Michigan Criminal Defense Lawyer Blog
At its simplest, a DUI charge means that you’re in trouble, and are facing a number of legal consequences. Some lawyers rely on fear-based marketing strategies that warn everyone of all the scary things that could happen (especially jail), and then follow it up with some kind of pitch about hiring them. I hate that kind of BS, primarily because it is BS. For the most part (even if you’ve been down this road before), jail isn’t on the menu in a 1st offense DUI case, can often be avoided in 2nd offense cases, and is even possible to get out of in many 3rd offense cases as well. In fact, with one local Judge as the only realistic possible exception, jail is virtually never imposed in a 1st offense case here in the district courts of Oakland, Wayne and Macomb Counties. This means that once you understand jail wasn’t coming anyway, not having been sentenced to it is really a false measurement for evaluating success in your DUI case.
In a very real sense, success in a DUI case is always best judged by what does NOT happen to you. In other words, the less “stuff” you have to go through, the better. This applies to every potential legal consequence you that could be imposed for an OWI conviction. Sure, staying out of jail is great, but once you realize you weren’t going anyway, how do you know if your lawyer has procured any real benefit for you? Assume, for example, that Dan the driver is charged with a DUI in City X, and the Judge there (like almost everywhere else) never puts 1st offenders in jail. Dan isn’t a lawyer, so the only thing he knows is that the law says you can go to jail for 93 days. Dan is so worried about getting locked up that he’ll do anything to avoid it. He winds up hiring Lazy Larry, the lawyer. Larry, of course, knows Dan isn’t going to jail, but still makes a big deal out of how he’ll keep him out of it. Lazy Larry takes the first deal offered by the prosecutor, knowing that how relieved Dan will be to find out he’s not going to jail. Dan has his license suspended for 6 months, winds up being placed on 18 months of reporting probation while having to breath and urine test 3 times per week, and also being required to complete substance abuse counseling along with 60 hours of community service. At first, Dan thinks Lazy Larry is the greatest thing since sliced bread, simply because he is under the (mistaken) impression that Larry actually did something to keep him out of jail.
Until Dan finds out that his Judge has never sent anyone to jail for a 1st offense OWI charge. Curious, Dan hops on the internet and starts reading some of my blog articles and learns that the real focus in a DUI case is to make sure the client doesn’t get hit with all kinds of counseling, or treatment, and certainly avoids long and difficult probation with burdensome testing. Dan figures out that when a lawyer has the jail issue squared away (usually because it wasn’t an issue in the first place), he or she should be focusing on sparing the client from all the other stuff that really IS possible in a DUI case. In other words, in Dan’s case, Lazy Larry really didn’t do anything beneficial, especially because it’s not like he actually prevented Dan from serving any jail time that he wasn’t going to be ordered to jail time anyway. Instead, Larry’s efforts should have been directed to saving Dan’s license, and keeping him off of such a long probation with all that counseling, along with breath and/or urine testing and community service. As an honest lawyer who knows that Dan was never at risk to do any jail time, I’d rate the outcome of his case an absolute failure. If success is best evaluated by what doesn’t happen, then Dan got screwed, pure and simple. How could any other conclusion be reached?
It’s simple enough, then, to establish the standard by which we’ll determine success versus failure, but the real question is how do we achieve that success? Sure, we know that in DUI cases, “less is more,” but how, specifically, do you get less in yours?
First, you quit wasting your time on things that aren’t going to happen. You don’t “hurricane-proof” a house here in Michigan, do you? Of course not, because we don’t get hurricanes. Except in those situations where jail does loom as a real possibility, it’s foolish to spend much time talking about it, and any effort on avoiding it.
Second, you focus on the things that will happen. Later, we’ll explore the consequences that could, or might happen, but here, we’re strictly focused on those things that do occur in every DUI case. Unless your entire case is thrown out of court, you will, for example, have to deal with some restrictions to your driver’s license. The Michigan Secretary of State imposes license sanctions upon every single person convicted of any alcohol-related traffic offense. License penalties are not handled by the court, and a Judge cannot, in any way, modify what happens to your license. This means that if you need a license to drive during the course of your job, your lawyer needs to be working on that, and not “saving” you from the jail sentence you’re not going to get, anyway.
There will also be fines and costs. It’s not a stretch to say that DUI cases are a huge part of the revenue stream for just about every local court. So, yeah, it’s about the money, too. Over the course of my 27-plus years, I’ve had countless clients say stuff like, “I’ll pay anything to stay out of jail.” Well, if we know you’re not going to jail, would you rather pay $2600 to the court for your OWI case, or only pay $700? This is something else your lawyer needs to work on as he or she evaluates pleas and plea bargains.
