Michigan Criminal Defense Lawyer Blog
Tying in with my last article about probation violations, the inspiration for this installment comes from a recent experience handling a DUI probation violation in a case that also involved a possession of marijuana charge. I was in one of the indisputably “toughest” Courts in Michigan, and certainly in the Detroit area. My client, who, after being charged with both drunk driving and possession of marijuana, had used a court-appointed lawyer, was facing his first probation violation. It became clear to me early on that much of the problem, and “problem” will become an important word here, was the utter lack of proper representation in the underlying drinking and driving and marijuana cases, which, when coupled with the tough court where the case was pending, combined to exacerbate a potential nightmare. The remaining background here is simple; the client had tested positive for drinking while on probation.
Because he used a court-appointed lawyer, his “representation” essentially consisted of a few minutes’ conversation in the hallway with the legal defender who, as is usually the case, had sat down with the prosecutor before the Judge took the bench and gone through his or her whole pile of cases, quickly agreeing to a “deal” for each. In this client’s case, the “deal” wasn’t any kind of deal at all. He wound up pleading straight up guilty to both charges. Had a retained lawyer been involved, things would almost certainly have worked out better. At a minimum, had I handled his case, I would have gotten rid of the marijuana charge, or at least kept it off of his record, and the DUI charge would have almost certainly been worked down to something less severe. This assumes, of course, that the evidence against him was solid in the first place. I have no way of knowing whether the case against him was good or bad; I came in at the point where the charge had long ago been resolved and he was already on probation, ordered to not drink, and regularly tested to make sure he did not. Despite all that, he did pick up a drink, test positive, and then get violated.
The whole bias of the court hearing this case, with respect to DUI cases in general, and, by extension, this client in particular, is that every DUI is strong evidence of an underlying drinking problem. There are some courts that seem to try to outdo other courts in terms of making it seem like any and every DUI offender had a troubled relationship to alcohol, but the court on this case takes the cake in that area. One could argue that the whole judicial system has some degree of this bias, and I certainly agree that there is more than a little truth to this characterization. Beyond all that, however, my client found himself in a court that simply doesn’t recognize that a DUI can sometimes be an out-of-character, one-shot deal for someone.
This is another problem that is, for all practical purposes, systemic in the DUI world. Sometimes, a DUI can just “happen.” Of course, a person who gets caught for driving over the limit certainly deserves to be made to understand that doing so is poor judgment, and that it shouldn’t happen again, but the modern, more “progressive” trend is to practically assume that instead of being a simple (if not a very expensive and regrettable) mistake, being arrested for drinking and driving almost proves positive of an underlying problem with alcohol, or that a person at least needs to be “treated” like it is under the misguided belief that doing so has some preventative value. What’s worse, this shift in thinking has occurred slowly, over the last couple of decades, without much, if any resistance from anyone, principally because very few people involved in the whole DUI process have any formal knowledge about alcohol problems. Except me: I know all about alcohol and substance abuse problems, not just because I am a DUI lawyer, but also because I am formally educated in the field of addiction studies. This provides me with the unmatched ability to protect my clients from being seen as having a problem they don’t. I know how someone can develop a troubled relationship to alcohol, how such problems are properly diagnosed, and what kind of treatment options are available, much less viable, for any particular person.
My client’s prior court-appointed lawyer clearly didn’t understand any of this, and the client, therefore, wound up getting hammered with all kinds of counseling, rehab and testing the first time around. Then he gets caught drinking. To be fair, from the Judge’s point of view, even though she had been ordered all that treatment, here comes my client, months and months later, testing positive for alcohol, in direct violation of the court’s order. Having long ago concluded that his drinking was problematic, it would have been a fool’s errand to try and convince the Judge that she was wrong about that, especially in light of my client’s direct violation of her order to not consume any alcohol and to test regularly to make sure he didn’t. Even so, you can see how the failure of effective representation at the outset of the case had a ripple effect that was felt long after.
And this really goes to the point I am trying to make here. My client was already saddled with the assumption that he had a drinking problem, and I had no choice but to walk right into that. If I had been his prior lawyer, we would have prevented that from happening in the first place. Before you go thinking that I’m naïve, given his DUI conviction followed by a violation for drinking contrary to the court’s order, it turns out that he had a single beer that someone bought for him on his birthday, confident (but wrong) that he wouldn’t be tested the next day. This doesn’t make what he did right, but it does at least provide some explanation for why he did it. Now, when you step back and look at his legal situation, you can’t help but cringe. He was charged with DUI and possession of marijuana. His cut-rate, court-appointed lawyer did nothing more in the case than stand next to him as he pled guilty to everything, and this took place in a court where there is a strong bias to see any DUI driver as having a troubled relationship to alcohol. In retrospect, that was a lose-lose situation.
Of course, his court appointed lawyer didn’t meet with him for a few hours, like I do in every DUI case I handle. I do this to make sure that when any of my clients appear for their legally required alcohol screening test and probation interview, he or she will know what to expect and how to answer the questions that would be asked by the probation officer. As a result of the utter failure on the part of his court-appointed lawyer to look out for him, or otherwise properly handle the case, my client was simply counted in as part of the larger, “troubled” herd and it was assumed that his drinking was, in fact, problematic. He was ordered, amongst other things, to not drink alcohol and test, as required, to prove that he wasn’t. Finally, several months down the line he violated his probation by testing positive for alcohol.
That’s when I got the call. My job would have been much easier if I had been on the case from the start, but I could only work with what I was given. Even so, my client walked out of the courthouse with me that day, instead of being led away in handcuffs. Still, there was no getting around the reality that the Judge saw the positive alcohol while on probation as proof that she had been right about him having a drinking problem. Founding father Benjamin Franklin is famous for pointing out that, “An ounce of prevention is worth a pound of cure.” In the context of a DUI, it is paramount to avoid a “cure” you don’t need. To do that, however, you cannot simply hope that things turn out differently, you must make them turn out differently, and that will never happen with a court-appointed or cut-rate lawyer. I always point out that just paying a lot of money to a lawyer guarantees nothing more than paying a lot of money. The secret?
Do your homework. Read the articles that DUI lawyers have put up on their blogs and/or websites. Most of all, pick up the phone and call around. I could go on and on about what I think you should do, but the larger point is that you can pretty much figure this out by simply taking action and doing a good investigation on your own behalf. Just make sure you never confuse high price with quality, never confuse a bargain with anything other than cutting corners on service, and always be a smart consumer while never failing to listen to your gut. If you need to hire a lawyer and want to know how I will answer your questions, give my office a call. We’re open Monday through Friday, from 8:30 a.m. until 5:00 p.m., and can be reached at 586-465-1980.