No one is really prepared for a DUI, so when it happens, it is natural for a person to want to know what to expect. Of course, the most pressing questions fall into the “what is going to happen to me?” and “am I going to jail?” category, but another rather common question asked of me is “how many times do you think I’ll have to go to court?” In this article, I want to answer that question, at least as it applies to OWI cases in the Detroit-area (Wayne, Oakland and Macomb Counties).
Our primary focus will be on what a person facing a 1st offense DUI (this includes High BAC cases, as well) can expect, but we’ll also examine, albeit briefly, the likely number of court appearances for 2nd and 3rd (felony) offenses, as well. It is important to note at the outset that where a case is pending has a lot to do with this, as does the strategy used in the case, but our focus here will be more on how many times you have to show up, rather than the reasons why.
Most of the time, in the real world, and for most people reading this, the concern about how many court appearances you’ll have to attend arises in a 1st offense DUI case. The reason I say this is that almost everyone facing a 2nd or subsequent offense probably realize that there is a pretty strong “it depends” component to all of this. Keep in mind that that there is no set number of times a person must go to court for a drinking and driving case, although it is pretty much written in stone that a person will have at least 2 court dates in any case.
The exception comes if a person who lives out-of-state picks up a DUI here in Michigan. In such cases, I am usually able to arrange things so that the person can come back and get everything done in one day. For everyone else, you can start with the idea that you will have at least 2 court dates – at least – being an important, minimum qualifier.
I hate to sound old and get into all those “back in the day” stories, but, truth be told, up until a number of years ago, a DUI lawyer like me could simply waive a person’s arraignment in a 1st offense DUI case in just about every local, Detroit-area court. This means a person could skip the first court date. Let me explain what an arraignment means first, and then I’ll explain why it’s still possible in most, but not all cases, to waive it.
An arraignment is a preliminary proceeding (the first thing that happens in any criminal case) wherein a person goes to court to be told of the exact charge against him or her, and have a bond set. The reason it was (and still is, in most places) so easy to “waive” is that you’d kind of have to be a block-head to be arrested for drunk driving, held overnight in jail, then let go, but somehow NOT know you’re being charged with a DUI.
As to bond, most people are let out of jail after posting a few hundred bucks, anyway, although plenty of people are let go without having to pay a dime. Even if a person was let out of jail for no money, once they’ve hired a lawyer and he or she files papers with the court, it kind of goes without saying that they’ve been told all about the DUI they’re being charged with, and the fact that they’ve hired a lawyer is as good assurance as any that they’re going to show up to court and not skip out. There is really no reason to drag them into court to tell them they’re being charged with a drunk driving offense…
In most jurisdictions, 1 of 3 things happens: A person is given paperwork or otherwise told to check with the court in so many days (usually 10), provided a specific date by which he or she must contact the court, or instructed to report to court on a specific date and time.
Sometimes, instead of that, however, a person is told that he or she will be contacted (this usually happens when a person’s blood was taken, but it does happen in breath cases, as well). Whatever that situation, a lawyer can file what is called an “appearance” with the court, which is a legal notice that the lawyer or firm represents that client. Along with filing the appearance, the lawyer can also include a waiver of arraignment. The waiver essentially informs the court that the person understands the nature of the charge or charges against him or her, and wishes the court to begin by entering a “not guilty” plea.
If the arraignment is not waived, then the person has to show up in court, stand before a Judge or Magistrate and enter a plea (ALWAYS ALWAYS ALWAYS plead “not guilty!”). Given that every case does and should begin with that “not guilty” plea, waiving the arraignment simply saves the court time to let this be done administratively, rather than dragging everyone in for an actual, on-the-record proceeding.
In the last several years, however, a number of courts have started requiring people arrested for and charged with drunk driving to “test” as a condition of bond to prove they are not drinking. Being required to not drink while on bond for a DUI (and, in today’s world, just about every other offense) is standard.
This means that in the period while they’re waiting for their case to come up, and even while their case is pending, they are not only required to abstain from drinking any alcohol, but must provide breath and/or urine samples every so often (this can range from a few times per month to a few times every day, depending on the testing method ordered) to prove compliance.
Almost all Macomb and Wayne County courts (with the very notable exception of Detroit’s 36th district court) and most Oakland County will allow an arraignment to be waived in a 1st offense case, and, if testing is going to be a condition of bond, will impose it the first time everyone shows up in court together for what’s called a pre-trial. We’ll get to that in a moment.
