In the previous article, I talked about simplifying things if you’ve been arrested for a Michigan DUI. Instead of wasting time over-analyzing and over-thinking things like the traffic stop and analysis of the evidence, I pointed out of all the DUI arrests in Michigan, less than 1.5% are thrown out of court, and that less than .15% (that’s correct – POINT one five percent) go through a trial and win by a “not guilty” verdict. That means that under 1.7% of all the DUI cases get “knocked out” of court somehow, and that more than 98.3% of them go all the way through the system. Of course, everyone wants to be part of that small, lucky group, but your invitation to that club is not a matter of choice beyond making sure you hire a qualified DUI lawyer who doesn’t miss anything. No matter how badly anyone wants to, if you’ve been charged with a DUI offense, you have less than a 1.7% chance of beating it. Accordingly, once the evidence has been carefully examined, and assuming that your case is like the 98-plus percent of all the others, it becomes critically important to focus on making things better. In this article, I want to look at what that really means. To avoid turning this article into a textbook, we’ll skip the in-depth analysis and instead take a quick (but good enough) look at some simple scenarios to make our point.
For purposes of this installment, we will assume that all of the evidence in our scenarios has been examined and that the charge is legally solid. We also need to assume (because it is a deep subject best taken up in another article) that each situation has been (or will be) properly negotiated, and that the best plea bargain or plea deal possible has been worked out. In some cases, for example, a charge like OWI with a BAC of .17 or greater (High BAC) can be negotiated down to Operating While Visibly Impaired (Impaired). In other cases, there are no plea bargains that can be negotiated. In some situations, a 3rd offense (felony) drunk driving can be negotiated down to a 2nd offense (misdemeanor). While negotiating the best plea deal is important, it is important to remember that the plea itself is not the be-all and end-all of DUI cases. I often point out that success in a DUI case is judged by what does NOT happen to you. I think the reader would agree that if Tipsy Tina manages to get her OWI charge reduced to Impaired driving, but winds up in front of the one Judge in the Detroit area who puts most 1st offense DUI drivers in jail, followed by 24 months of demanding, reporting probation, she didn’t do as well as Swerving Sam, who despite not getting any kind of plea bargain on his OWI charge, only had to pay fines and costs and stay out of trouble for a year of non-reporting probation.
No matter how it happens, we come to a point where the plea is what it is. Whether a person is ultimately convicted of a 1st offense Impaired driving, a 1st offense OWI, a High BAC charge, a 2nd offense OWI, or a 3rd offense OWI, the most important thing thereafter is to limit the consequences he or she will endure. This is the point of our discussion. Let’s be even more clear here: The real goal in every DUI case (and every criminal case, for that matter) is to minimize punishment. This is done, in each and every case, by combining a clear knowledge of the facts and the law with the skillful management of time, perception and science. As honest as I am, however, and for as much information as I put up on this blog, I must also be somewhat circumspect and reserved here. I’ve seen enough of the things I have been the first to write about subsequently recycled on other lawyer’s websites. While imitation is the sincerest form of flattery (and I am genuinely flattered by that), I’m not about to teach every other lawyer with internet access how to get better results like mine. I spent more money than the price of a car on my post-graduate education in addiction studies in order to help my DUI clients enjoy better outcomes in their cases, and be able to guarantee to win every one of my driver’s license cases. Perhaps most of all, and this is about the only polite way to say this, magicians don’t tell how the magic is done. That’s a nice way of saying that there is more than this to what I can say here. As the magic shop tells it, “The secret is told when the trick is sold.” I always want my clients to know exactly what we’re doing, and why, but much of that is best reserved for our private conversations. Having said that, we’ll be as candid here as we can…
A good DUI lawyer will first want to become familiar with the facts of a new case. It drives me crazy when people say things like, “My friend had the same thing happen to him,” or “My brother went through a case just like mine.” No two cases are alike, and the person who beaches his or her car in a ditch with a .16 BAC in one jurisdiction may still be better off than someone who is pulled over for speeding with a .09 in another place. Also, who you are as a person matters, as well. Beyond the objective facts of the case, and that means everything involved in the events leading up to the arrest and through the breath or blood testing, a lawyer needs to know the law, and not merely the main statute regarding DUI charges, but the case law and procedure and rules and everything else that is in any way relevant. That’s why I am implying that the right lawyer for a DUI case is a “DUI lawyer,” and not just some lawyer who “does” DUI cases. Many people (including lots of lawyers who try to handle a wider range of cases) don’t know that even in a 1st offense Impaired Driving case, where a person does not lose his or her regular driver’s license, if he or she holds a CDL (commercial driver’s license) it must and will be suspended for a full year. We’ll come back to this example regarding CDL’s again, momentarily, when we talk about the management of time.
