Articles Posted in DUI

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.

SNW-300x146Here, 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 report.

By law, when you show up for sentencing, you and your lawyer are required to read the probation department’s report and recommendation and check for errors. 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.  This is where you point out if and where anything is stated incorrectly, like your name, date of birth, prior record and such.

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.

Nexter-300x150By 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.

After 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.

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.

NN2-300x179Here, 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.  Some courts, however, 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.

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.

11873522964_9cb8eb5a44_b-300x295As 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.

DUI 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.

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…

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.

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?).