Michigan Criminal Defense Lawyer Blog
For successful people, a DUI charge carries some additional considerations beyond just staying out of jail. I have made clear a million times over, within many of my DUI articles and on my website, as well, that with only one possible exception in the Greater-Detroit area, you are simply NOT going to jail in a 1st offense DUI, so any efforts directed at avoiding what isn’t going to happen anyway are both misdirected and wasted. For some individuals, being charged with OWI (Operating While Intoxicated) doesn’t really pose a threat to their livelihood or reputation, while for others (like teachers, nurses, physicians, engineers, etc.), the idea of anyone so much as finding out about it is a nightmare. Rather than play into those fears, however, I believe that an import part of my job as a DUI lawyer is to make clear that most of them are unfounded, and help the client deal with those consequences that will or are likely to occur.
First, there is the issue of finding a lawyer. No, this is not going to be a “call me” piece, and I hope that someone reading this anywhere can apply what we cover in his or her local area. And that, of course, segues right into on of the more important lessons here: hire local. My DUI practice, for example, is limited to the courts in Oakland, Wayne and Macomb (as well as a few surrounding) Counties. Wherever you live, don’t drag in some lawyer from across the state, or from too far away, who is not a regular in the court where your DUI case is pending. No matter how you cut it, you are either going to pay for a lawyer’s experience, or else you wind up paying his or her tuition.
I don’t want this to seem like an attack on lawyers, but the reader has no doubt already discovered that there are endless firms and websites, all pretty much with the same messages about having experience, being tough and aggressive, offering free consultations, and urging you to “call now.” Most of these operations are trying to scream why you should hire them louder than everyone else. As you look for a lawyer, you should see past that, and instead be seeking real and useful information. As you do that, there will inevitably be a few practices that stand above the rest in terms of actually providing it. Accordingly, you should be able to easily explain why you’re thinking about hiring them beyond the fact that they are telling you to do so. If you can’t articulate why you are interested in some particular lawyer or firm, then why are you considering them? In fact, amongst the best lawyers, the question really becomes “why should we take your case?” rather than why you should hire them, because such practices have clearly defined who they can most help and aren’t just waiting to take anyone who can pay their fee. As you look for a lawyer, you should keep that in the back of your mind. In my office, for example, we use our initial telephone contact with a potential client as a two-way screening opportunity. While some lawyers have no real choice other than to accept any offer of engagement that presents itself, the more capable sort will steer clear of potential clients who raise any kind of red flag, like the “know-it-all,” the angry person, or someone who already has a lawyer, among others.
While there are numerous considerations involved in representing a person facing his or her 1st DUI, I believe that it is of paramount ethical and moral importance for me, as an honest lawyer, to ascertain and look out for those interests the client may not even know he or she has. In other words, if Nervous Nellie only seems concerned about staying out of jail, would it be right for some lawyer, who knows she’s not going to jail anyway, to do the minimum in handling her case, knowing that she’ll be a happy client and think he really earned his money by protecting her from her worst fear simply because she doesn’t go to jail? Of course not! What if the DUI charge Nellie is facing would impair her ability to drive in a way that would affect her job, but because she’s so frightened of jail, that’s all she really asks her lawyer about? Isn’t it the lawyer’s obligation to find out about Nellie and protect those interests she may not know she has (like protecting her driver’s license), or may otherwise overlook by virtue of being overwhelmed and emotionally stressed?
One good practice suggestion I remember from a long time ago was to answer even the questions the client doesn’t know he or she has. As technical and far into the legal weeds as this can go, the real standard here is the good old golden rule: treat others as you would wish to be treated.
Every DUI arrest begins with some initial police contact. It is important for the lawyer to examine the reason for that contact, and evaluate its propriety. As a general rule, the police car dash-cam video should be obtained and watched in every case. Most of the time the police don’t screw things up so badly that a Judge is going to angrily throw a case out of court (that only happens in cheesy TV shows), but sometimes, what is observed by watching that video can be helpful in many (and sometimes even unanticipated) ways to make things better for the client as the case progresses. Thus, obtaining and evaluation the evidence is important, as is challenging it, if it’s compromised in a way that so that can be done successfully. Remember, a lawyer can challenge just about any and everything, in the way a homeowner can paint just about any and everything, but just as it would be inadvisable to paint your coffeemaker and your windows, so is it pointless to unsuccessfully challenge evidence.
Without a doubt, THE most significant part of any DUI case is what happens to you. By this, I mean what does the Judge order you to do, and not to do. You can count on being ordered to not consume alcohol while the case is pending, as a condition of bond, and also as a condition of probation. While there are a few (as in very few) courts that may allow a 1st offense DUI to be wrapped up with nothing more than the payment of fines and costs, almost every court requires a person to stay out of trouble and not drink for a while, and that’s done while on probation. Probation can be non-reporting, or even write-in, for those that don’t live near the court, but for most people, probation requires checking in monthly with a probation officer. Obviously, everyone would rather not have probation, but the trend is and has been more consequences for a DUI rather than less. As I write this, there is increasing momentum to reduce the legal limit for OWI from .08 to .05; it wasn’t that long ago that it was .10. Things are changing in a way that is (properly so) less tolerant of things like drunk driving and sexual harassment.
