Michigan Criminal Defense Lawyer Blog
This article will be about what really happens when a person gets a 1st Offense OWI (DUI). I have plenty of articles about the legal and strategic considerations involved in dealing with this charge in the Drunk Driving section of this Blog. Beyond that, there are plenty of other sites that tout the possibility of challenging every bit of evidence obtained and every step taken in a DUI case (for the price of a King’s Ransom) in the hope that the whole case can be dismissed. Given the statistical unlikelihood of that, I thought it’s time to talk about what the person facing the DUI can really expect to go through. Again, this article will focus much less on the legal implications, opting instead to examine the practicalities and realities that lie ahead.
The reader facing a DUI has undoubtedly dealt with a number of these realities so far: Being put in the Police car, being taken to Jail, taking the Breathalyzer test, undergoing the Booking and Printing, and finally being released. From there, most people have to go and get their car back.
Most of the time, unless there is a sober person in the car with a valid License who can drive it away, the Police will have the DUI Driver’s car towed to an impound yard. In some cases, the County Prosecutor will put what can essentially be called a “hold” on the car, and sets a price for the Driver to get it back. When that happens in Macomb County, for example, the fee is usually $900 in a 1st Offense DUI, and $1800 in a 2nd Offense DUI. Even when there is no Prosecutor’s “hold” to deal with, there will be a towing and storage charge that needs to be paid to get the car back.
Of course, those first few hours back at home are stressful. Your Driver’s License has been taken, and instead you have this “paper License” called a Michigan Temporary Driving Permit. The car is in the driveway or garage with a paper plate instead of the old metal plate. If it isn’t, it’s sitting in some storage yard waiting to be picked up. When there’s no Prosecutor’s “hold” on the car, storage charges accumulate by the day. The location of the car is usually indicated in the papers the Driver receives from the Police upon their release.
There are plenty of those papers, too. Usually, but not always, a person is given a Ticket (Citation) for there DUI. Then there’s this large, pink sheet that looks like a big store receipt called an “Evidence Ticket” that was generated by the Breathalyzer machine.
If a person refused to take a Breath Test, they most likely will have had their blood drawn. In those cases, they’re sent home with a copy of the Warrant signed by a Judge or Magistrate allowing their blood to be taken, and another paper called an “Officers Report of Refusal to Submit to Chemical Test.”
This is one of those points where I must stop and advise the reader to get a Lawyer. If a person has received a Notice of Refusal to Submit to Chemical Test, they have 14 days to either file for a Hearing regarding that refusal with the Secretary of State, or their License will be Suspended for the next year. Even if that happens, it’s still possible to go to the Circuit Court in the County in which they person lives and get a Restricted License.
Whatever the situation, the person is looking at this pile of papers and contemplating the mess they’ve got on their hands.
Sitting there, they’re trying to figure out what’s next. It’s at about this time that most people start thinking “Lawyer.” This article is NOT about that part of the process, so I’ll simply leave the reader with what I think is the best advice anyone can give: Do your homework. Read Lawyer’s Blogs and Websites, listen to the suggestions of friends and family, and then, pick up the phone and make some calls. Finding the right Lawyer is a process, and part of that process is not only finding a competent and good Lawyer, but one who is a good fit for the person who needs help.
At some point, the Lawyer will have been hired. In most Macomb, Oakland and Wayne County Courts, if the Lawyer is hired before the Arraignment date (often the date on the ticket in the box for “Appearance Date,” and sometimes listed as “on or before,” “within 10 days,” or “within 14 days”), the person facing the charge will not have to go to Court.
To make this clearer, that first Court date is, whether it is identified as such or not, an “Arraignment Date.” An Arraignment means a person shows up in Court to be told exactly and specifically what Charge or Charges are being brought against them. In addition, they are give a form called an “Advice of Rights” which lists all the Constitutional Rights they have as a Criminal Defendant. These include the Right to be Presumed Innocent, the Right to Remain Silent, and the like. Then, a Plea (which should always be “Not Guilty” is entered for the person. Finally, the Judge or Magistrate who conducts the Arraignment will set the Bond amount needed for the person to be released from Jail. Obviously, if a person has already been released, that issue has already been taken care of. Most often, at the time a person is released from Jail, they post a certain amount of money, typically an amount between $100 and $500, which is called an “Interim Bond.”
For those that were released from Jail, and as I noted, in most, but not all Courts, the Lawyer will file certain papers which will “waive” that Arraignment, meaning tell the Court that the person would rather just skip showing up for that proceeding and have the “Not Guilty” Plea entered in their absence. The person will then not have to go before a Judge or Magistrate, and all that Advice of Rights and Bond stuff won’t happen.
