In Part 1 of this article, we began our detailed review of the steps in a DUI case. We examined what happens when a person is released from Jail, and then we looked at the various facets of the Arraignment stage. We ended by noting that the next step in a DUI (or any Misdemeanor Criminal case, for that matter) is called the “Pre-Trial.” In this second part, we’ll talk about what the Pre-Trial really is, and we’ll see what does (and sometimes doesn’t) happen at this rather important stage of a DUI case. We’ll end our discussion once we are ready to move on to the step after a Pre-Trial: an actual Trial.
This is important. Sometimes, a person facing a DUI (or any other Criminal case) thinks that their case must go to Trial. While we’ll examine Trials more fully in the next section, a Trial is what happens if no Plea, or Plea-Bargain can be worked out at the Pre-Trial stage. In other words, Trials are pretty much limited to situations where a person maintains his or her innocence (“I didn’t do that…”) or the Lawyer feels that the person’s guilt cannot be proven beyond a reasonable doubt for some reason or other.
The overwhelming majority of DUI cases are resolved through a Plea agreement, and that usually occurs as the result of a Pre-Trial Conference. In most cases, the Defense Lawyer and the Prosecutor come to an agreement called a Plea-Bargain. A Plea-Bargain means the charge the person is facing is reduced to something less serious. Typically, in a 1st Offense case, a person will be charged with OWI (Operating While Intoxicated) and their Lawyer will negotiate with the Prosecutor to reduce the charge to the less severe offense of Impaired Driving (OWVI). This assumes, of course, that there is no defect in the evidence that could lead to the case being “knocked out” or that could result in a “Not Guilty” verdict if the case actually went to Trial.
Sometimes, when the Defense Lawyer and the Prosecutor meet, they find that there is other information that might help them come to an agreement, or that maybe they are unable to come to an agreement right then and there, but at least feel that there is a reasonable chance they might find some common ground later on, if they meet again. In truth, there are loads of reasons why a Pre-Trial might just result in the scheduling of another Pre-Trial. In my Practice, this happens all the time.
The more important point is that most of the time, whether there is only 1 Pre-Trial, or there are 2 or 3, a DUI charge is resolved by agreement between the Defense Lawyer and the Prosecutor. In 1st Offense cases, as noted above, this “deal” is usually a “Plea-Bargain” tht reduces the original OWI charge to Impaired Driving. Of course, there can be no “deal” unless the person facing the charge also agrees. The Client always has the final say.
In 2nd and 3rd Offense (Felony) cases, instead of a “Plea-Bargain,” the Defense Lawyer and the Prosecutor will very often arrive at a “Sentence Agreement,” which sets out exactly what kind of Sentence a person facing a DUI charge will receive.
In 2nd Offense cases, this agreement is focused on a “no Jail” outcome. That is to say, if there seems to be a likelihood, or even a possibility that a person might be locked up, then avoiding that, by agreement, rather than leaving it to chance, is job number 1.
In 3rd Offense (Felony) cases, this “deal” amounts to 1 of 2 things:
In some jurisdictions, most notably Macomb County, it is often possible to negotiate to have a 3rd Offense (Felony) charge reduced to a 2nd Offense (Misdemeanor) charge. When that takes place, Jail is often completely avoided, right out of the gate.
In those situations where the Prosecutor cannot (because his or her boss, the County Prosecutor, has some “policy” that forbids it), or will not (because the person facing the charge has a terrible Record), agree to reduce a 3rd Offense (Felony) to a 2nd Offense (Misdemeanor), then negotiating a Sentence agreement is the first, and most important priority. If a 3rd Offense (Felony) case cannot be “beaten” somehow, and a Jail Sentence is coming, then limiting that as much as possible is of the highest priority.
and that brings me to another point. Everyone likes to hear that they can be kept out of Jail, and in all 1st Offense cases, and in many, if not most 2nd Offense cases that is fairly easy to do. This assumes, of course, that the case cannot be beaten or knocked out beforehand. However, as an honest Lawyer, I am, I believe, morally obligated to tell someone the truth, and not just sell them a bill of goods based upon what they want to hear. In other words, what someone needs to hear may be far less pleasant than what they want to hear, but what good is being anything less than completely honest?
