Michigan Criminal Defense Lawyer Blog
In Part 1 of this article, we examined the range of realistic outcomes in a DUI case, particularly a 1st Offense case. In this second part of the article, we’ll focus on how and why those outcomes happen, and what can be done to help insure that the most lenient, as opposed to a more severe outcome, is produced.
By Law, prior to the Judge imposing Sentence on a person with a DUI conviction (meaning they’ve pled to some alcohol-related charge, or were found guilty of one), the person must undergo a mandatory Alcohol Evaluation. This means they take a written test. This test is scored. The score a person gets determines, in essence, what will happen to them. The higher the score, the worse things are, whereas the lower the score, the less likely the person is to have, or to develop, an alcohol problem.
Beyond the test, every Court in the Tri-County area requires that the person also be interviewed by its Probation Department. The whole of this interviewing and testing process is often called a “PSI,” or Pre-Sentence Investigation.
The Probation Department then makes a written report to the Judge, to be reviewed for Sentencing, advising what they think, based upon their interview and the person’s test score, needs to be or should be done to them. In other words, the Probation Department recommends what the Sentence should be.
As I have noted in numerous places in both my Blog, and on my Website, these “recommendations” are more accurately called “blueprints” for what will happen, because in pretty much every Court, and in every case, what the Judge orders is usually either exactly in line with the recommendation, or darn close to it.
Think of it this way: If the Probation Department said Jane Doe had the potential to develop an alcohol problem, and was currently at the stage where it appeared she is abusing alcohol, and therefore should complete some classes, what do you think the chances are that some Lawyer can come along and convince the Judge that that’s baloney, and no classes should be ordered? Do I hear a “zero” anywhere?
Thus, at the point where the Probation Department has made its recommendation, the Lawyer’s influence in the way the rest of the case will play out has been reduced to minimal, at best.
So beyond negotiating a Plea Bargain, or getting a Sentence agreement to “no Jail” in a 2nd Offense case, what more can the Lawyer to do? Lots. Let’s look at specifics:
As we’ve observed, it is certainly not to just show up at the Sentencing and tell the Court how sorry John or Jane Doe is, and that it won’t happen again.
Instead, the VERY BEST thing the Lawyer can do for the Client, after working out some kin of deal, is to prepare them for that PSI, meaning prepare them for both the alcohol evaluation test, and the interview with the Probation Officer.
It goes beyond the scope of this article to detail what’s involved in that preparation. I often call it a “science,” and in my office, it the WHOLE REASON my first appointment with a Client lasts about 2 hours.
For purposes of this article, we can simply note that the job of preparing the Client for the PSI involves making sure they score as low as possible on the alcohol evaluation test, and avoid making some common mistakes in answering many of the questions. In that regard, some of the “better” answers to those questions are not what a person might first think, and in some cases, the “better” answer is rather counter-intuitive.
Moreover an interview with a Probation Officer can be intimidating. They’re not there to become your friend. Instead, they’re job is to assess and evaluate a person and make a recommendation to the Judge about what to do to that person. Given that such a recommendation carries enough weight to be considered a “blueprint” for what the Judge will ultimately do, making sure that process goes as well as possible is extremely important. Again, some of this involves avoiding falling into common “traps” with the answers to the questions posed by the Probation Officer.
After this whole PSI process, the Client, and their Lawyer, return to Court in a few weeks for the Sentencing. That’s when whatever is going to happen to them happens. The Parties check-in, and the Clerk or Bailiff hands the Lawyer the Judge’s copy of the PSI Report, so that the Client and the Lawyer can “review” it. As we’ve noted several times, this means, more than anything else, learning what the Judge is going to do.
What happens to most people with a DUI is more about what doesn’t happen. In John and Jane Doe’s cases, they won’t be going to Jail. They won’t get stuck in Rehab unless they did poorly on their alcohol evaluation test (and they surely wouldn’t have done poorly if they had been properly prepared…).
They might, however, get a year, or even a year and a half’s Reporting Probation. In some cases, if things were done well, they might either avoid Probation altogether, or they might at least get a year’s Non-Reporting Probation.
They might be ordered to complete a class, or even a few classes. On the other hand, if things were handled well, they may avoid all of the classes altogether, or may just be ordered to complete a one-session class.
They could be ordered to attend AA for a while. Again, at least to me, and unless the person clearly needs it, this is far likely if they have not been well prepped for the alcohol evaluation test. In most cases, at least mine, no AA is likely.
Another “might” involves testing. Some Courts are big on urine testing, and the worse a person does at the PSI, the more likely, and the more frequent, that testing will be.
Fortunately, in terms of what really happens, that’s about it. Probation, Classes, and Testing are the most common, realistic consequence of a 1st Offense DUI.
Of course, in 2nd Offense cases, classes and counseling are guaranteed, and are required by law. The same concept of consequence management, however, applies in 2nd Offense, and even in Felony 3r Offense cases, but at a different level.
Thus, “what happens” in a DUI case, and particularly in a 1st Offense case, is a function of several factors. The underlying facts of the case itself are important. A person caught driving home, alone, form the bar at 2:30 in the morning is still in a better position than a person caught weaving all over the road, with 2 kids in the car, and 1 of them in a child-restraint seat, in the middle of the day.
Where the case is pending has a lot to do with things. Macomb County is, by and large, the better place to be facing a DUI than in Oakland County. Wayne County, or at least those Courts in Wayne County that I go to, kind of “split the difference” between the approached of the Macomb and Oakland County Courts, with some being very “Macomb-like,” others being more “Oakland-like,” and a few being like a kind of “halfway point” between the 2 in terms of final outcome.
Above and beyond those factors, the single most important part of managing the final outcome of the case, in other words, in making sure “what happens” is as lenient as possible, is making sure the Lawyer hired has an intimate knowledge of the PSI process, and particularly the nuances of an alcohol evaluation test. For my part, explaining to my Clients the 5 Primary Markers of an alcohol problem (Family History, Social Comment, Blackouts, Social Conflict, and Effects Threshold) and making sure they understand those, and how they’re applied in any alcohol evaluation test, is the absolute key to making sure the case finishes as well as it humanly and possibly could.
We’ve examined the range of what can happen in a DUI case, particularly a 1st Offense case, and we’ve focused in on what is likely to happen. From there, we zoomed in on what will happen, and how whatever does, in fact, happen, can be managed. As with so many things which are important, it takes work”. Good work is the key to good fortune,” and for a person facing a DUI, that work starts with the process of finding the right Lawyer, and then doing the work with that Lawyer that’s required to bring about the very best final outcome possible.