Michigan Criminal Defense Lawyer Blog
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.
When 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.
Perhaps 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.
When 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.
In a very real way, I seemed to have overlooked the recovery aspect, probably because it’s so central to who I am and the work I do. To be sure, my articles about sobriety leave no doubt that my understanding of the development, diagnosis, treatment of, and recovery from alcohol and drug problems runs very deep, and goes miles beyond the legal aspects involved in winning a license appeal. Having completed a post-graduate program of addiction studies, I bring a healthy measure of clinical knowledge unmatched by any other lawyer I know.
In the real world, you can count on a person facing an OWI charge insisting they don’t drink a lot, or they don’t drink that often, and so on. It’s normal for people to “hurt” after a DUI, no matter how it came about. Because of this, a person picked up for drunk driving will automatically try and do some damage control relative to his or her drinking. The truth, however, is that even if a person hardly ever drinks, that misses the point. While it’s easy to think of a drinking problem in terms of frequent over-indulgence, or the “need” to drink regularly, those things are markers of just one kind of drinking problem.
I am rather uniquely qualified to examine this topic, having both a legal and clinical background. For everything we’re going to go over in these installments, the bottom line is that sometimes, a person facing a DUI charge just needs someone to talk to, while other times, they need someone to really “talk” to them. Unfortunately, the path of least resistance for any lawyer handling DUI cases is to simply agree when a client says, as most do, things like they don’t drink much, or often, or otherwise aren’t “big drinkers.” Ultimately, it fails the client when a lawyer is too afraid to disagree, and instead follows the salesperson’s strategy that “the customer is always right.”
It may sound corny, but it begins with the simple proposition that, in my professional life I always try to treat others as I would wish to be treated if I was on the other side of the transaction. If there’s one thing I absolutely HATE when I’m the consumer, it’s any kind of BS or evasiveness surrounding cost. When I call a business, I expect to be able to get a price, unless it’s for something like a repair job, where a technician has to first diagnose the problem, but even then, there is no good reason to not be able to at least provide a “ballpark” figure. I won’t accept less.
As we set off, I’d ask the reader to think for a moment about all the celebrities who make the headlines for something like a DUI or an assault and battery charge. This is a fairly regular part of the news stream. For the most part, the public is more interested in the fact that So-and-So was arrested for something, rather than following the case as it winds along. Unless someone really well-known goes to prison for years on end for some horrible crime, people tend to have lost interest, when, 4 or 5 months later, So-and-So gets a year probation and 100 hours of community service for a DUI, or punching some photographer.
For everything we’re going to discuss, the bottom line is that you either hire a lawyer who is charismatic, persuasive and inspires confidence – or not. And why would anyone choose “or not?” In my own life, I much prefer to deal with someone who is genuine and interesting, rather than endure boring, politically correct blandness. In the role of lawyer, it’s far better if a person presents him or herself clearly, and with real “feeling.”
In that same way, nobody thinks of a mixed dish of cucumbers, olives, peppers and tomatoes as a “fruit salad,” but in fact, it is, because those are all fruits! Similarly, most people who find themselves in a DUI situation are nowhere near what anyone would consider “criminals.” And while this may all sound comforting and nice, the reality is that while most DUI offenders don’t belong mixed in with criminals in any sense, getting a DUI puts them smack-dab into that very position. Most of my 1st offense DUI clients have never been to jail prior to their arrest for this charge, and absolutely none of them ever want to go back, because they know they don’t belong in that environment.