Michigan Criminal Defense Lawyer Blog
As a Michigan DUI lawyer, I spend a lot of time calming the fears of people who have been arrested for Operating While Intoxicated (OWI). Unfortunately, some lawyers, not necessarily because they’re mean or otherwise trying to be intentionally deceptive, default to a strategy of selling their services through what is known as “fear-based marketing.” After all, anyone with a product or service has to answer the question, “What can you do for me?” You wouldn’t buy glue if the package said something like, “maybe it will hold, or maybe not.” Most often, and especially right after the arrest, someone charged with a DUI is most afraid of going to jail. Selling one’s self as the hero that can save someone from his or her biggest fear seems like a good way to get business, and, because of human nature, it does work well enough in the larger market. In other words, when people are at their most vulnerable, they’ll buy into it for a sense of peace of mind.
The simple truth, however, is that in a 1st offense DUI (at least in any local, Detroit-area court), you’re not going to jail. It doesn’t matter if your lawyer isn’t any smarter or well-spoken than a braying donkey; jail simply is NOT on the menu. The only possible exception to this comes from 1 out of the 3 Judges in Bloomfield Hills’ 48th district court, and even then, getting locked up not a guarantee. If your case is pending anywhere else (or even in front of either of the other 2 Judges in that court), any talk of jail is essentially a waste of breath, and paying some lawyer to “avoid” it is a waste of money, as well. In fact, jail can be avoided in many, if not most 2nd offense DUI cases, and although somewhat off topic here, I’ve also kept countless clients originally charged with 3rd offense (felony) DUI from doing any time, as well. Since you’re not going in the first place, paying legal fees to stay out of jail in a 1st offense DUI is senseless.
Keeping someone out of jail who is at genuine risk to go is one thing, and undoubtedly the most important thing for that person. The point I’m making here, however, is that since you’re not at risk to get locked up for a 1st offense DUI (this includes High BAC cases, as well) anyway, why waste your time and money protecting yourself from something that’s not going to happen? Instead, your focus should be on avoiding as many of the numerous other legal consequences that are possible, likely and even certain, like driver’s license restrictions or suspensions, and an easier, versus a more difficult term of probation. In other words, you should pay your lawyer to provide you with the best and most lenient outcome possible in your case.
There’s an old saying that goes, “If I had a nickel for every time…” and then you fill in the blank. Over the course of my 26-plus years as a lawyer, if I had a nickel for every time someone charged with a drinking and driving offense said something like, “I’ll do (or pay) anything to stay out of jail…,” I’d be rich beyond measure. I get it; the very idea of going to jail is frightening, and once you’ve been arrested for a DUI and know there is an “official” case against you, the whole jail thing goes suddenly becomes a lot more real. Yet for as true as those “I’ll do anything” statements may be when they’re made, there are serious regrets for having said that if a person winds up on some kind of demanding probation-from-Hell, and then learns that jail was never on the menu in the first place.
Let’s speak frankly here: in the Detroit area there always will be one court that is the most lenient, and, at the other end of the spectrum, one that is the toughest. Although I navigate that particular “tough” court (I’m not naming names here…) very well, I’ve handled plenty of probation violation cases there for clients who didn’t first use me as their DUI lawyer, and then wound up on that proverbial “probation from Hell.” More times than I could count, I’ve heard those people say, with a sense of disillusion, that if they had known their probation would be so demanding, they’d have rather gone to jail for a spell, instead. While I’m sure most of that is just them blowing off steam in frustration, it reflects the real cost of misplacing one’s focus (and money) on staying out of the jail you’re not going to, instead of working toward a better outcome overall, including less (in every sense of the word) probation.
Let’s look at this a little deeper. When one of my clients is facing a DUI there, we first lay aside any talk about jail, and then turn to the reality that, in that particular court, the probation can be a nightmare. Since there is nothing to be done about avoiding jail (because it isn’t going to happen), I begin to prepare my client to undergo the legally-required pre-sentence investigation (PSI) which includes the written alcohol screening test and interview with the probation officer. This legally required step in a DUI case occurs before a person shows back up in court to be sentenced. The whole point of it is for the probation department to do an “investigation” and then generate a written sentencing recommendation for the Judge based upon both your alcohol assessment test result (the test is numerically scored; essentially, the higher you score the more likely you are to have or be at risk to develop a drinking problem, so that all efforts should be put into making sure you avoid as many points as possible) and how well (or not) you did in your meeting with the probation officer.
If a lawyer is so genuinely uninformed that he or she thinks jail is actually something to worry about in a 1st offense DUI case, then this kind mistaken belief that will divert proper efforts away from prepping for the PSI. Honestly, there’s just no excuse for this. That’s a level of incompetence akin to seeing a doctor for a shoulder problem and having him or her diagnose demonic possession and prescribe an exorcism, instead of finding a rotator cuff injury and prescribing physical therapy. On the other hand, it is easy to sell one’s self as the purveyor of what the customer wants (i.e., not going to jail), especially when he or she is going to get it anyway. What I mean is, if the client is (understandably) worried about going to jail (even though he or she will not), a lawyer doesn’t have to do anything more than watch the case unfold, knowing there will be no jail, and then bask in the credit for having spared his or her client from their worst fear. Easy money…
So this brings us to an inevitable conclusion: If the lawyer isn’t focusing on otherwise producing the most lenient outcome possible, and isn’t talking about limiting probation, then it’s either because he or she doesn’t know better (like our exorcist doctor), or, does know better, which is almost worse! It’s not that a lawyer who knows better is just making money off of his or her clients fears; many lawyers just don’t know what to do beyond arguing “no jail” to the Judge. Lots of lawyers talk about “protecting your rights,” which, in most DUI cases, is as worthless as hiring a second dentist to watch and make sure the first dentist fills a cavity properly. If you think about it, keeping someone out of jail is really the high-water mark for criminal defense lawyers, and it should be, but only when going to jail in the first place is likely, or at least possible. When it’s not, then the conversation should be about what really can happen, and what should be done to ensure the best outcome based upon those things.
