In my previous, 2-part DUI article, we looked at what happens at the arraignment in a drunk driving case. In this article, we’ll examine the next step in the Michigan DUI (and criminal case) process, called a pre-trial. It is important to note that a DUI case is a criminal case, albeit one that is somewhat specialized. Therefore, pretty much everything that we’ll look at here in the context of DUI cases applies, at least generally, to all other types of criminal cases, as well. We should also note that although most courts send out a notice for a pretrial date, a few courts issue a notice for what is titled “arraignment/pre-trial.” To keep things easy, a person can forget the word “arraignment” on such a notice and just show up in court with his or her lawyer, because the court date will simply be, for all practical purposes, a pre-trial.
In my DUI and criminal practice, I often find a lot of apprehension and confusion about the term “pre-trial.” At its most basic, a pre-trial is pretty much what it sounds like – a conference before an actual trial. Thus, we get the term pre, meaning prior to, trial. If that was all there is to it, then I could sign off on this article right here and say, “mission accomplished.” This simple description of a pre-trial, however, misses a lot. As we begin our examination of pre-trials, perhaps one of the most important differences to point out between it and the arraignment stage is that while an arraignment is essentially a one-shot, single-purpose proceeding (and one that is often waived, or skipped), the pre-trial itself can serve multiple purposes, and play many roles (some of them rather important) in the overall process of resolving a drinking and driving or criminal case.
A common misconception is that the pre-trial is a one-time proceeding in the court process. There can be several pre-trials in any given case. A “Pre-trial” can be identified as a stage or step in the court process only to the extent that it describes a meeting of the parties before a trial. And here’s something to calm a lot of people down – trials are rare in DUI cases. In Michigan, DUI trials are, statistically speaking, hopeless losers. What does all this mean? It means that in all DUI cases, the pre-trial is important; it’s where the action is, and will be where pretty much every charge gets worked out. So how does that happen?
All DUI and criminal cases start out with a formal legal charge, like OWI (operating while intoxicated), OWI with BAC of .17 or greater (usually called “High BAC“), possession of marijuana, or DWLS/DWLR (driving while license suspended/revoked). In practice, people hire a lawyer to “work out” the case so that they don’t get convicted of the original charge. Thus, the person charged with OWI avoids a conviction for that offense and the hard license suspension that goes along with it because his or her lawyer negotiates with the prosecutor to reduce the charge to the less severe offense of “impaired driving.” The person charged with possession of marijuana avoids getting a drug conviction on his or her record and suffering the license suspension that goes along with that because the lawyer works out a deal to avoid the charge ever going on his or her record. Similarly, a person charged with a suspended or revoked license offense avoids being convicted of the original charge and dealing with the mandatory additional license suspension that follows because his or her lawyer works out a plea to a different, less serious offense. All of these negotiations are almost always done at the pre-trial stage, where the lawyer and the prosecutor meet to try and resolve the case without the need for an actual trial down the road.
A pre-trial, then, is a conference (before trial) involving the parties. In DUI and criminal cases, it generally involves the defense lawyer going into a room with the prosecutor and discussing the case. The main idea, of course, is to work out a plea and avoid trial. In many cases, there is so much information to discuss and evaluate, and often more information to obtain, as well, so the idea of working out a plea deal at the first meeting isn’t realistic. A defense lawyer has to walk into that meeting looking for a way to “beat” the case. In other words, every bit of evidence has to be critically evaluated with the idea of finding something wrong with it. Although most cases are worked out by a plea deal, a defense lawyer cannot simply plop down in front of the prosecutor and ask, “What kind of deal can you give me?” That’s self-defeating. Instead, the lawyer has to look for every flaw and inconsistency in the evidence and how it was gathered and use that in the negotiation process. Negotiation is key in DUI and most criminal cases, but one should never negotiate from a position of weakness.
The person facing the charge is almost always required to be in court for his or her pre-trial (although he or she is not in the room with and not part of the discussions had between the defense lawyer and the prosecutor). Usually, after the defense lawyer and the prosecutor have conferred, the client and his or her lawyer will go into the courtroom and be called up to advise the Judge as to what progress, if any, has been made. In some cases, a plea bargain may have been negotiated and the court will then take up the case and move forward. In other words, the person may enter a plea. In other cases, the parties will agree to meet again for another pre-trail, and the defense lawyer will ask the Judge for a future date to return. There may be certain issues to address with the court, like relief from certain bond conditions: Often this means getting a break from breath and/or urine testing, or a person may seek the Judge’s permission to travel out of state. There is really no limit to the things that may need to be addressed between the defense lawyer, prosecutor and/or Judge at these meetings. Thus, the broad meaning of the term “pre-trial” is that it is a meeting pre, or prior to any kind of trial, although, as I pointed out, the overwhelming majority of cases are resolved without there ever having to be a trial, anyway.
