333333-284x300Educating the client isn’t merely about preparing him or her for things that will or might happen. Sometimes, it’s more about dispelling a person’s fears and misconceptions, as much as anything else. The issue of jail (or, really, the lack of it) serves as a good example for what I mean: I am undoubtedly the most vocal lawyer out there about the fact that, almost without exception, you won’t go to jail for a 1st offense DUI in the Metro-Detroit (meaning Wayne, Oakland, and Macomb Counties). I make that clear on both my website and in many of the more than 425-plus DUI articles (to date) I’ve written and published here, on this blog.

Despite all of that, my office gets calls and emails almost every day from people facing 1st offense DUI charges who, more than anything else, are freaking out and pleading for help to stay out of jail. I could make a killing if I just marketed my practice solely on the basis of “staying out of jail” in 1st offense DU cases. I could reassure people that it won’t happen, and do little else other than wait until the case is over to bask in the false glory of having kept them out. Morally speaking, that’s not the right thing to do, however…

One of the most distinguishing features of how my firm handles DUI cases is that we try and educate our clients about the whole DUI process, and also help them explore their assumptions about alcohol to make sure that they don’t find themselves in the same legal predicament again. Of course, everyone says it won’t happen again, but even the best laid plans sometimes go awry, so we add in a little protection, just in case. We truly believe that our obligation to our clients goes beyond just helping them “get out” of a legal jam, and compels us to help each one as a person, with an eye toward protecting their future.

22222222-295x300A DUI case IS a big deal. From a purely legal point of view, it’s all in a day’s work for us, as DUI lawyers, to help our clients avoid most of the negative consequences from an OWI charge. However, because of our experience handling DUI cases day-in and day-out, and the things we know, we feel morally obligated to do better than just that, and do more than just damage control. Handling the legal aspects of a DUI is really the bare minimum a person should expect from a lawyer, in the same way that closing up a cut is the bare minimum a patient should expect from an emergency room doctor.

In that regard, just like a better doctor will want to stitch the wound carefully, so that it heals with as little scarring as possible, a better lawyer will want to make sure the all of the client’s interests are protected, including many the client may not even realize he or she has while in the the thick of things. Although there is a lot to this, key in every case is helping the client to understand both the legal implications of the current case, and how his or her future relationship with alcohol needs to be adjusted in some way or ways to make sure there isn’t another, and that this DUI is a “one and done.”

In the previous articles about the alcohol bias, I explained how it can result in “seeing” problems that aren’t there, or seeing those that do exist as worse than they really are. As a result, unnecessary counseling or treatment is often ordered by courts, or, when some kind of help IS warranted, what does get ordered may be far more intense than what is really needed by the person who has to go through it. I’ve pointed out that a rather general explanation for this is a pervasive notion in the court system that “it’s better to be safe than sorry.” In this article, I want to try and look at things from the court’s (safe) side of things.

Point-Counterpoint-B-300x300The fact that this “other side” can be examined in a piece about 10 times smaller than the larger examination of of the alcohol bias says something, to be sure. Even so, the courts do have some genuinely valid concerns. For as much as there is to dispute the basis of the alcohol bias in the court system, we should, in all fairness, consider the things that support it, as well. For example, as much as the alcohol bias is subconscious, every Judge is always aware that, when sentencing someone for a DUI charge, instead of ordering any kind of counseling or treatment, they can just send the person to jail.

In the blink of an eye, and given that choice, every person I have ever met would much rather go to all the counseling and meetings in the world, rather than get locked up. Although the end result can be imperfect, it is almost always the intention of the court system is to provide a DUI driver with whatever level of education or counseling he or she needs, or that will be beneficial to him or her. The underlying objective of the sentence in every DUI case is really two-fold: on the one hand, what’s ordered should be disincentive enough to convince the person to never drive drunk again, while, on the other hand, it should provide the appropriate level of education or/or counseling to address whatever issues may have led up to the DUI in the first place, in order to avoid a repeat performance.

In part 1 of this article, we began a summary overview of the alcohol bias in the court system. This 2-part article is meant to both summarize some of the key points of its 8-installment big brother, and, hopefully, convince the reader that there’s enough to all this to make it worth his or her time to read the larger piece. The alcohol bias underlies everything about Michigan DUI cases, and there’s no way to even touch upon its key aspects in any shorter format. The alcohol bias – the idea that most DUI drivers either have, or are at risk to develop a drinking problem, and should, therefore, be treated accordingly – is really the reason the DUI process in Michigan plays out as it does.

imagesWe left off, in part 1, by noting that the alcohol bias makes people in the court system “see” an alcohol problem even where there isn’t one, and to magnify any risk factors or actual problems that do exist so that they’re perceived as worse than they actually are. This, in turn, gives rise to the “better safe than sorry” mindset that is pervasive within the court system. Although it’s not a big deal to send ever 1st offender for some kind of preventative education, the alcohol bias has consequences well beyond just that.

In a certain way, the alcohol bias is almost self-powering. While there are plenty of things that can lead a Judge, probation officer, or anyone in the court system to “see” drinking problems, the ugly reality is that they encounter very little to ever contradict that notion. For example, the number of people who go to trial and successfully defend against a DUI charge in Michigan is so low, you have to read the numbers twice to believe them:

This article about the alcohol bias in Michigan DUI cases is not intended to be a “Cliff Notes” or a summary of the larger, 8-part article examining how it functions in the court system. If anything, I hope that what the reader finds here will motivate him or her to read all 8 installments of the larger piece. The alcohol bias, at its most basic, is the pre-supposition, within the court system, that essentially results in everyone going through a DUI being treated as if they either have, or are at risk, to develop a drinking problem.

BOTTOM_LINE_LOGO_0-66-284x300The bias generally operates beneath the consciousness of everyone working in the courts, even though it really is a controlling factor in how DUI cases are processed. The implication of the alcohol bias is the idea that most DUI drivers are risky drinkers, and should be treated as such. This notion is strongly supported by studies consistently showing that DUI drivers, as a group, have a statistically higher incidence of alcohol problems than the population at large. As true as that may be, the other implication, too often overlooked, is that plenty of people showing up for a 1st offense DUI case DO NOT have a drinking problem.

Rather than taking a chance of missing someone who either has an actual drinking problem, or  who is otherwise at risk for one to develop later, the courts believe that “it’s better to be safe than sorry.” As a result, just about every court, in almost every DUI case, requires at least some level of alcohol education, if not counseling and/or treatment for just about every 1st-time offender. The real-world effect of the bias is that anyone going through a DUI will, at a minimum, have to do some drinking prevention type “stuff.”