Michigan Criminal Defense Lawyer Blog
In part 5 of this series about the steps in a DUI case, we undertook a rather in-depth analysis of the alcohol assessment testing process, including how these tests are scored by the Probation Officer who administers them. We saw that there is an almost endless number of such tests, but that the Courts most often use one of only several, each of which is simply “scored” like a high-school math test, and requires no interpretation beyond charting that score on a grid called a “scoring key.”
In this sixth part, we will continue with a review of steps 6 and 7 of the PSI process:
6. Completion of the Sentencing Recommendation by the Probation Officer 7. Reviewing and correcting the PSI and Recommendation
We will cover the 8th and final step (Commenting on the PSI and Recommendation to the Judge at Sentencing), in the seventh and final installment of this series.
In reviewing steps 6 and 7, will see how that alcohol assessment score is used by the Probation Officer in the larger process of creating the Pre-Sentence Investigation (PSI) Report and Sentencing Recommendation that will ultimately find its way into the Judge’s hands.
6. Completion of the Sentencing Recommendation by the Probation Officer
Having gathered and reviewed the person’s background information, conducted a face-to-face interview, and then scored the alcohol assessment test, the next step in the PSI process is now completely in the Probation Officer’s hands – writing the Report and Recommendation that will ultimately be read by the Judge and used in deciding what a DUI Driver’s Sentence will be.
Those readers who have followed this entire series will recall me pointing out, early on, that in a 1st Offense DUI there will be NO JAIL. This means anyone who hires a Lawyer in a 1st Offense DUI for the primary purpose of staying out of Jail is wasting their money; they aren’t going to Jail in the first place. The Sole possible exception applies only to a DUI case pending in the 48th District Court in Bloomfield Hills. Otherwise, jail is just NOT on the menu.
Instead of worrying about a Jail Sentence that will not be coming in a 1st Offense DUI case, a person should worry about those things that will be coming, which, as we noted, will be handed out by the Judge based almost entirely upon the PSI Report and Recommendation.
In 2nd Offense DUI cases, all the work put into preparing for the alcohol assessment and Probation interview is more or less “in the blender” as the Probation Officer begins to write up his or her Sentencing Recommendation. If a person has been properly guided from the outset, and has been thoroughly and well prepared for the whole PSI process, then a better, meaning more lenient Recommendation, is far more likely than if they had not. If they have just blundered into the whole thing, then they can only sit and wait to see what happens.
Yet for all of the importance of the PSI and the Sentencing Recommendation, the way the Judge sees things, or is made to see things, especially in a 2nd Offense case, is also extremely important. Here’s what I mean:
In a 1st Offense Drunk Driving, a DWI Driver is not going to Jail, with the one exception explained above. In 1st Offense cases, all the preparation for the PSI is focused on avoiding being Ordered to complete classes and/or counseling, or to be tested any number of times per week, or to be required to Report to Probation monthly. Thus, the first and only goal of readying for the PSI process in a 1st Offense case is to minimize consequences and not have a bunch of things to do (and not do).
In 2nd Offense cases, while minimizing consequences is still an important goal, it really is secondary, first and foremost, to staying out of Jail. For all the discussion we’ve had in the numerous installments of these articles, I think it is safe to say that pretty much any and everyone would trade some classes and counseling for 30 or 60 (or more) days in Jail. Accordingly, the first priority in preparing for the PSI process in a 2nd Offense is to obtain a Recommendation that does NOT call for any Jail time. Everything else is kind of “icing on the cake.”
And it is at this point, when the Probation Officer sits down to write up his or her Sentencing Recommendation, that all the previous work and preparation will have paid off, or not. There is nothing more that can be done to influence the written Recommendation that will be sent to the Judge about exactly what terms and conditions should be imposed upon the person at Sentencing.
The type of Report the Probation Officer writes varies from Court to Court. Some Reports include far more biographical data than others. Other Reports focus more on the alcohol assessment test and the result obtained by the person facing the charge. Still others very briefly summarize those things, and elaborate more on the conditions the Probation Officer feels should be imposed upon the person by the Judge as part of their Sentence.
Whatever information the Report contains, its main objective is to provide a detailed outline of what the Probation Officer, based upon the information he or she has collected about the person and the impression left by that person after the face-to-face interview. In a good result, that might mean just paying fines and costs and not having to do any classes or testing or being stuck on any kind of Probation. In a not-so-good result, it might mean classes and counseling and testing and Reporting Probation and all kinds of other stuff. In a worst-case scenario, such as a 3rd Offense (Felony) DUI or in a 2nd Offense “gone bad,” it might mean a blue or orange jumpsuit and a new cellmate.