In that sense, when a person is facing a 3rd Offense case, Jail is very real possibility, and in many cases, a surety. It’s true that in Macomb County, Jail can often be completely avoided. However, in other Counties, a person facing a 3rd Offense (Felony) that is not going to be “knocked out” somehow needs to be prepared for reality. This means Jail.
Instead, however, far too many people are willing to part with their hard-earned money and hire some slick Lawyer who makes it sound like he or she can wave a magic wand and make the whole situation go away. Yet if that were the case, then why do so many celebrities and rich and famous people NOT have their DUI’s simply tossed out of Court? With their kind of money, they can “Lawyer up” all they want.
The moral of the story is, and always has been, that if it sounds too good to be true, then it is. Still, there seems to be an endless supply of people willing to buy into what they want to hear….
In plenty of other articles, I have pointed out how much tougher Oakland County is in DUI (and ALL Criminal cases, for that matter) than either Macomb or Wayne County. This is no secret. Chances are, the reader has already heard this any number of times. This is why, particularly in 3rd Offense (Felony) cases brought in Oakland County, working out a Sentence-Bargain with the Prosecutor is so important.
Of course, in any case, finding a way to beat the case is always the best option.
And this brings us full-circle, right back to the subject of Pre-Trials. While there is a certain amount of “posturing” that takes place when the Defense Lawyer and the Prosecutor first meet, soon enough, they will rather candidly be discussing the strengths AND weaknesses of the case. You can be sure that the Prosecutor will NOT be pointing out any of those weaknesses to the Defense Attorney. It is up to the Defense Lawyer to find those weak points of a case. These things are found only by thorough and proper investigation. Let’s look at an example:
Assume Second-time Sandra is Arrested for a 2nd Offense DUI in a Detroit-area City. When she comes to my Office, and I’m interviewing her, I ask about the Field Sobriety Tests. She tells me she didn’t do any. Then, I ask what she blew into the portable (called Preliminary Breath Test, or PBT) in the back of the Police car. She doesn’t recall. Next, I ask what she blew at the Police Station, and Sandra assures me she never took a breath test at the Station. I then ask to see her Michigan Temporary Driving Permit and other documents to see if she was the subject of an Officer’s Report of Refusal to Submit to Chemical Test (breathalyzer refusal). As it turns out, she was not. I then ask if she was given a blood test, and she advises me that she was just brought in to the Police Station, printed and photographed, and left in a cell for a few hours, until she was released.
There is no breath or blood evidence of Sandra’s alleged intoxication.
Most likely, the Prosecutor will at first act as if they’ve got a decent case. To put it another way, it is highly unlikely that when the Defense Lawyer meets with the Prosecutor, the Prosecutor will promptly announce that his or her case is compromised and flawed. Imagine the Prosecutor saying to me, “Hi Jeff, nice to see you. You’re here on Second-time Sandra? Oh boy, is my evidence in that case ever weak. I guess I should just agree to dismiss the DUI right now, eh?”
Instead, the Defense Lawyer (meaning me, in the example above) will have to point out and remind the Prosecutor of the various evidentiary defects.
It is at this point where a Pre-Trial can lead to a Trial. As I noted before, there are endless reasons why a Pre-Trial might be adjourned, re-scheduled, or reset. There can be 1, 2, 3, or even more Pre-Trials. But if those meetings between the Prosecutor and the Defense Lawyer don’t produce a resolution, meaning an agreement to resolve the case in some way, then the matter must and will thereafter be decided at Trial.
Thus, Pre-Trials are meetings between the Defense Lawyer and the Prosecutor in which they discuss the issues, strengths and weaknesses of the case, with the goal of coming to an agreement to resolve (meaning a plea deal of some kind) the case without the need for a full-blown Trial.
In Part 3 of this article, we will take a look at what happens at a Trial. Our examination may help the reader understand why a Trial is almost always a last resort to resolve a Criminal case.