Michigan Criminal Defense Lawyer Blog
As a Michigan DUI lawyer, it can be easy for me to get all caught up in the legal and procedural things involved in a drunk driving case. It recently occurred to me that so much of what a person will find as he or she searches for information after a drinking and driving arrest is focused on all that technical stuff, and all of that misses the target in more than 98% of OWI (Operating While Intoxicated) and impaired driving cases. Lawyers, on their various websites, detail what they think they can do, what they have done, and what they think ought to be done in DUI cases. Spend enough time online, and you might wonder if you should hire a lawyer or a trained Datamaster breathalyzer operator, instead. This can get so involved that you lose sight of the big picture and start thinking about trials and juries and verdicts and all kinds of things that are unlikely, at best, and which only succeed in less than 2% of all OWI and impaired driving cases. The purpose of this article is to bring the discussion back home and focus on what a DUI is really all about. As with so many things, when you cut to the heart of the matter, it’s really quite simple.
At the end of the day, a DUI case is about drunk driving. The sole question comes down to whether a person was operating a vehicle with a blood alcohol level of .08 or greater, or was otherwise “impaired” by the alcohol he or she consumed. We can get so caught up in all the details about things like the traffic stop and what constitutes “operating” a vehicle that, as the saying goes, we “Can’t see the forest through the trees.” In a very real sense the way we think and talk about DUI cases parallels the way we think and talk about losing weight. The idea of fat loss is really quite simple; you knock off some pounds. For all the gimmicks and gizmos on which people waste their time and money, it all comes down to burning more calories than you consume, which means some combination of cutting back on what you eat and ramping up your activity to create a caloric deficit, rather than a caloric surplus.
In the same way, the focus of the court system is to determine if a person was driving (or “operating”) a motor vehicle either with a BAC of .08 or more, or was otherwise “impaired” when he or she did so. All the questions about evidence and legalities are like diet plans and exercise equipment in that they relate to, or, in a way, grow out of the one central issue. In a DUI case, that central issue is whether or not a person drove with a BAC of .08 or above. In the world of weight loss, all the diet plans and ab wheels and other exercise contraptions go to the central issue of taking in less calories than you burn, or, to flip it around, burn more calories than you take in. In the DUI world, there is a danger to getting caught up in everything except the big picture, and it is good and necessary to be reminded to keep your eye on the ball, or else risk getting hit by it. As we’ll see, the real numbers, compiled by the Michigan State Police as part of its legally mandated Annual Drunk Driving Audit of every case in every court in the state tell a story very different than you’ll get from all the slick legal marketing, which probably explains why it is never mentioned.
A lawyer can make a grand living by fear mongering and distraction in the same way that some ab exerciser gadget you see on TV can make the manufacturer rich. Get a bunch of fit people to model the product, showing off their enviable 6-packs, and tell the audience that, “With just 20 minutes a day, you too can have a sculpted midsection!” Of course, left out of this is the fact that you’ll also have to radically change your diet and add some serious cardio time to that spent twisting away on your new “Abdominator” (I think I like that term, so here’s notice that it’s my idea and that I claim trademark rights to it).
Likewise, some lawyers make it sound like in just about every DUI case, there are police screw ups so significant that the whole case can be thrown out of court. All you need to do is hire THAT lawyer, because he or she knows what secret things to look for. One of my favorites “distractions” in that regard is when a law firm touts having a certified breathalyzer operator on staff. What, are you going to see a lawyer for a breath test? In a DUI case, unless you can convince the Judge that the breath test was done so improperly, or the machine was so out of whack that its results are completely unreliable, those test results will be admitted into court and the case will not be thrown out. The value of that skill, in a real world DUI case, is only slightly better than having a certified massage therapist on staff.
Under Michigan law, every DUI arrest must be tracked, and the Michigan State Police are required to document every single case as it goes to and through every court in the state. To be clear, there is no case that can ever “fly under the radar,” so these numbers are comprehensive. If you think the judicial system is uptight about DUI cases, you’re right, because every single Judge is audited each year for every case that makes it into his or her court. I don’t spend my time reading too many other legal websites, but I do find it curious that some of them with the most aggressive marketing approaches are entirely silent about the indisputable numbers gathered each year by the MSP as part of its legislatively required Annual Drunk Driving Audit. Once we look at the numbers, you’ll see why.
In July of 2015, the audit for calendar year 2014 was published. You can find the information I’m referencing on page 641. There were 32,177 arrests for Operating While Intoxicated and Operating While Visibly Impaired (OWI and OWVI) that resulted in drunk driving charges pressed in court. For all the bluster you can find, only 68 of those cases went to trial and resulted in a “not guilty” verdict. This is worth repeating: Of those 32,177 DUI cases, only 68 won by trial. That equals .21%, or about one-fifth of one percent, and that is an increase from 2013! What’s more, only 499 of those cases were thrown out of court. That equals 1.55%. Total that up any way you want, but it means that just 1.76% of the 32,177 OWI and OWVI cases that went to court resulted in an acquittal or dismissal. Put another way, 98.24% of the people whose OWI or Impaired driving cases were prosecuted did NOT get their charges dismissed, either by the Judge or by verdict. These are the real numbers to which you should pay attention.
The ugly truth is that the big money is in selling people the hope that they can wind up being part of the lucky 1.76 percent. When you look around, it becomes clear that most of the things you’ll find on legal sites is far more relevant to being part of the 1.76% than it is the less glamorous reality faced by the other 98.24%. With this in mind, let’s circle back to the real point of this article: The inquiry in a DUI case is all about whether or not, at the time in question, a person was driving with a BAC of .08 or above, or was otherwise “impaired” by alcohol. When you look at the cold numbers, it is obvious that it is not the Judges who are so preoccupied with all the potential, theoretical challenges to a DUI case. While it may be very profitable to sell that to someone willing to pay big bucks for a ticket on the 1.76% express, it also requires getting someone to buy far more into what he or she wants to hear, rather than what they ought or need to hear.
Even so, we must bear in mind that everyone in that 1.76% wound up there because each had a lawyer who took the time to examine and challenge the evidence. You can never beat or “knock out” a DUI case unless you try. Some of my cases are part of that 1.76%. If 300 pound Pete staggers into the gym, determined to lose more than 100 pounds, he should run back out as fast as he can if he’s told it can’t be done. However, he should also run out just as fast if someone offers to have him showing off an enviable 6-pack in a few short months if he’ll just hand over a lot of cash, first. The key there, and in a DUI situation, is to recognize reality. At the end of the day, there isn’t a Judge out there who wants to dismiss a DUI case unless he or she has to. It’s a fool’s errand to think that some Judge is sitting in court and thinking of drunk driving cases as some kind of “game.”
Sure, technicalities do matter. In Michigan for example, “operating” a vehicle for purposes of a DUI case is extended to sitting in the driver’s seat with the keys in the ignition. Personally, I think this is absurd, but it’s the law. Plenty of people get convicted for drunk driving even though they weren’t actually “driving.” If you’re facing a DUI, you owe it to yourself to check out every viable way out of the charge. The qualifier here is the word “viable.” You should do your homework, read what lawyers have written, call around, and be a smart consumer. Part of that, however, should require that you never forget that the sole question is whether or not, at the time in question, you were operating a vehicle with a BAC of .08 or above, or were otherwise “impaired.” Keep your eye on the ball. Whoever else you check out, make sure you check out my blog and my website, as well. When your ready to move forward, call my office at 596-465-1980. We’re here to help, Monday through Friday, from 8:30 am until 5:00 pm.