The idea of just “limiting” probation is vague, however, and without any real meaning other than “less,” as opposed to “more.” Sure, a shorter period of probation is better than a longer one, and non-reporting probation is better than having to show up and report every month, but to fully understand this, you need to understand that probation in a DUI case typically involves, in order of ascending seriousness (and inconvenience), either classes (often officially referred to as “education”), counseling, or treatment. Aside from a person getting the help he or she may truly need for a troubled relationship to alcohol, if you’re on the receiving end of having to attend and pay for services that aren’t absolutely necessary, then at least counseling is better than formal treatment, and less counseling is better than more. Having to complete a class, or even a few classes, still beats any kind of counseling, but the fewer classes, of course, the better. A one-session class for several hours is a lot less of a pain in the a$$ than having to go away for a 3 or 4-day weekend alcohol education program.
This is where I come in. You don’t get out of these things simply because your lawyer tells the Judge they’re not necessary; you test your way out of them. Specifically, you do well enough on the written alcohol screening test and the rest of the PSI to avoid having these things recommended in the first place. Once the probation department forwards its written sentencing recommendation to the Judge, the outcome of your case has pretty much been determined. You can take this to the bank: there is no Judge, in any court, who will, in a wholesale way, disregard or deviate from his or her probation department’s sentencing recommendation. Therefore, you avoid unnecessary treatment, counseling, or even tiresome classes long before you ever go back before the Judge for sentencing. I have a separate meeting with each client specifically to prepare for this and make sure my clients understand all the nuances of testing and PSI process before it ever takes place.
There’s a lot more to this than I can even begin to summarize here (that’s why we have a separate 1 to 2 hour meeting to prepare for the alcohol screening test and the probation interview). In fact, this step is so important that, beyond just “knowing” this stuff, or having experience with it as a lawyer, I bring a clinician’s background to the table, having completed a post-graduate program of addiction studies. I fully understand the development, diagnosis and treatment of alcohol problems. If I’m going to have an impact in a DUI (or driver’s license restoration) case, it is imperative that, when I walk into any courtroom, I am the foremost expert on these issues. Absolutely no one can prepare you to do as good a job on alcohol screening test and PSI nearly as well as I can. That’s not meant to sound cocky, but confident, instead. The PSI phase is the absolute key to how things turn out in a DUI case. There’s no room for indecisiveness or modesty about this; if I couldn’t speak with such authority here, how could I ever assert any in your case? Back in the real world, this means that the probation officer is going to hand you a written test, and after you fill it out, your responses are scored using an answer key. My training means I understand not only how that test works, but also how and why it was developed, and therefore, how to make sure you do as well on it as possible.
Most lawyers, and even many lay people, understand that, in a DUI case, things don’t look good from the start. Lots of people will say things like, “They’re going to look at me like I’m some kind of big drinker, or alcoholic.” While that’s not exactly true, it isn’t completely wrong, either. There is an inherent “alcohol bias” in the court system. We can skip the historical analysis about why that’s the case, but we can never lose sight (because the court and the probation department won’t) of the fact that, as a group, DUI driver’s have a significantly higher statistical incidence of drinking problems (define that as you will) than the population at large. The reality, then, is that yes, simply because you’re in a DUI case, you automatically appear to the court as being at risk to have or develop a drinking problem. This further means that you can’t afford to merely do “okay” on the alcohol screening test and the rest of the PSI – you need to crush it.
Think about it; even if you do “okay,” and otherwise appear to not present with an obvious alcohol problem, there is a standing bias toward finding a risk that you could develop one just because of your DUI. Mother’s Against Drunk Driving (MADD), a HUGE behind the scenes force in DUI law and a group that no Judge wants to anger, claims that “an average drunk driver has driven drunk over 80 times before first arrest.” The point isn’t whether that’s true or not, but rather that is shapes how you’ll be perceived by the court. You may very well be an exception to this, but you’re going to have to prove it, and can rest assured that the system has little to no interest in or mechanism for separating you out from everyone else.
Therefore, it is misguided to approach a 1st (and even 2nd) offense DUI with any notion that the ultimate measure of success is not going to jail. If a lawyer uses the “avoid jail” card as a primary marketing tool, especially in a 1st offense case, then he or she is either clueless or otherwise just ready to take your money to watch what’s not going to happen not happen. In either case, you’re being left hopelessly behind in the journey to the best outcome possible. Instead, you should look to avoid and minimize those things that can and will happen. As you look for a lawyer, keep these things in the forefront of your mind.
If you are facing a DUI in any court in Oakland, Macomb or Wayne County, and are looking to hire a lawyer, I can help. My DUI practice is exclusive to the local, Tri-County area, and I appear in these same courts day-in and day-out. All of my consultations are done over the phone, right when you call. You can reach my office at 586-465-1980, Monday through Friday, from 8:30 a.m. until 5:00 p.m. We’re here to help.