Michigan DUI Essentials – It’s About Context – Part 1

How does a DUI fit into your life? While we’re at it, let’s ask how a serious illness, job loss or just about any other catastrophe fits into your life. The answer, no doubt, is something like, “Not very well,” or “Not at all.” This 2-part article will not be another promotional lawyer piece about all the things that can, in theory, be wrong with the evidence in your OWI case. Nor will it be about how some super lawyer you’ve never heard of before can (for lots of money, and with lots of disclaimers) swoop in and magically make everything just “go away.” Instead, we’re going to focus the lens in both directions – in, and out – to look at a DUI in various “contexts.” Specifically, we’ll look at a DUI charge in the close-up context of a person’s life, in the mid-field context of the court system, and in the broader context of society in general. When you take a step back and think about it, this is exactly how DUI cases work, anyway, so in that sense, we’re actually just looking at how a drunk driving charge plays out in the real world.

Big Pic 1.3.jpgThe first question any normal person has, after being arrested for a DUI, is, “What’s going to happen to me?” Sure, there are a lot of other issues and questions to work through, but you’re primary concern right out of the gate will always be about your own well-being. This really focuses on the impact of a DUI in the context of your life. A conviction for a drinking and driving offense carries certain consequences – some certain, some possible, and others unlikely – that have the potential to create huge life problems for you. You need to know what to do regarding your driver’s license, your employment, including time off, and how to prepare yourself financially. These are the things that rightfully deserve attention first.

Yet to fully understand the things that will happen to you, those that might, and the things that probably won’t, you need to understand how DUI’s work in the broader, more general context of the court system. Your local Metro-Detroit area court is part of the larger Michigan court system, which in turn is part of the larger American court structure. The court system is as much political as anything else, so the influence of things like Mothers Against Drunk Driving (MADD) is a very real force and has had a very real impact on the way the courts handle, and in turn, perceive people brought in for DUI charges. This, then, directs our attention to the still larger context of DUI in society, and the corresponding relationship between those 2 things. In this article, to borrow a phrase from modern culture, we’re going to “keep it real” instead of going off on some boring, heady and over-intellectual examination of the context of a DUI. To really understand the impact of a DUI in your life, we kind of need flip things around and look in reverse, starting with the big picture first, and then zooming in to see how a drinking and driving charge can and will affect you.

Unless you’ve been in a coma for the last 20 years, you cannot help being aware of the public concern and resultant focus on drunk driving. Things have definitely gotten tougher over the years; you might hear an older person say something like, “They’re really cracking down on that.” That’s absolutely correct, if not even a bit understated. There is no one suggesting driving drunk is a good idea, and it is certainly taken a lot more seriously now than it may have been a mere quarter century ago. The simple fact is that MADD has a worthy goal. It goes way beyond the purpose and scope of this article to take issue with what, when, why or how MADD has done what it has in the DUI world, because the relevant takeaway is that things are, in fact, tougher these days when it comes to DUI cases. A now-retired circuit court Judge once said to a client of mine, who had violated probation in her 3rd DUI case by getting caught drinking, “Society has lost its sense of humor for people like you.” That simple observation really captures the essence of how the world thinks about DUI drivers. We all know driving drunk is bad and dangerous and wrong; we all want it to stop, and we’re mostly all in favor of “getting tough” on drunk drivers – until we’re the person facing the charge. Then we want the world to understand that this not who we are nor what we’re about, but rather an unfortunate, out-of-character incident that captures us in a single moment of bad judgment.

As a Michigan, and specifically a Metro-Detroit (meaning Macomb, Wayne and Oakland County) DUI lawyer, this is the world in which I live. I understand that a DUI can just “happen” to anyone. The impact of MADD, however, is a societal shift from thinking about a DUI as a regrettable instance of bad judgment to a choice that could and should have been avoided, and which must be prevented from happening again by the imposition of consequences. Say what you will, but it is upon this landscape that I must operate to protect my client. To be unaware of one’s surroundings is always a mistake, but when we’re talking about a DUI case pending in a court of law, the failure to see and understand the larger context (i.e., “the big picture”) is just plain stupid, and dangerous, to boot.

