High BAC in Michigan (OWI with BAC of .17 or Greater) – Part 2

In part 1 of this article, we began examining the rather serious implication that anyone facing a Michigan High BAC charge has some kind of drinking problem. While this is always a concern in High BAC cases, it really applies in any case where a person’s BAC result is elevated. This makes sense, given that it has been consistently shown that, as a group, DUI driver’s have a statistically higher incidence of alcohol problems than the population at large. That makes things worse for anyone facing the more serious “High BAC” OWI charge specific to having a bodily alcohol content that’s more than twice the legal limit.

menu-drinks-background-xxx-300x268We concluded part 1 by pointing out that about the worst thing a person can do is exactly what just about everybody does, in fact do, and that’s insist that they’re not a big drinker, that they don’t drink that much, or not that often, and/or that, on the day of their arrest, they really didn’t have that much to drink. As I pointed out, the people who work in the court system hear this same kind of stuff so much that they don’t really pay attention to it, and, moreover, don’t believe it anyway. This kind of minimization of one’s drinking will do nothing to actually help a case.

Here’s the thing most people fail to understand: minimizing one’s drinking, both overall and on the day in question, isn’t any kind of strategy that will help in a High BAC charge. Although it’s almost instinctive for people to make self-declarations that they’re not a big or frequent drinker, that they only had a few, or that they weren’t “that drunk” when they were driving, such statements are actually counter-productive to the outcome of a case.  This may seem counter-intuitive, but it’s also true.


Sure, it seems natural to want to make things sound better, but in the same way that it’s not good to scratch a mosquito bite, a person has to resist the urge to try and “explain” themselves. Here’s something you can take to the bank: you will NEVER meet someone who had a DUI (much less a more serious one, like a High BAC) who talked themselves into making it better.

Instead, let your lawyer do the talking – period.

This should be one of the very first things a lawyer makes clear to a High BAC client. While it’s somewhat understandable that younger or less experienced attorneys may not know better, or that those who are struggling for business may not want to tell a potential client to be quiet for fear of losing him or her, that kind of spineless head-nodding and clueless agreement only makes things worse.

In many of my other blog articles, I have explained that a person should look for a lawyer who will tell them what they need to hear, rather than what they want to hear. This is very important, because it’s just plain wrong for a lawyer to be afraid to address the things a client may not like to hear out of fear of losing business. The only way to help someone is to deal with the issues at hand, not ignore them.

Thus, a lawyer needs to confront the reality of a case head-on. Let me illustrate this point with a simple example –

Imagine that Tipsy Tina, who tested out with a BAC of .21, is standing before the Judge for her OWI with BAC Greater than .17 (High BAC) case:

Judge: On that date, Ms. Tina, how much did you have to drink, and over what period of time?

Tina: I had about 3 glasses of wine over, say, about 3, maybe 4 hours, your honor…

Judge: Ms. Tina, your BAC was .21. You could NOT have tested out at .21 unless you chugged a bottle of wine in about 2 hours. Do you want to re-think your answer here?

To be clear, even though the reader might think so, the Judge is almost certainly not getting mad here; he or she is no doubt used to this kind of minimizing behavior. There is kind of an old joke in the DUI world that most people who get arrested had “2 drinks,” because that’s the most common answer given to the police when they pull over a DUI driver, and something I have seen, quite literally, in thousands of police reports.

Now, contrast the above exchange with this one:

Judge: On that date, Ms. Tina, how much did you have to drink, and over what period of time?

Tina: Oh, well, I’m not proud of it, but I’d guess about 7 or 8 glasses of wine over several hours, and there were a few shots in there, too….

Instead of making herself look bad, which is what most people fear doing when answering such questions honestly, Tina just gave herself a huge credibility boost. In the first place, the Judge KNOWS  that Tina drank a lot to get to a .21. Beyond that, by being honest, she has separated herself from most everyone else.

Moreover, whatever her relationship with alcohol may or may not be, she doesn’t look like someone trying to minimize it, a behavior that is basically expected of someone struggling with his or her drinking.

Next, consider the context in which the DUI arrest happened. If Tina was to explain that she was out with her good friends and just over-indulged, it gives rise to concerns about the role that alcohol plays in her social circle.

If the DUI happened on the way home from her bowling league, then one would wonder if that isn’t something of a risky activity for her.

By contrast, if the whole situation was completely out of the ordinary for Tina, and she got roped into going out with people she doesn’t normally hang with, then the concerns noted above wouldn’t be as immediate.

Every facet of a DUI incident, including where a person was, who they were with, and what they were doing, is relevant to the case, and must be taken into account, examined, and then explained in the most helpful way possible. Moreover, a good DUI attorney will take the time to get to know his or her client, and the client’s lifestyle, as well.

Tina may be a homebody-type person, and that can be helpful, but she may also be employed in something like the hospitality business (we’ve had clients who have been wine and liquor distributors and salespeople), and that has to to be worked around.

However, this must be done strategically, not reflexively.

This can get complicated, as there are numerous plans of action that can be employed to properly handle a High BAC case, and a High BAC client. What’s more, a lot of them are counter-intuitive. In addition, the list of things a DUI lawyer and client should do is almost endless, and, of course, largely dependent on the particular facts and circumstances of the case.

Whatever else, though, the “I don’t drink that much” approach isn’t any kind of plan.

No matter how else you cut it, any person charged with High BAC walks into court as a VIP member of what is already seen as a high-risk group. Therefore, just insisting that one is not a big or frequent drinker is a complete non-starter in terms of helping produce a better outcome.

Instead of facing this reality, it can be rather profitable for a lawyer to distract a potential client with the so-called “shiny objects” and talk about all the things that could be wrong with the evidence, and make it out like getting the case dismissed is really a matter of hiring him or her. Unfortunately, lots of people line up and throw money at those who tell them what they want to hear.

The truth, though, is that those cases where the evidence gets screwed up so badly that a Judge will toss the whole matter out of court are the exception, not the rule. While a lawyer must examine the evidence in every DUI case under a microscope to try and “beat” the case, the simple truth is that most cases are going to be settled through a plea, and a DUI lawyer needs to know how to actually make things better for every client, and how to best handle the vast majority of real world cases.

If you’re facing a High BAC charge, this means you need to confront the realities of your situation head-on, rather than showing up, like everyone else in the same boat, and muttering the same “explanations” that you’re not a big drinker, don’t drink that much, and only had a few.

Among the few guarantees in life, those tactics are guaranteed NOT to work. Any lawyer who either doesn’t know better or is too timid to make that clear should be avoided like the plague.

If you’re facing a High BAC (or any DUI) charge and are looking for a lawyer, do your homework. Look for real information. Read how lawyers explain things, and explain themselves. There is absolutely no reason to be anything other than a good consumer, so take your time and check around.

When you’ve done enough of that, start calling around. If your case is anywhere in Wayne, Oakland or Macomb County, give my office a call. All of our consultations are free, confidential, and, best of all, done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700 or 586-465-1980.

Contact Information