Challenging the Evidence in a Michigan DUI case: Facts -vs- Myths

As Michigan DUI lawyers, we analyze evidence from drunk driving arrests every single day. One of the bigger misunderstandings people have about DUI cases is that all a lawyer has to do is file challenges to all the evidence in order to “ muddy up the waters” enough to get the prosecutor to surrender. That’s completely wrong. The inspiration for this article came from my senior assistant, who, after a long day on the phones, rather astutely pointed out that “you can challenge everything, but it only makes a difference if you win. We deal in facts, not fantasy.” There’s a lot of wisdom in that observation.

Slim-Fact-300x300The reality is that a lawyer can pretty much challenge almost every bit of evidence, but unless he or she is successful, all that work amounts to nothing more than a waste of time – and the client’s money. To be sure, that can be profitable for the attorney, but beyond jacking up the fees, such fruitless challenges cause the other key parties (namely, the Judge and the prosecutor) to lose patience with a lawyer who either knows, or at least should know better, and also puts the client on a kind of emotional roller-coaster, by getting his or her hopes up, only to ultimately disappoint him or her later on. That’s just plain deceitful.

Of course, challenging faulty or even questionable evidence is not only important, it’s an obligation for a competent Michigan DUI lawyer. My team and I always go to court and fight to exclude any evidence that may reasonably be kept out of the case. Likewise, we know how work with – and work around – the evidence that does exist (and can’t or won’t be tossed out) in order to help produce the very best outcome possible in the case; that’s what being a lawyer is all about. When some lawyer challenges any and everything, however, and just fights for the sake of fighting, or to run up a legal bill, that only serves to piss everyone off.

That kind of shotgun approach to handling a DUI case is NOT the way to do things, and certainly won’t be of any help in achieving the best results. Make no mistake, the attorneys who pull theses stunts have earned themselves a reputation within the legal community, and it’s nothing to envy.

A number of years ago, I was talking to a colleague of mine, and he complained that he hated to get stuck behind one of the “I’m going to fight everything” lawyers in court, because if he was next in line to meet with the prosecutor, they’d still likely be steaming mad from that previous conversation.

To be clear, prosecutors understand and respect defense lawyers who stand up for their clients and don’t roll over, in the same way a boxer understands and respects an opponent who beats them, or otherwise puts up a good fight. There is no prosecutor who respects a lawyer that will sell out his or her client, although such cowards undoubtedly make their jobs easier.

Anyway, my colleague pointed out how, after charging some poor client a fortune in preparation for all the work they’re going to do, these lawyers then really put on a show and fight everything to justify their fees, even though they had to know that by doing all this unnecessary work, they were just throwing dust in the wind.

He also did a kind of imitation of how this sometimes plays out in court, when one of these attorneys concludes they have done enough to make it look like they had really earned their fees, and that it was time to cash in and call it a day.

He pretended to be come out of the conference room after having met with the prosecutor, and screwed up his face, shook his head, and looked all disappointed. Then, he sighed, and said, “Hmmmmm; you didn’t tell me how much you staggered when you were doing the field sobriety tests,” which, as he explained it, basically meant all the “challenging and fighting” stuff had been (or would be) a waste of time.

Here’s the analogy I like to use, because it’s based on my own real life experience and it perfectly illustrates the point I want to make:

Many years ago, in our first home, my wife and I had a couple of small basement leaks. I called around and found a company to fix it. The guys that came out were really nice, and the cost of the service was rather affordable.

They found a few small cracks in the basement walls, drilled a hole in each, and then stuck in a nozzle attached to a kind of compressor that forced in a liquid epoxy-type filler. The price was around $400 back then, which, as I noted, was very reasonable.

I got to talking to the crew, and asked if the epoxy filler would really hold up over time, even though the job came with a lifetime warranty. One of the guys laughed and said something to the effect that this stuff will outlast the house itself.

As we talked more about the company’s business, they told me that were really glad to work for an honest operation They went on to explain that there are some unscrupulous contractors out there that would come to a house like mine, look around, and then try and sell a bill of goods, saying things like “you don’t know where the crack ends, or where it begins, so it’s better to dig around the foundation and expose the basement walls just to be sure.”

Of course, the cost of such a “repair” would be astronomical, but the end result would be that for all the work involved, those contractors would wind up merely injecting the same kind of epoxy filler the company I hired had done in the first place.

Without knowing that, however, and seeing all kinds of heavy equipment digging out and exposing the foundation, an unsuspecting consumer wouldn’t know that he or she had been fleeced.

