In my role as a Michigan DUI lawyer, I have never had a single client who didn’t hope his or her drunk driving charge could just go away. It is, and always should be the goal of every lawyer, in every DUI case, to find a way out of the charge. While it is true that most DUI cases don’t get thrown out of court, it is also true that most basketball players don’t score every time they make a shot, either, but that never stops them from trying. This analogy is pretty universal, because every surgeon hopes for success, every airplane pilot wants a smooth landing, and so on.
The key to success in a DUI case lies in the effort. Hard work is all well and fine, but smart work is always superior. If you have to dig a 10-foot by 10-foot hole at least 6 feet deep, you’ll do a lot better using a backhoe and laser measuring tool rather than a garden shovel and a yardstick. Because my practice is concentrated in DUI cases and driver’s license restoration appeals from drinking and driving convictions, my team and I work on these issues all day, every day. You can’t get that depth of experience from a law practice that also includes a much broader spectrum of criminal charges and/or other kinds of cases.
One of the most important tools needed to beat a DUI charge is the lawyer’s mindset. This lesson came to me many years ago from a very successful criminal trial attorney who explained that when a defense lawyer begins examining the evidence in a case, he or she should assume there are problems with it, and it’s his or her job to find them, rather than looking at the evidence to “see” if there’s a problem, or if something obvious “jumps out.”
In other words, you can either confront a problem with the determination to find the solution, or you can look at it and merely hope to find a way out. This may not sound like much, but this way of thinking has a profound effect on how we do things in my office, and the results we produce. We know what to do and how to do it in order to bring about the best outcome possible in every OWI case we take, but it all starts with a determination to find a way to beat the charge because you’re convinced it’s in there.
This will make more sense when it’s put into context, and I’ll do that by tying it into a few other things that are important. There are several points I frequently try to make in my various DUI articles, and 2 of them are directly relevant here:
First, avoid falling for (and, by extension, paying for) what you want to hear from a lawyer, rather than what you need to hear.
Second, success in a DUI case is always best measured by what does NOT happen to you.
Because everyone wants to get out of a DUI charge, it’s very attractive and simple for a lawyer to market his or her services to that desire, because it’s human nature to be drawn to what one wants to hear. Although it’s not a glamorous example, consider that, after a certain age, everyone should have a colonoscopy. This is solid advice and a potentially life-saving medical reality. Because this isn’t a very sexy subject, though, you don’t see much money spent on TV advertising for butt-scopes.
By contrast, however, there are endless ads for diets, gizmos, and products that promise to make you look beautiful, fit, and younger. Nobody dies because they have age lines around their eyes, but people are far more interested in hearing about how to look good than they are about colon cancer. Thus, the more important reality is ignored in favor of what sells.
Honesty in marketing sounds great in the abstract, but do you think any casino is going to blow its advertising budget disclosing that, yes, in fact, the vast majority of people who show up to gamble leave with less money than they had when they arrived? Obviously, no casino could stay in business if most people won, and they wouldn’t be anywhere near as profitable as they are if winning was anything other than a rare exception. Still, when you see or hear an ad for a casino, it’s about being lucky and winning big.
The idea of simply getting out of a DUI case appeals to the potential consumer, even though, in all honesty, it doesn’t happen nearly as much as those who market themselves on the idea make it sound.
In the DUI world, the idea that some lawyer can “beat” a case is attractive enough to draw attention. Because people fall for it, many lawyers use it as their primary marketing strategy. I have resisted the temptation to go along with that, simply because I want to be truthful and upfront with the people I speak to. I won’t tell a person what he or she wants to hear instead of what he or she needs to hear.
No matter how one tries to frame it, the simple, cold truth is that most DUI charges don’t get thrown out of court.
In terms of beating a case at trial, it is worth noting that the real numbers involved go almost completely unmentioned on the internet. However, if I can find them, then the kind of client to whom I hope to appeal to can as well.
By law, the Michigan State Police are required to track and confirm what happens from the point of every DUI and DUI-related arrest to the point of final disposition by a court in the state. Every single case in every Judge’s caseload is followed and recorded, without exception. This is part of what is called the Annual Drunk Driving Audit.
The numbers remain incredibly consistent from year to year, but to put this in perspective, there were 33,220 DUI-related arrests in 2017.
Out of all of 33,220 people arrested, only 35 of them went to trial and were found “not guilty.” 35 out of 33,220 is .10%. That’s point-one-zero, or one-tenth of one percent. Put another way, that means that 99.9% of all DUI arrestees did NOT beat their case at trial.