What happens to you, meaning what the Judge requires you to do by way of any classes, counseling or treatment, is a direct result of a formal, written sentencing recommendation made by the court’s probation department. This recommendation (think of it as more of a “blueprint” rather than a “recommendation,” because just about every Judge, in every court, follows it either to the letter, or very closely so) is drafted after you meet with a probation officer, provide specific information about your background and the circumstances surrounding your arrest, and, most important of all, after you take a written alcohol assessment test. This “test” is numerically scored; the higher you score, the more likely you are to be perceived as having, or at least being at risk to develop, a drinking problem. What’s more, it’s not like all this happens in a vacuum, either, because the court system has an inherent “alcohol bias” and we must be mindful of that. Your test results, the information obtained from you, and the probation officer’s impression of you, as well as his or her ideas of what you should undergo to make sure you don’t drive drunk again is all put into that sentencing recommendation sent to the Judge.
Whatever else, no Judge is going to deviate in any significant or wholesale way from that recommendation. This means, as the lawyer, my job is to make sure the client does well and procures a more favorable (as in lenient) recommendation. No matter how charismatic or well-spoken the lawyer, showing up to court on the day of sentencing and doing nothing more than arguing against the recommendation is a losing strategy.
It is important to point out that it has been repeatedly shown that DUI drivers, as a group, have a higher incidence of alcohol problems than the population at large. This means that when you walk into the courtroom as a DUI defendant, you are automatically and already part of an “at risk” group. That, in turn, means the court is likely, just as a prophylactic measure, to order you into alcohol education classes or counseling. Thus, you need to be very thoroughly prepared to take that alcohol assessment test. Just about everyone in a 1st offense DUI will say something like, “I’m not a big drinker,” or “I don’t have any kind of drinking problem,” and will think they have nothing to worry about in terms of the written alcohol assessment. That’s not how it works; remember, these “tests” are also screening for a risk factor, and the fact that you’re taking the test as a result of a DUI charge already pumps up that risk factor.
There is much more to this than the somewhat over-simplified version above, but the takeaway is that a client needs to be taught the do’s and don’ts of taking the screening test and meeting with and providing information to the probation officer. This is something I have focused upon over my entire career, and have observed how those efforts clearly and directly pay off in terms of the what does and doesn’t happen to my clients. To make sure I do this as well as possible, I went beyond self-study (although I did a lot of that over the years) and actually completed a formal, University post-graduate program of addiction studies (in the classroom, not online). I use my knowledge of how alcohol problems develop, and how they are diagnosed, and, ultimately, treated, in order to protect my clients. I see, in every single DUI case I handle, how the preparation time I spend with my clients positively affects the outcome. For everything one can say on this subject, the bottom line is that “success” in a DUI case is best judged by what does NOT happen to you. I make sure my clients get and have to deal with as little as humanly and legally possible.
It’s not uncommon for people with a certain social standing, or at a certain “level,” to think of it as an asset in when facing a drinking and driving charge. After all, if you’re an ER nurse, don’t you just seem less likely to be in trouble again than Snake, the biker? The short answer is “no.” I make it a point to insure that who you are as a person does matter in a DUI case, but the court’s biggest concern, the risk of recidivism (re-offending), has been shown to exist (or not) independent of things like socio-economic or educational status. My practice, for example, is comprised almost entirely of solidly middle-class and higher-earning individuals, and they are no more or less likely to pick up a second DUI than anyone else, even though they may have more disincentive to do so, or are smart enough to know better.
This makes proper guidance key in producing the most lenient outcome possible in any given case. Anyone looking for a lawyer should eschew the meaningless sales pitches like “stay out of jail,” or “tough and aggressive” and look more for information, and information specific to your situation. On this blog, for example, I’ve examined how anyone with a professional license, like a physician, dentist, or nurse, must report his or her DUI conviction to LARA, the Michigan licensing authority, and I’ve also made clear that, at least in 1st offense cases, there will almost never be anything more made of it than a notation that it was properly reported.
For more information about the DUI process, or how probation works, search this blog. Within the more than 300 DUI articles I have written, I cover every step of how OWI cases work in the Detroit area.
If you are facing a DUI charge, do your homework, read around, and then check around. If your case is here, in the Metro-Detroit area (meaning in any court in either Wayne, Oakland, Macomb or a nearby surrounding county), and you are looking to hire a lawyer, you can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at (586) 465-1980. All of my initial screenings are done over the phone, right when you call. We’re here to help.