In fact, you can imagine some foreman walking over the dirt piles, once the basement walls were exposed, and approaching the homeowner to say something like, “Whew; you got lucky. We followed the cracks and got worried we might have to replace part of the wall, but it turns out we can fix it all from the inside, so that will save you a couple thousand bucks.”

Keep in mind, it’s not like these operators wouldn’t do all the work of actually digging out around and exposing the basement walls; it’s just that they didn’t need to.

Nor, for that matter, am I suggesting that in some cases, such work isn’t necessary. I’m just pointing out that since it’s not always necessary, a person shouldn’t be paying for it unless it is.

To be sure, not every “ fighting” lawyer is underhanded like that, but there has to come a point when a DUI lawyer has enough experience to at least have a good idea of what work will be necessary in a case, what won’t be required, and what may or may not need be done, before simply charging some poor sap for the whole enchilada.

A good DUI lawyer must always be ready, willing and able to fight. In that sense, it’s important to keep in mind that DUI cases don’t dismiss themselves.

A good DUI lawyer must carefully examine every bit of the evidence, and should always challenge anything that’s questionable.

However, a good DUI lawyer should NOT charge his or her client, up front, to fight the battle of the century unless he or she knows what to challenge in the first place, and if it doing so has any chance of paying off.

In the legal world, a lawyer can “fight” just about everything, but the question becomes, how will that actually help the client?

That, in turn, begs the question, why pay for something that’s not going to be helpful?

Consider this:

Often enough, people arrested for Operating While Intoxicated (OWI) will question whether the police had any reason to pull them over. This is fairly normal, and many people don’t recall themselves having being “that bad” when they think back to how intoxicated they were when they were arrested.

If we could somehow go back in time, right before they got behind the wheel to drive, and ask them if they thought they were “okay,” almost every one of them would have said yes, because they honestly thought so at that moment.

Can you imagine someone answering differently? Try this one on for size:

Q: Are you okay to drive home?

A: No, man, I’m really drunk and I don’t thing I can drive, but screw it; I don’t care…

Who would ever say that?

Alcohol impairs judgment, and part of what gets compromised is a person’s ability to self-analyze and accurately gauge how drunk (or not) he or she is. Thus, people think they’re okay to drive when, by an objective standard (like a breath or blood test), they’re not.  Most people are good at heart, and a DUI does not capture who they really are.

That’s why it’s accurate to say that, often enough, a DUI just “happens.”

My team and I see this time and time again when we watch police-car dash cam or body cam videos. We’ve had lots of clients say they thought they did fine on the field sobriety tests, but when they later see themselves on the video not doing so well, many have rather quickly waved their hands and said “turn it off!”

And this brings me to my point: Isn’t it better for a lawyer to explain to the client that he or she will obtain and watch the video , and, if it does turn out that the client passed the field sobriety tests, then a challenge to that evidence can be made, rather than just agreeing with the “hopeful” client when he or she says “I think I did okay on those tests,” before the evidence has been obtained, and promising (and charging) to fight over an issue that may or may not exist?

That’s kind of like going to the doctor, complaining of a stomach ache, and being put through (and paying for) surgery – before the physician has run proper diagnostic tests and knows what’s actually wrong – only to find out afterwards that the person merely had a case of indigestion.

My team and I don’t do that, and, to be fair to my competition, neither do most lawyers.

However, there are some operations that make a very good living selling potential clients everything they want to hear, rather than what they need to hear, and a lot of that falls into the “we’ll fight everything to get this case knocked out” category.

Good luck with that.

I remember some years ago, talking with another attorney who had a relative that worked at one of those places, and him telling me that the person eventually quit due to what he called “a crisis of conscience.”

As DUI lawyers, my team and I know what to fight, and how to fight. Phrases like “We’ll fight for you” and “Fight for your rights” sound great, and they sure make it sound like someone is looking out for you, but if you stop and think about it for a moment, they don’t really mean anything unless the lawyer is fighting intelligently, and challenging evidence that’s really in question, instead of just swinging blindly (and getting paid for it).

At the end of the day, as good DUI lawyers, we know what to do, and what not to do, in order to produce the best result possible in each case we take.

If you’re facing a DUI charge anywhere in the Greater-Detroit area, meaning anywhere in Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair or Washtenaw County, be a smart consumer and do your homework. Read around, and see how lawyers explain the Michigan DUI process, and how they explain their various approaches to it. Look for honest and real information, and take the time to “read between the lines.”

When you’ve done enough of that, start checking around. You can learn a lot by talking to a live person.

All of our consultations are free, confidential, and done over the phone, during regular business hours, right when you call. My team and I are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer has told you.

We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700, or 586-465-1980.

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