The takeaway here is that in most cases, this kind-of, sort-of, first proceeding called an arraignment doesn’t really mean you have to go to court, and can therefore be waived and skipped. In terms of it being a first court date, it most likely won’t happen, but we’ll still call it a “maybe” for purposes of this article.
By contrast, everyone, in every case, will have to show up for the first substantive court date, called a “pre-trial.” I have written enough about it in other articles that we don’t need to get into three pages’ worth of explanation here, but a pre-trial is a meeting between the prosecutor and the defense lawyer, prior to any kind of trial (hence the term pre-trial) to see if the case can be worked out without there being an actual trial.
The parties will discuss the case to clarify what issues need to be addressed and/or resolved to make way for an agreed resolution (meaning a plea, or plea-bargain) rather than having to take the case all the way to trial. About 99% of all cases DO NOT go to trial, so the pre-trial really is, more than anything else, a step towards working things out. There is often more than 1 pre-trial, and can be any number of them, really, because just about any meeting between the parties before an actual trial is called a pre-trial (technically, it’s called a pre-trial conference, but absolutely nobody uses the word “conference.”).
Theoretically speaking, it is possible to work out a plea in almost every case at the very first pre-trial date. Practically speaking, it is usually a bad idea to even think that way, although that’s how most court-appointed and bargain lawyers (kind of have to) do things.
In my practice, I usually plan on having at least 2 pre-trials, with the first being more of an opportunity for me to go in and get a “feel” for the case, more than anything else. I’ve had DUI cases with more than 5 pre-trials; by contrast, though, if I ever show up and discover that I can really work out a great deal the first time I go to court, I’ll have no hesitation to do just that, because the ultimate goal is to produce the best result possible.
In terms of total number of court dates, and counting the arraignment as a “maybe” date, then the question of how many more times you’ll have to show up (this applies to any charge) is most dependent on how many pre-trials you have, because the court dates that follow thereafter are fixed in number.
Let’s use a real-world hypothetical. Say I get a 1st offense DUI case in the 41-B district court in Clinton Township, where I can and do waive the arraignment. Assume my client was arrested a week ago. He or she comes in, and I file an appearance and a waiver of the arraignment, so that date is therefore “cancelled out.”
Our first actual court date, where we’ll have to show up is the pre-trial, and it will take place (roughly) about 4 weeks later. Let’s further assume that I meet with the prosecutor at that first pretrial, but there’s some stuff I need to do to get the better plea bargain I want. My client and I will go in front of the Judge that day to get our next court date (another pre-trial, and it will usually be scheduled about a month down the road). While we’re there, the Judge will review the bond conditions (or lack of them) and order that my client NOT use alcohol, and require him or her to test (Clinton Township doesn’t pile on the testing frequency, like some courts do) once or twice a week.
If I do whatever I needed to do in the meantime so that when I show up a month later for that second pre-trial, I get the plea bargain I wanted, we’ll be able to resolve the case that day. That doesn’t mean it’s over, but it means that, for example, that I was able to get my client’s High BAC charge gets dropped to the far less serious charge of impaired driving so that he or she does not lose the ability to drive.
The client will still have one more court date with me – the sentencing – but will also have to come back without me (or anyone else), before the sentencing, for the probation interview and mandatory alcohol screening. None of that involves seeing the Judge or going in the courtroom, so it’s not really a “court date,” even though the interview is done in the court building.
This means, then, that my client will have a total of 3 court dates, which is typical for me in most of my 1st offense DUI cases.
Okay, so we’ve established that in most 1st offense cases, there will be arraignment (usually, but not always waived) and that there are usually 1 or 2 pre-trial dates (with me as your lawyer, it’s most often 2). The next and final court date is the sentencing, where a person finds out what the Judge is going to do to him or her.
However, and this is a big and important however, BEFORE a person comes back to court for sentencing in front of the Judge and with his or her lawyer, he or she will have to come back to the court building to meet with a probation officer for that pre-sentence investigation I mentioned in the preceding paragraph. There is no lawyer (or spouse or anyone else) allowed in for this; it’s just a one-on-one between the person and the probation officer.
