Michigan Criminal Defense Lawyer Blog
As a Michigan criminal and DUI lawyer, I’m used to analyzing and talking about facts. Yet facts are not always self-evident. Founding father John Adams once famously argued in court that “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, you cannot alter the state of facts and evidence.” And while Adams was correct in a philosophical, theoretical sense, in the context of a criminal or DUI case, a “fact” is essentially something that exists as the Judge perceives it. To bring this back to the real world, we’ll look at how what clearly seems like a fact to one person can seem almost like a fairy tale to someone else, and how certain things are just “there,” and must be acknowledged, then worked through.
This becomes really important when you are the person facing a criminal or DUI charge. To give the reader an idea of what I mean, consider these two examples: First, imagine a person with absolutely no prior record of any kind who winds up facing a DUI charge after providing a .17 breath sample. The person has always been a hard working, tax paying and law abiding citizen. While he or she may want to make sure the Judge sees how out of character the Operating While Intoxicated incident is when contrasted against the whole of his or her life, the Judge may look at the person’s BAC result as more than 2 times the legal limit and high enough for the enhanced “High BAC” DUI charge, and see (i.e., perceive) little more than a walking, talking danger to society. The .17 BAC result may be inconvenient and truly unrepresentative of the person facing the charge, but it nevertheless exists as a fact.
For our second example, suppose a person is facing a Judge for the 2nd DUI in his or her lifetime. Even though any number of years may separate the prior offense from the current, it is still the case that the person is now charged with his or her second DUI overall, whether or not the case is brought as a 1st offense or a 2nd offense. While the person may have some good (and valid) reasons why this second case is also an out of character incident and does not represent a pattern of problem drinking, the Judge may see little or nothing beyond the “fact” that he or she is a repeat, 2nd time DUI offender. However you cut it, the whole 2nd offense thing is just “there,” and it must first be acknowledged before anything can be done to make it better. “Facts,” in this sense, are a matter of perception. I have long known that the right way to handle any criminal or DUI case is the to combine a thorough knowledge of the facts of the case and the applicable law with the skillful management of time, perception and science. In a certain way, controlling perception amounts to controlling the facts…
If lawyers could easily control the Judge’s perception of things, then there would be nothing left to talk about and all criminal and DUI cases would be easy to defend. The problem is that the presence or absence of certain facts usually leads a Judge to a particular conclusion. Thus, the 2nd offense DUI driver is, in the mind of most Judges, seen as having some kind of problem with alcohol, or at least being a high-risk proposition out on the road. That’s why I titled this article “Those Inconvenient Facts.” In such a case, it is a fact that a person already has a DUI on his or her record. That’s inconvenient because the Judge’s perception (conclusion) is that the person is an unacceptable risk on the road and/or has an underlying drinking problem. It becomes my job, through the management of time (this usually means slowing the case down to “buy” time) and science (meaning something like the strategic input of a substance abuse counselor through a helpful substance abuse evaluation) to manage the perceptions we’ve been talking about. As much as this may or may not be possible, it will be so precisely because of those “inconvenient facts.”
For all the special or technical knowledge as a lawyer may have, in the courtroom, when dealing with a real-life charge against a real, living person, a lawyer’s most important skill is the ability to persuade. Unless a DUI case gets “knocked out,” all the technical knowledge in the world about something like the workings of the breathalyzer machine is of no use whatsoever. At this juncture, the Judge must be persuaded (as much as possible) to change his or her understanding of the facts, or at least what they signify. This means explaining those inconvenient facts in a new light that makes sense to the Judge. In my world, and given that most of the cases I handle involve, at least to some extent, alcohol (or drugs), it became obvious to me that more was needed than just the ability to talk about breath tests and traffic stops. If I was going to persuade – to manage perceptions – I needed to be able to speak exceptionally well and with authority about alcohol (and/or drug) problems, including their development, diagnosis and treatment. On the flip side, I needed to be able so say, with unrivaled (meaning clinical) authority, that, although my client’s drinking (or drug use) in certain cases may look like a problem (or potential problem), it is not. As a result, I (figuratively) went back to the drawing board, and (literally) back to the University classroom and completed the coursework in a post graduate program in addiction studies, a field in which I’d always self-studied and had a strong interest. This enables me to speak on behalf of my client from the clinical side of things, in addition to the legal side and to produce better results for him or her.
And while that’s all well and fine, all the argument and persuasion in the world must take into account the facts. In a criminal or DUI case, those facts are always going to be “inconvenient.” Even a 1st time offender with a BAC barely over the limit will have the Judge tell him or her that the decision to drive after drinking (and getting caught at it) was poor, and that fact alone is not, in any way, convenient. It is also a fact that the Judge is going to think (and speak) this way in such a case, so we need to be able to acknowledge and then, in some helpful way, answer that.
On thing that does trouble me is the way some lawyers rake in the money by telling (and selling) people what they want to hear. When a person calls after his or her 2nd DUI arrest, the best news they could get is, of course, that the charge can be made to go away because the police screwed it up, but such an outcome is not realistic in the overwhelming majority of cases. Sure, every case needs to be examined carefully to see if it is the exception, but statistically, the percentage of cases thrown out of court is relatively small. If your lawyer spends his or her time primarily developing and honing the skills relevant in those few cases that are statistically the exception, where does that leave you if you’re not lucky enough to have one of them?
It would seem to me that both experience and honesty would require the lawyer to help a person do an honest assessment of the case. Look, it takes some time to get thick-skinned enough to be candid and direct with people. A really young lawyer is anxious for business and doesn’t want to ruin someone’s day with bad news, so when he or she get a call from someone who starts telling him or her what they think the officer did wrong, and why the case should be dropped, and how they can’t afford a DUI, the easy thing is to just go along with it, or kind of “wait” for a better time to get real. Of course, you can hold your hand out and get a lot more money put in it if you’re selling people the results they want. Being honest right out of the gate, however, is neither easy nor profitable. My conscience has truly cost me a fortune over the course of my career, but I wouldn’t change that, even for all the money in the world.
Yet to this day, I’m amazed at what people will buy. They fall for ads on TV that sell pills and gizmos that promise to melt the fat away and replace it with a 6-pack almost without effort. People pony up money to attend seminars where they think they’re going to learn how to get rich, despite the fact that none of them has ever independently met or even seen such a success story anywhere except in the “testimonial” section of whatever they’re falling for. P.T. Barnum once said that “There’s a sucker born every minute,” and while that may be true, it overlooks the fact that it takes someone who knows better to exploit that person out of his or her money. I won’t do that, and I’m richer for it, if not financially.
The long and short of this article is that the facts of your case, or any case, are probably not good if they resulted in your facing a Criminal or DUI charge. These cases are never convenient, nor are the facts underlying them. To have any real success beyond sheer luck requires acknowledging the facts, whatever they are, and then going to work with and on them. As the old saying goes, “When life hands you lemons, make lemonade.” In the context of a criminal or DUI charge, when the facts are usually, if not always inconvenient, you can either sit there frustrated, or start working your away around them.
For my part, I’m here to help. When you’re looking to hire a lawyer, you need to buckle down and do your homework. Read the articles and information various lawyers have published. Look beyond self-descriptions of competence and success, or endless testimonials and dig for information. Then, call around. When you’re ready to compare notes or hear how I address your situation, you can reach my office Monday through Friday, from 8:30 am to 5:00 pm, at 586-465-1980.