Third, and most important, we need to direct our efforts to avoiding the things that can be avoided. The reality is that for some people, money isn’t so much of an issue, so a few hundred bucks one way or the other really doesn’t matter compared to thinking about the time they might have to take off from their jobs and the substantial loss of income, because of the court ordering you into all kinds of classes and counseling. This is really where the rubber meets the road in a DUI case. By law, prior to a person being sentenced by the Judge, he or she must be “screened.” This involves completing a written, numerically-scored alcohol assessment test, as well, as going through an interview with a probation officer. The probation officer must then calculate the score on the written alcohol test, assess the facts of the case (was the person’s BAC just over the limit, or was he or she rip-roaring drunk), and then, drawing from the impressions viewed by interviewing the person, submit a written sentencing recommendation to the Judge.
This recommendation is EXTREMELY important. In the real world, Judges follow these recommendations very closely. A lenient recommendation will result in a more lenient sentence. Conversely, however, a recommendation that identifies a person as having or being at risk to develop a serious drinking problem will result in a much more complicated sentence. This is where people get forced into all kinds of classes and counseling and testing – or not. Believe me, you want to be part of the “or not” crowd, and we get that by spending time (in my office, we actually have a separate meeting for this) preparing for the alcohol assessment and probation interview. As with everything in life, preparation is key, and investing in it at this point in your DUI case will pay huge dividends.
Let’s go back to Dan the driver. Imagine that instead of hiring Lazy Larry and getting hammered with all kinds of probation, he retained Brilliant Bob as his lawyer. Bob, like me, works extensively with the client, the prosecutor, and the court to minimize what will happen to his clients. In this situation, because Bob focused his efforts on preparing Dan for the alcohol assessment and the probation interview, the recommendation was for 9 months of probation with a one-evening Victim Impact Panel (just about everyone who goes through the DUI process will have to do this; it’s often called a “MADD class”) and no regular breath or urine testing. Because Brilliant Bob is so well-spoken, he convinces the Judge to put Dan on non-reporting probation, meaning that Dan doesn’t even have to report. Instead, all he must do is pay a fine and costs, do the one MADD class, and then stay out of trouble.
Doesn’t Brilliant Bob’s result sound a hell of a lot better than Lazy Larry’s?
Obviously, a lawyer cannot properly focus his or her efforts without knowing where they should go. This seems obvious, but there’s a real irony here. It makes perfect sense when you read it, but, unfortunately, you don’t read it at enough places. Too many lawyers are focused on marketing strategies that appeal to alleviating people’s fears, or to some misguided notion that you’re just a retainer payment away from having your whole case thrown out of court. Obviously, enough people fall for that. People have always been willing to pay for what they want to hear. But that’s not good enough, and, frankly, it’s not morally right, either. We’ve already made clear that any lawyer trying to sell “stay out of jail” is essentially wasting your time. But what about the operations that ask all kinds of slick questions about problems with the evidence in your case, and make it sound like getting the whole thing dismissed is just a phone call away?
This is one of the oldest tricks in the book. Rather than go through endless examples of how this works to explain what I mean, here is a simple truth that will help you spot this ploy from a mile away: anytime you are asked a question and not provided with the answer (or the answer isn’t obvious, like in the question I asked about Brilliant Bob’s result being better than Lazy Larry’s), it’s a setup. It’s not just limited to questions, because this tactic is also used as a teaser to get someone to click or call “for more information.” You’d think that by now, in 2018, people would know when they’re being baited, but often enough, the hunger for good news amidst all the turmoil of something like a DUI can override a person’s better judgment. Thus, when a website tries to ply something like “Did you know that…?” without answering the question, run the other way.
Think about it; do you think any of the top brands of anything, like BMW, Mercedes, Rolex or Sony would ever market their products that way? Of course not. Yet some lawyers find they can “reel them in” by teasing out a little promising information that the target client hopes will apply to his or her case. So what was the point of this rant?
That any lawyer who really knows how to make things better is NOT going to waste his or her time using such gimmicks. Lawyers like me explain how things work in the real world. I treat others as I would want to be treated. If I need help, I don’t want to have anything sugar coated; I want the plain truth. I am a busy professional, and I don’t have time to chase after misleading or “too good to be true” information. Above all, the last thing I want is to have someone try and scare me into thinking my situation is really bad so that, out of desperation, I’ll call them to “save” me. I would never knowingly fall for that kind of tactic, and I certainly wouldn’t try to exploit someone else by using it on them.
In order to avoid as many of the consequences in a DUI case as possible and to have it managed so that you have less consequences, the 3 things I examined above have to be front and center. First, don’t waste time on things that aren’t going to happen, second, focus instead on the things that will happen, and third, direct your efforts to avoiding the consequences that can be avoided, or otherwise minimized.
If you’re facing a DUI anywhere in Oakland, Wayne or Macomb County and are looking to hire a lawyer, do your homework. Be a good consumer and read around. See what other lawyers have written about your concerns, and how they’re addressed. Next, start asking questions. All of my case screenings are confidential and done over the phone, right when you call. It’s always best to ring my office when you have time to speak. We’re here to help, Monday through Friday, from 8:30 a.m. until 5:00 p.m., and can be reached at (586) 465-1980.