When an Arraignment is waived, both the person facing the Charge and their Lawyer will wait for Notice from the Court for a Court date. That 1st “real” Court date is called a “Pre-Trial.” In some Courts, it’s called an “Arraignment and Pre-Trial,” but it’s the same thing. That’s the fist time the Lawyer and the Prosecutor meet to discuss the case, and go over the facts.
In some cases, the Lawyer will go to the Pre-Trial Conference and request another return date to Court. Often, this is to examine or obtain certain evidence in order to see if there is a reasonable basis to mount a successful challenge to it. In other words, to see if there is an honest chance to get the case dismissed somehow.
In most cases where the likelihood of getting the case dismissed on some technicality appears slim (and that really means in most cases, period), the Lawyer and the Prosecutor will talk about ways to work the case out short of actually going through a full-blown Trial, where witnesses are called and Guilt or Innocence is determined by a Verdict handed down by a Judge or Jury. Most often, this is accomplished by arriving at a Plea Bargain. The vast majority of DUI cases are wrapped up this way.
A Plea Bargain in an OWI case usually means the more serious OWI Charge gets dismissed in exchange for the person Pleading Guilty to the less serious Charge of “Impaired Driving.” In another Blog article, I detail the specifics of the difference between the more serious OWI and the less severe Impaired Charges. For our purposes, the most significant difference is that a person will NOT lose their Driver’s License, but instead only have it Restricted to Work, School, necessary Medical Treatment and anything the Court Orders for 90 days. Beyond that, an impaired carries 4 point (rather than the 6 of an OWI) on person’s Driving Record, and the Fines and Costs are significantly less. Also, the dreaded Driver Responsibility Fee imposed by the State is only $500 for 2 years with an Impaired, whereas an OWI carries a Fee of $1000 for each of those 2 years.
Except for those few cases where there is some real doubt as to a person’s guilt, or where the Police can be challenged for stopping the Driver, or for the method by which they obtained the evidence, most people will wind up entering some kind of Plea. As of about 2 weeks before this writing, a new “Superdrunk” Law went into effect in Michigan which carries stiffer penalties in those cases where a person’s Breath or Blood test results are .17 or above. How those cases will routinely be handled is an open question at this point. It is generally agreed that nothing in that new Law prevents a Plea Bargain from a .17 or above OWI down to a regular Impaired Driving (OWVI).
Most people with a Competent DUI Lawyer usually end up getting a deal for the less severe Impaired Charge. Most of the time, this happens at the Pre-Trial. After they go before the Judge and enter their Plea, the Judge will tell them that they will have to come back 2 more times: First, without their Lawyer for a legally-required alcohol screening test (PSI), and then, a second time with their Lawyer in order for the Judge to Sentence them.
Most people are, understandably, concerned about what will happen to them. Thus, most people care what their Sentence will be. In my various Blog articles on the subject, I have been very clear, and I’ll be likewise clear here: Whatever happens to anyone facing a DUI is a DIRECT RESULT of how well or poorly they do on the alcohol screening test. This test is REQUIRED by Law. The test is scored numerically, and generally speaking, the higher a person scores, the more likely they are to have, or to develop an alcohol problem. The lower they score, the less the probability of either of those 2 things.
The Law requires that after those test results are calculated by the Court’s Probation Department, a written report and recommendation be submitted to the Judge advising him or her what to do to the person facing the Charge. In every Court Metro Detroit Court except the 72nd District Court in Marine City, beyond taking the alcohol screening test, the person facing the Charge is interviewed by the Court’s Probation Department in order to help with making the legally required Sentencing recommendation.
That recommendation is essentially the blueprint for what’s going to happen in any case. In other words, whatever is recommended is pretty much EXACTLY what the Judge is going to order. This is why doing as well as possible on the alcohol screening test and at the Probation interview is the single most important part of any DUI case. In my office, I’ll usually spend 2 to 3 hours with my Client on this part of the case alone. There is simply no substitute for preparing the Client for what they are about to undergo. This is especially true since their performance at this critical juncture has such a huge impact on the outcome of their case.
Perhaps the best reward for that time spent is going over that Report and Recommendation with the Client and being able to point out how their responses on both the alcohol screening test and the interview are used as a basis for it.
Somewhere around 3 to 6 weeks later (usually about 4 weeks in most Courts), the person and their Lawyer will return for the Sentencing. As I noted, what happens to the person at that Sentencing is usually exactly, or darn close, to what the Probation Department has recommended in their report, often called a “PSI” (for Pre-Sentence Investigation).
In the part 2 of this article, we’ll pick up with preparing for that PSI and alcohol screening test, and take a look at some other things anyone facing a DUI can expect to happen.