7. Reviewing and correcting the PSI and Recommendation.
On the day of Sentencing, the DUI Driver and his or her Lawyer will Appear together in Court. By Law, before the actual Sentencing can take place, the person and their Lawyer MUST review the Pre-Sentence Investigation Report and Recommendation. They are required to review it not just so that they can look at it, but because the Law requires that a Defendant have the opportunity to find and point out any errors in the Report itself, and have those errors corrected before the actual Sentence is imposed. An example here can save a lot of explaining:
Say Second-Time Sandra is before a local, Detroit-area Judge for Sentencing on an OWI 2nd Offense charge. In the Report, it is noted that Sandra has 2 prior marijuana offenses, and left high school in the 10th grade. The Report claims that she is unemployed, and living with her boyfriend, who is on Parole from State Prison and is also unemployed. The Recommendation is that Sandra get her high-school diploma or GED, find and maintain employment, and test for alcohol and drugs at least 3 times per week.
The problem, as it turns out, is that the report is wrong. It seems like the Probation Officer forgot to change screens or something on the computer, because Sandra has never had a marijuana charge before, she not only graduated high school, but had 1 year of community college, and has worked for the same company for 7 years, and has a good job. While she does date, she has never been out with, much less does she live with an ex-con who is on Parole.
This information needs to be corrected. Although the example above is a little extreme, errors are routinely found in PSI Reports. The Attorney for the person makes a note of every such error or thing that needs to be corrected. This information will be presented to the Judge, on the Record, in Court, once the Sentencing begins.
It is, however, the Recommendation part of the PSI Report and Recommendation that most people are worried about. Even as a DUI Lawyer in his 22nd year of doing this, my eyes naturally go right to the Recommendation when the Court or Judge’s Clerk hands the PSI to me to review with my Client before our case is called. No one can help it; everyone wants to know what is going to happen.
Yet there is no “correcting” to be done to the Recommendation. It is neither correct nor incorrect. Instead, the Recommendation is to be discussed with the Judge, on the Record, when the Sentencing is underway. This “argument” or “speech” (some say “schpeel”) by the Defense Lawyer is called “allocution.”
It is what Lawyers are known for. It is what separates good Lawyers from mediocre Lawyers, and all of them from truly great Lawyers. As intelligent and crafty as any Lawyer might be, it is the ability to speak charismatically and persuasively, and to completely captivate the listener, that is the ultimate skill of a Lawyer, like a DUI Lawyer, who makes his or her living in Court. A Lawyer who is not captivating and charismatic, and who plans on going to Court to represent someone, is like a Surgeon who shakes with Parkinson’s disease and plans to perform delicate surgery upon a patient.
Yet day after day, I sit in Court and hear some Lawyers (nice people, I’m sure), drone on with boring, monotonous rambling speeches to the Judge that make me just want to scream “SHUT UP!!!!” I can only wonder if the Client actually compared what such a Lawyer has written, if anything, or listened to that Lawyer and compared him or her with any others, before concluding, “Yep, this is the one for me.”
Before we move on to the final part of the PSI process, and really the final step in a DUI case, which involves just what we’re broaching here, commenting upon the Recommendation in Court, please allow me to make one final observation. It’s about me. If the reader has taken any time to read this series of articles, or any of my other nearly 300 blog articles, then my passion for my work and the way I talk about it should be rather clear. I try to avoid overt “you need to hire me” sentiments in my articles. I’ve seen that in other blog articles, and to me, it seems to detract from the educational or informational value of any such piece.
Still, I would be doing my self a disservice if I was overly modest to the point of pretending what I’m about to say isn’t true, and miss this moment:
I am the single most charismatic and persuasive speaker I have ever heard in a Courtroom. Period. On a bad day, I can sell air conditioners to Eskimos. On a good day, I can convince them to buy another just for backup. Speaking is what I do best, and I do it better than anyone I have EVER heard in a Court of Law. It was in large part this ability to communicate so clearly and effectively that led to me to a career in Law in the first place. I competed and won in Forensics and was involved in journalism and writing throughout my entire education. This skill defines me. Accordingly, at least this one time, I will not pass up on an opportunity to sell myself a little (or a lot, depending on how you perceive this rant…), before we move on.
Let me ask (albeit rhetorically), has the reader found ANYTHING like this blog, anywhere? Has the reader been able to find any other site where so much straightforward, real-world information is available?
I write the way I speak. If you want to know how I present myself in Court, you can pretty much figure that out by what I’ve presented here.
I know I’m not the Lawyer for everyone. No one is. Still, whatever other Lawyer the reader may ultimately hire, even if that person is a top-shelf, incredibly good extemporaneous orator who can captivate a Judge and hold his or her attention like it’s second nature, then that person might, just might, be as good as me. In all probability, however, whatever their accolades and accomplishments, probably not. While that may sound cocky, it is not meant to be. However, the person who underestimates their abilities is no less misleading as the person who overestimates them. Would anyone think of hiring an eye Surgeon, or a plastic Surgeon, for example, who merely described his or her skills as “okay? Who wouldn’t want a Surgeon who confidently said “I’ve seen the work of all the other Surgeons in the area, and there is no one better than me.”
Okay, patient reader, now my entirely self-centered, self-promoting and self-satisfying sales pitch moment has passed. Thanks for your indulgence.
On that note, we’ll conclude this sixth installment. We’ll conclude in Part 7 with an examination of how all of this comes together when the PSI Report and Recommendation is reviewed in Court and “discussed” with the Judge and what really takes place at the final part of any DUI, the Sentencing.