Because you’re the one facing the DUI, you can’t really be objective about it. This even applies to lawyers, who, when in trouble, hire other lawyers to help. If there’s a caution here, it’s that some DUI lawyers can get so wrapped up in all the legal technical stuff that they develop a kind of tunnel vision, and are unable to see the bigger picture. Larry the litigator may get so worked up about whether his client was read his or her breath test rights before submitting to it that he forgets the Judge is losing patience about all this in a case where the client was arrested for a DUI after rear-ending someone. Proper handling of a DUI case requires the lawyer to strike the right balance (and that balance is different from Judge to Judge) between keeping an eye on the ball, and seeing the bigger picture.

The court system is made up of elected Judges, so it tends to reflect public opinion. Of course, the law is the law, but when DUI laws get “tightened” by the legislature in response to public demand or high profile cases that provoke these changes, Judges take notice. One of the best examples of this took place a few years ago in Michigan, when a new DUI law got rid of the 10-year look back period for 3rd offense felony DUI charges. Prior to 2007, a person had to rack up 3 DUI’s within 10 years to be charged with a felony offense. In a particularly tragic case, a guy had 3 prior drunk driving convictions picked up his 4th overall when he killed a young girl and was thereafter convicted of drunk driving causing death. He did 10 years in prison, then got out, and picked up yet another DUI (his 5th). As bad as he was, he could only be charged as a 1st offender because of the way the rules regarding time between DUI’s worked, prompting an outcry that led to the passage of what is called “Heidi’s law.” This law stripped away the time requirements for a 3rd DUI to be charged as a felony and provided that any 3rd DUI charge in a person’s lifetime, completely regardless of the dates of the prior 2 offenses, qualifies as a felony.

I keep using the word “context,” and it seems to have become my new favorite word, but how this played out in the courts was all about context. At first, the new law was seen as a technical thing. Everyone was used to the 10 year period, so the guy standing before a Judge with a 20 year old DUI and an 11 year old DUI was perceived, at least at first, as someone who had gotten a bit “unlucky” regarding his DUI record and the fact that he was now, under the (then) new law, being charged as a felon. That’s because, at first, the “context” was the longstanding rule that the 3rd DUI had to take place within 10 years of the 1st in order for the offense to be a felony.

But things change, ideas change, people change, and so did the “context” of a 3rd offense felony DUI.

Fast-forward 8 years. Now, the guy with 2 really old DUI’s is often seen as just a straight up drunk who should be charged as a felon because he’s had a drinking problem forever, and has been putting people at risk for far too long. In other words, that guy with the 20 and 11 year-old prior DUI’s who, right after the law changed, got a little bit of sympathy for getting caught up in the then new felony law isn’t getting any sympathy now. He’s perceived as getting exactly what he deserves. Remember, a Judge is usually a sort of one-person microcosm of the community that elects him or her, reflecting general societal attitudes. Judges want to get reelected, and that won’t happen by taking stands that go against the prevailing public opinion. This is why no Judge ever sticks a marijuana offender in jail. Our current way of thinking simply doesn’t favor that.

To someone facing a DUI, this all means that the court sees you very much through the eye of public opinion, and when it comes to drunk driving, that’s pretty low. I know most lawyers don’t get into this kind of analysis, but this is hugely important and certainly accounts for how and why I can “save” my client even in the most damning situations. Extraordinary results require extraordinary vision. A Judge is going to perceive a DUI driver in the same way the community at large does, which is to say that everyone wants there to be less drunk driving. And here’s the kicker: There isn’t anyone out there advocating that we go easier on drunk drivers, until it happens to them, or someone close to them. Then, everyone wants to be treated as some kind of “exception.”

It has been validated too many times to count that, as a group, DUI drivers have a significant and statistically higher incidence of alcohol problems than non-DUI drivers. That’s such common knowledge that no one disagree with it – except perhaps the person facing the DUI charge. If a person is going to have any chance of being seen and treated by the courts system as an exception to having, or being more likely to have a drinking problem, then he or she is going to have to prove it. This takes us into our final, close up examination of the context of a DUI in your life.

We’ll leave off here, and come back in part 2 to pick up right at the point where a DUI interests with your life, and how it can, and will, affect you.

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