As a general rule, the passage of time never hurts someone charged with a DUI. If nothing else, facing the Judge for sentencing in 90 days, instead of 30 days after arrest, means you have an additional 60 days of staying out of trouble to your credit, and human nature automatically soothes our anger about things that happened farther back in the past, rather than more recently. Besides, lots of good things can happen as time elapses. Although not likely, the arresting officer can accept a job transfer to somewhere else (anybody for Hawaii?) or even retire (I’ve had it happen in a DUI case not that long ago) and therefore become unavailable. This is an easy way to find your way into that lucky minority of people who manage to beat a DUI charge. The larger point is that even if you don’t catch a major break by stretching a case out, nothing bad will happen, and you at least get the benefit of a longer “cooling off” period before you ultimately stand in front of the Judge for sentencing.
To continue with our example of the Commercial Driver’s License (CDL), imagine that a person works for a company and has to drive for his or her job. One of many real life cases like this I had involved a fellow who drove a garbage truck. In the sanitation business, it takes time to work one’s way up from loader (the guys who ride on the back and loads the truck) to becoming a driver. Being a driver is a position of seniority and it pays more. My client was going to lose his CDL, and that meant that he could no longer drive the truck. By delaying his case for a while, he was able to sock away some money while he worked with his management so that he could go back to being a loader for a year. Even though he had to accept a decrease in pay, he did not lose his seniority. Knowing that he was going to have to deal with a pay cut, he used the time we were able to delay his case to save as much money as he could to cushion the financial blow. This example provides a very general idea of how the management of time can affect a case in a positive manner.
The management of time can also involve the management of perception. When we let as much time as possible pass between the actual arrest and the day a person charged with a 1st offense DUI stands in front of a Judge to be sentenced, it helps make it look more like an isolated incident in his or her life. Similarly, for those dealing with a 2nd offense or a 3rd offense DUI, we can use as much of that time as possible to get them firmly into counseling or treatment (and/or AA or any other support group they may want to try). I’ve sat in court a millions times and watched someone charged with a 2nd or 3rd DUI go before a Judge accompanied by a lawyer who mindlessly says something to the effect that his or her client “knows she (or he) has a problem and is willing to get help for it.” That’s neither impressive nor helpful, especially when compared that to the client who stands before the Judge either being right in the middle of, or having recently completed counseling or treatment. In some cases, you can imagine that a Judge who may have been considering some time in jail will decide not to impose it because the person is busy with his or her treatment, or is doing rather well in aftercare or follow-up. Perception can be managed. If a person looks to be on a drunken roll, with one arrest following another, it doesn’t present a good picture. By contrast, if a DUI looks like an isolated incident that just “happened,” that presents a much better picture. For those charged as habitual offenders, managing time is often key to managing perception. The person who just sits around and does nothing will never have the same advantage as the person who is proactive about getting some kind of help. It is, after all, a matter of perception…
None of this should come as a surprise when you think about it. Even if some lawyer has never put the pieces together this way, all my analysis does here is connect the dots. Time and perception are kind of ever-present, if perhaps not-so-obvious, components of every DUI case. Science, however, is also part and parcel of every case. In the most obvious sense, there is the science of breath and blood testing, but as I pointed out in the previous article and at the outset of this one, given that less than 1.7% of all DUI cases end up being dismissed or resulting in a “not guilty” verdict, that’s not a very productive line of inquiry overall. Instead, the science that really matters is that which helps us understand how people are at risk to or otherwise develop a drinking problem, and how such problems are PROPERLY diagnosed and treated. This goes directly back to what I call the “alcohol bias” (which is in and of itself a matter of perception) that is institutionalized in the court system. Anyone facing a 2nd or 3rd DUI understands how the whole system is tilted toward the idea that everyone facing a DUI has a drinking problem and needs classes, counseling, education, testing and treatment. If you’re testing as a condition of your bond, then you’re getting a taste of that right now.