Prior to meeting with the PO, the person will complete an alcohol screening instrument (a questionnaire, or “test”) that is numerically scored and compared against a key. Depending on the person’s score, he or she is seen as having (or not), either a drinking problem, or the potential to develop a drinking problem.
This is a hugely important part of the case because the probation officer takes that score (the screening test result is the most important determinant of what happens to a person in a DUI case), gathers additional background information about the person (childhood, early life, and present circumstances, etc.), looks at the facts of the case itself, and then, based upon all of that, drafts a written sentencing recommendation that is sent to the Judge and suggests what should happen, meaning what the appropriate sentence should be.
Here’s the kicker: This recommendation is really the blueprint for what is going to happen, and the best and most useful efforts of any lawyer are expended in making sure the client is thoroughly prepared for the alcohol screening test and the probation interview in order to procure the most favorable and lenient recommendation possible.
For a lawyer to not thoroughly prepare the client for the PSI and just show up in court instead to comment on the recommendation itself is a waste of breath that will have little to no impact on the outcome of the case. Remember, I said that the recommendation is really a blueprint for what will happen, and it is…
This means, then, that a person will go to court an absolute minimum of 2 times for a 1st offense DUI (if it’s in a court that allows an arraignment to be waived and things work out quickly), will probably go 3 times (typical for my cases where the arraignment can be waived), but can wind up going 4 times (typical for me in courts that do not allow the arraignment to be waived).
Of course, for strategic reasons, there can be more court dates. One good thing in my practice is that I charge a flat-fee, so there can never be any suspicion of motive if I suggest coming back; it’s all included.
In 2nd offense drinking and driving cases, showing up for the arraignment is always required. Beyond that, of course, there will be at least 1 pre-trial. I usually have 2 or 3, because I not only want to take the time to look everything over very carefully, but there are sometimes issues involving being admitted into sobriety court or even transferred into a different jurisdiction’s sobriety court. Add in another date for sentencing, and you have a minimum of 3 court dates, as many as 5 realistically possible, with 4 being the likely number.
Things are very different, and kind of all over the map in 3rd offense (felony) drunk driving cases. Every 3rd offense DUI, like every 2nd offense case, requires the driver to show up at arraignment. Because a 3rd offense is a felony, a person’s first court date will be called a “pre-exam conference,” and this date will be set during and within 14 days of the arraignment, along with another date (also scheduled within 14 days of the arraignment) called a “probable cause hearing.” It is unlikely that both of these hearings will actually take place within those 14 days.
In most 3rd offense cases, the lawyer shows up at the pre-exam hearing and requests an adjournment (often, in both Wayne and Macomb Counties, to start the formal process to negotiate the case down from a 3rd offense felony to a 2nd offense misdemeanor) for about 30 days.
This means that most of the time, there will be another return date in the district court. Sometimes, it is possible to have the whole felony thing “knocked out” and have the case resolved as a misdemeanor right there in the district court where it is first brought.
In other 3rd offense cases (for example, where a person has more than 2 prior DUI’s meaning that, although charged with a 3rd offense, it’s actually a person’s 4th or 5th), the matter will have to be bound over to the circuit court for the county in which the arrest took place. If a case does go to circuit court, there will always be at least 2 more court dates (at least 1 pre-trial and a sentencing), although there may be more.
Practically speaking, a 3rd offense DUI will almost always require at least 4 court appearances (2 in the district court and 2 in the circuit court), but could take as many 7. Often, this kind of scheduling is used strategically to try and produce a better outcome. Discussion of all that strategy stuff falls outside the scope of this article, but DUI lawyers like me don’t keep setting up new court dates without good reason.
There you have it. A typical Detroit area 1st offense DUI will require 2 to 4 court dates, with 3 as about the average. A 2nd offense drinking and driving charge will require 3 to 5, with an average of about 4 appearances. Felony 3rd offense drunk driving cases will almost certainly require a minimum of 4 tips to court, but can require as many as 7, with 4 or 5 being about average.
Of course, if you’re facing a DUI anywhere in Wayne, Oakland or Macomb County and are looking to hire a lawyer, we’re here to help. feel free to call me and find out about how things are likely to play out in the court where your case is or will be pending. My office is open Monday through Friday, from 8:30 a.m. until 5:00 p.m., and can be reached at 586-465-1980. All of the consultation stuff is done over the phone right when you call.