Forget the terrible percentages and focus on the raw number for a moment: in 2017, out of all the people (33,220 of them) arrested for a DUI, a mere 35 were acquitted.
You can be sure these were cases that involved things like a lack of hard evidence that the person charged, was, in fact driving the car or where the breath or blood test result is demonstrably unreliable. No one will get off by presenting a defense to his or her BAC score by saying “there’s no way I could have drank that much.”
Within the week that this article was written, I was retained in a new DUI case where a passerby had seen my client arguing with someone at the side of the road. That person called the police, and when they arrived, they found my client sitting in the passenger seat of the car with a BAC over the legal limit.
When I was first contacted, I actually became excited, because this is the kind of stuff a DUI lawyer, like me, lives for. I can’t get into more of the case now, and there is still a lot I’m waiting to learn, but the chances of getting out of this case are a heck of a lot better than one where the person was pulled over for weaving, or where the police showed up after an accident and found the person who had obviously driving, sitting behind the wheel.
On my site and within my various blog articles, I try to distinguish my office as a DUI practice, rather than a firm that, within its practice, handles DUI cases. This is important because there are probably all kinds of things that we automatically do in a DUI case that many lawyers have never even thought about. This is a key part of working smart, and it actually helps make things better for our clients. This is where honestly matters, and we tell it like it is, rather than try and make everything sound great in order to get retained.
Another approach is the kind of lawyer who attacks and fights everything. That kind of “shotgun” approach generates a lot of work, and, in turn, a lot of fees, but the end result, more often than not, is a lot of wasted effort and money. Judges grow deaf to the arguments from this breed of lawyers who object to everything.
To the unaware client, it looks like such a lawyer is doing everything he or she can to fight the case, but to anyone who knows, he or she looks more like a flailing amateur going up against a professional fighter. This analogy actually holds up well, because just about anyone can get knocked out by a lucky punch, and every once in a while, these characters do get lucky…
But luck, in a DUI case, is more about what is and isn’t there, in terms of evidence, rather than the skill of the lawyer. A good lawyer doesn’t rely on luck. Sure, anyone should be happy for a lucky break, but not as a case strategy or a defense. Imagine this conversation:
Lawyer to client: “My plan in your case is to get lucky.”
Client to lawyer: “What if we’re not lucky? What’s your plan B?”
Lawyer to client: “To at least not be really unlucky…”
As crazy as that sounds, that’s pretty much how the aggressive, buzz-saw type lawyers operate.
The fact is that most DUI cases are worked out through a plea, or, better yet, a plea-bargain. What the reader may not understand is that, in the quest to find what’s “wrong” with the case, things are often discovered that, while maybe not enough to cause a Judge to throw the whole matter out of court, do help in the bargaining process.
These things would NEVER be found if the lawyer didn’t assume they were there, and set out to find them from the get-go. The emphasis here is on assuming there is something wrong with the evidence, and looking until it’s found, rather than just “looking” at the case to see if something jumps out. That’s a strategy on the same order as hoping to be lucky.
As a point of interest, it has been my consistent experience, as a DUI lawyer with nearly 30 years on the job, that the more someone wants to tell me how the police screwed up, the less likely it is they did. Very often, the kind of thing that gets a DUI case knocked out is buried in the details. This is why, as a lawyer, I begin my analysis of the evidence figuring there is something wrong with it, and that I can use that to beat the charge, instead of just waiting for something obvious to scream for my attention.
I really cannot overstate the importance of that initial mindset, and how it affects the whole path of a case. My team and I begin every case with the idea that there is a way out of it, and our task is to find it. In order to get out of a DUI, you have to find your way out of it.
As a lawyer, you either search for it or hope you get lucky. Given the reality of DUI cases, and the how unlucky it is to be facing a DUI charge in the first place, relying on good luck is about the worst defense plan you could have. Even when, as most often happens, there isn’t a way to get the whole case thrown out of court, the things we find as we comb over the evidence can be used to make things better.
It’s worth saying again: success in a DUI case is best measured by what does NOT happen to you. This is accomplished by starting out with the mission to find a way out of the case.
If you’re facing a DUI charge anywhere in the Metropolitan Detroit area (meaning anywhere in Oakland, Macomb or Wayne County) and are looking to hire a lawyer, be a good consumer and read around. Then, check around. All of my consultations are confidential, and done right over the phone, when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. You can reach us Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 586-465-1980. We’re here to help.
Our consultations are free and our cases are handled on a “flat-fee” basis with upfront fees!