If the system is tilted toward the idea that anyone facing a DUI usually has a problematic relationship to alcohol, who is going to counter that and protect you from it? And using what? Even the best lawyer needs to do something more than just deny it. It’s not very helpful for a lawyer to simply say, “Your Honor, my client does not have a drinking problem.” What good is that? That’s where the real science comes in, and where my specialized education gives me a huge advantage. We’ll skip the analysis, but the bottom line is that of the things “looked at” by the courts, through their various probation departments, particularly when it comes to the legally required alcohol assessment that a person must undergo prior to being sentenced by the Judge, many of them are not actual clinical criteria and are wrongly considered.
One of my favorite examples of this occurs when a person lands his or her car in a ditch or snowbank. I’ve seen countless of these situations where this happens and the person didn’t have a particularly high BAC result (and the BAC itself is not used in clinical assessments), but the probation department has nonetheless tried to support its treatment recommendation (made all too frequently because of the inherent “alcohol bias”) by saying something like, “Given the serious nature of the incident….” The average person or lawyer can’t really respond to that. A simple denial is worthless. After all, the facts of the case already sound bad enough, and in that sense, the term “serious” sounds kind of right, so what’s to say? Well, someone with a clinical background, like me, can promptly point out that neither “the serious nature of the incident,” nor even the incident itself, is any kind of clinical consideration. Take a look at the actual clinical symptoms taken from the DMS-V (Diagnostic and Statistical Manual 5th edition) reprinted in Psychology Today. Often, if I find myself in this position, I must, in the short time I have, quickly and persuasively explain all this to the Judge. Now I know the Judge isn’t going to let me be the lawyer AND the therapist, so I argue that the best thing to do is to have a real therapist, meaning a genuine clinician, conduct the alcohol assessment and suggest what, if any, kind of education or counseling my client may need. By doing this, I have spared my clients countless hours (and dollars) of unnecessary counseling and treatment.
And then there is the science of recovery. This is usually only relevant in 2nd or 3rd offense cases, but it can play a front and center role regarding everything from testing, sentencing, probation and sobriety court. Different recovery processes (meaning counseling and treatment) work for different people. AA is a great program – perhaps the greatest and ONLY way to get sober – for some people. In fact, AA is probably NOT a good match for most people. That may run counter to conventional thinking, but it has been empirically validated in study after study. Who would have thought that using a stimulant drug like Ritalin would be an effective way to treat ADD an ADHD? That, too, runs counter to conventional thinking, but research has proven it, as well. It’s easy for a Judge to follow the tried and true path of sending everyone to counseling or rehab and AA, but it’s a huge waste of time and money for many people. This is not just about getting lenient results because it is an indisputable fact that some people do far better seeing a counselor one-on-one every other week than they do attending a program three times a week and having to hit 2 AA meetings a week, in addition.
In this article we have barely scratched the surface of how combining a knowledge of the facts of the case and the law with the skillful management of time, perception and science is used to produce the best outcome in DUI cases. There are countless more examples than those above, and an almost, if not infinite, number of various combinations thereof. For all the technical knowledge that goes into this, “how” to manage everything is also a matter of instinct. You can read all the books out there about how to ride a bike, but how to turn a corner is far more about feeling your way through it than thinking your way through it.
At the end of the day, you hire a lawyer to protect you from the negative consequences and potential punishment that a DUI can bring. The best outcomes will always be “managed.” Every lawyer needs a solid grip on the facts of the case, and that means getting to know the client and his or her concerns, as well. Of course, knowledge of the law is required, but that entails more than just knowing the actual rule of law. And, as we’ve seen, these things must be combined with the proper management of time, perception and science. If done correctly, then a person will always have the peace of mind that comes from knowing the very best outcome was obtained under the circumstances of his or her case. If you can’t be sure of that before you hire any particular lawyer, then you’d be best advised to skip that lawyer and keep looking until you are.
If you’re facing a DUI anywhere in the Detroit-area (meaning any court in either Macomb, Oakland or Wayne County) and are looking to hire a lawyer, feel free to call my office anytime during normal business hours (8:30 a.m. until 5:00 p.m.) Monday through Friday to get my take on your situation. All consultations are done over the phone, right when you call. You’ll find us ready to help at 586-465-1980.