It kind of goes without saying, but the bargaining card that every defense lawyer has up his or her sleeve in reserve to drive (or at least try to drive) a plea bargain is the fact that if the prosecutor won’t give anything through the negotiation process and takes an unreasonable stand, the lawyer can simply hold firm, as well, and let the prosecutor prove his or her case at a trial. Even if the evidence in a case is rock solid, trials are a huge pain in the rear for everyone. Indeed, it’s the benefit of avoiding all the preparation and work that goes into a trial that is always a consideration, if not the primary driver, in the whole plea bargaining process. However, this does not always hold true, and in some cases, the prosecutor who is in court may be prohibited by his or her superiors from bargaining at all. Sometimes, the defense lawyer will have to submit a written “appeal” to those superiors for what is commonly called a “deviation” (or “variance” in Wayne County). This is all part of the negotiation process. In suspended license cases, for example, a person who has other outstanding traffic issues may find the prosecutor more willing to deal if he or she clears them up first. In these types of situations, the case will be adjourned so that the parties can come back later and take another look at things. That next court date will also be called a pre-trial, and I’ve had many cases where there have been 4 or more pre-trials before things wrapped up.
It is also common for the defense lawyer to NOT have all of the available information (called “discovery”) by the time of the first pre-trial. In situations like that, the parties will discuss how the defense lawyer will obtain the other information, perhaps go over a few other things, and another conference will be set. Sometimes, a defense lawyer may not find out until he or she gets to court that there is information he or she doesn’t have; sometimes the prosecutor shows up and a particular case file wasn’t packed among his or her cases. There are as many reasons why there will be a second and perhaps even subsequent pre-trials as one could imagine. The astute lawyer is never in a hurry to just “wrap up” a case (although this is probably not true for the bargain-rate lawyer). We come back, therefore, to the idea that a pre-trail, broadly speaking, is a meeting of the defense lawyer and the prosecutor prior to a trial. More specifically, it is a meeting at which issues are discussed and, hopefully, resolved, so that the whole case itself may be resolved. That said, pre-trials must be used by the defense lawyer to help produce the best result in each and every case.
The best outcome in any case is obtained by combing a thorough knowledge of the facts of the case and the law with the skillful management of time, perception and science. This can require attending multiple pre-trials, having to clarify things for the prosecutor (a common example of this is when I will have my client undergo a clinically sound substance abuse evaluation to include in a deviation request when I’m trying to get a better plea deal in a DUI case), or just “waiting” for the right time to do something. Timing is always important. Indeed, “Timing,” as they say, “is everything.” In that sense, timing is usually about working out the best plea deal possible, and then making sure that results in the most lenient sentence possible. For the most part, it is a waste of time to put all kinds of money and effort into preparing for a trial. As I noted earlier on, trials are losing propositions in DUI cases, and the statistics make that point crystal clear.
There is a very good reason why so few DUI cases ever do go to trial. The Michigan State Police are required, by law, to conduct an annual audit of every drunk driving case that takes place in the state (hence the formal name, “Annual Drunk Driving Audit”) from arrest through final court disposition. Looking at the figures from 2015 (if you take the time to look at any of the other years, you’ll see that they hardly change at all over time), and although the audit doesn’t specifically identify how many people chose to fight a DUI at trial in 2015, it does make clear that out of everyone who did try, only 62 won. We also see from the 2015 audit that there were about 43,553 DUI-related arrests. No matter how you measure it, that comes out to an acquittal rate of just .144% (that’s zero-point-one-four-four percent, meaning less that fifteen tenths of one percent!), which probably explains why trials are rare, and successful trials, at least for those accused of drunk driving, are rarer still. This means that the bulk of the effort at pre-trial should be directed at working out the best plea deal possible.
Knowing how to manage all of this to produce the best outcome is, in large part, a matter of intuition and experience. I’ve seen plenty of experienced lawyers who just don’t have the ability to “read” a situation (i.e., intuition) or who otherwise don’t understand that strength can come as much from what one doesn’t say as it does from fighting loud and hard. I’ve also seen plenty of younger lawyers who have good instincts, but not enough experience to use it well. It’s like anything else; you must have a certain aptitude or talent to begin with, but then you have to learn to use it and keep training it. When I was in grade school, I desperately wanted to draw, but all the lessons in the world wouldn’t have made up for my lack of natural artistic ability. On the other hand, I’ve always been able to communicate rather well, and, if the reader will permit me to brag a little, my articles are pretty decent. This article, for example, marks a point beyond my 700th such installment; I may not be any kind of Pulitzer prize winning author, but my skills have certainly been refined by the sheer act of writing so much (I must note, however, that I do most of my own editing, as well, and that accounts for the missed typo’s and grammar and syntax errors a writer’s eyes inevitably pass over without notice no matter how hard he or she tries to proof his or her own work). In other words, either a lawyer “has it” or not, and, unfortunately, there’s a lot of “not” out there.
The easiest way to avoid the “nots” is to take the time to read articles like this and see how lawyers explain things. Whatever else, if all someone puts up are platitudes about being “experienced” and “tough” and “aggressive” and whatnot, then there probably isn’t a hidden storehouse of diplomatic skill there. You also have to read between the lines, as well. I’m (obviously) an explainer, and I therefore work well with people who have questions and like to get the whole picture much better than I get along the silent type who just wants to dump a case in my lap and let me figure it all out. I can do that, but it’s my natural inclination to explain what’s happening at each step. No matter how the reader does it, narrow down your choice of lawyers, then pick up the phone and call around. I have the friendliest, most helpful staff you’ll find anywhere. All of my consultations are done over the phone, right when you call; we’re here to help. If your DUI (or criminal) case is pending anywhere in Macomb, Oakland or Wayne County, you can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 586-465-1980 and at least get my take on your situation.