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Michigan DUI – Who’s your Judge and why that’s Important – Part 1

As Michigan DUI lawyers, we are in court (or online, “in” court now, during the Coronavirus pandemic), every day, handling the entire gamut of OWI charges. I often point out that in DUI cases, location matters a lot, and that’s why my team and I limit our DUI practice to the local courts of Metro-Detroit (meaning Wayne, Oakland, Macomb, Lapeer, Livingston, and St. Clair Counties). We know what will fly, what won’t, and that what might work well with one Judge may completely backfire with another.

Judge2-300x259Precisely because we don’t take cases all over the state, our extensive experience handling DUI cases before the same Judges, in the same circle of courts, day-in and day-out, enables us to know how to bring about the best results in each of them. This means that the fees we charge buys our experience making things better in these courts. That’s a lot different than some lawyer charging what amounts to tuition, in order to to learn how things are done is some court where he or she doesn’t appear on a regular basis.

The point I want to make in this 2-part article is that it’s the Judge that makes every court what it is, and really every courtroom unique, and therefore different from all others. In a very real way, what is going to happen in any DUI case depends largely on the Judge who will be presiding over it, and how he or she runs things. Most people instinctively “know” this, but they generally don’t know exactly how much the Judge – and his or her personality – really matters in terms of what ultimately happens to a person going through a DUI case.

In that context, the theoretical difference between a lenient Judge and a stern Judge is substantial. Before we get too far into that, let me clarify an important practical point relevant to DUI cases here in the Greater-Detroit area so that the reader can relax a bit: none of the Judges who preside here are anywhere near as tough or unforgiving as they could be, although a few of them are about as close to lenient as they could be, all things considered. That’s good news.

Indeed, most of these Judges, before whom we appear regularly, are pretty even-handed and moderate, falling generally in the middle, if not a bit more toward the lenient side rather than anywhere else.

By comparing them against each other, though, there is a definite “luck of the draw” aspect to having one’s case wind up before any particular Judge over some of the others.

In fact, that’s precisely how cases are assigned in a multi-judge court; there is as actual blind draw. If someone could, in any way, influence which particular Judge got what case, it would create pandemonium in the court system.

Although I’m not going to name names in this article, I can assure the reader that if DUI lawyers could have any hand in picking Judges, there would be some Judges with long lines of people gladly waiting for their case to be called, while other Judges would be sitting in empty courtrooms.

The legal system has safeguards to prevent anything like that from ever happening, and that begins with the famous “blind draw.”

By law, an OWI (Operating While Intoxicated) case must be heard in the court for the jurisdiction in which it arises. Anyone facing an OWI charge will, for better or worse, have to contend with this very real, and very important “where” factor.

This means someone arrested in a city covered by the Rochester court will have his or her case heard in Rochester. Similarly, anyone arrested in a city covered by the New Baltimore Court will have his or her case decided in New Baltimore, just as anyone arrested in a municipality covered by the Plymouth/Canton District Court will have to appear there.

It’s the same for every city, township and village.

Thus, when a person gets arrested for a DUI, his or her case will automatically be sent to the court that has jurisdiction over the municipality where the incident took place. If that court has more than one Judge, then the case will be assigned, via the blind-draw, to one of them, and that’s just the way it goes.

Whoever that Judge is, whatever he or she likes, and dislikes, and whatever his or her approach to DUI cases all become part of the package.

Over the course my 30-plus years as a defense lawyer, I have learned that the general background of a Judge is important, but, sometimes ironically, in ways that are often unexpected, and, at times, pleasantly surprising, as well.

For example, it might seem that any prosecutor or former prosecutor becoming a Judge would be inclined to be tougher, and more “pro-prosecution” than “pro-defense.” As it turns out, though, most Judges with a prosecutorial background are nothing short of decent, fair, and far more understanding that one would ever have expected.

By contrast, I have seen a few people (thankfully, very few, but they do exist) who had created the impression of being “nice” when they were practicing lawyers, then seemed to take on an inflated sense of self-importance once they got on the bench.

It would be naive to think that power doesn’t go to some people’s heads.

No matter what a Judge’s prior experience as a lawyer, though, once he or she gets to the bench, there is some on-the-job learning to be done, especially early on. A former prosecutor who gets elected to the bench may know a lot about criminal law and procedure, but has probably never handled a landlord-tenant case until he or she has to preside over and decide one.

Similarly, some lawyer who concentrated in civil (meaning non-criminal) law will, once taking the bench, suddenly have to decide all aspects of criminal cases, from setting bonds at arraignment to managing pre-trial conferences and then conducting criminal trials.

Fortunately, it has also been my experience that most new Judges manage this rather well, and get up to speed rather quickly.

It’s worth noting that, despite the whole “local” aspect to courts, there are some general differences in how they do things that have very little to do with the Judge or Judges sitting in them, and instead are more akin to regional differences.

To explain this better, l’ll use 2 examples based on actual local courts:

Court A has just one Judge. For as long as anyone can remember, this court has always started it’s morning docket at 8:00 a.m, and begun its afternoon docket at 1:00 p.m. This stands in contrast to most other courts, the majority of which begin at 8:30 a.m., and a few of which even begin at 9:00 a.m. These hours have been the same for as long as I’ve been a lawyer, and have been kept by all of the last 4 Judges who have presided there.

Court B has 3 Judges, and their court handles DUI cases a bit differently than most others:

Under Michigan law, a person cannot be sentenced for a DUI until he or she has undergone a formal alcohol assessment. This is a written test that’s administered by the probation department for each court.

In the majority of courts, after cutting a plea deal, a person makes an appointment to come back and meet with a probation officer before sentencing (this, now, is also being done by video). Usually, the alcohol screening test is completed at this time.

In Court B, though, the day a person has worked out a plea deal on his or her DUI charge, he or she is given the written test BEFORE being allowed to leave the building, and prior to ever coming back to meet with a probation officer.

This court has always handled DUI cases this way, even though it has seen numerous Judges come and go over the last several decades.

Things like those described above are local practices, and have little to do with the particular Judge (or Judges) than with the court itself. Some courts just do things the way they have always been done there, and for no other reason than that.

In that sense, lawyers “talking shop” might compare or refer to such practices geographically, saying something like, “Court A starts too friggin’ early,” or “I like that Court B has the client complete the screening test on the date of the plea…”

These things are different than practices that are unique to any particular Judge him or herself.

This is most obvious in multi-Judge courts, where certain things are done one way by one Judge, and a different way by another Judge in a different courtroom. Even there, though, there will always be some general practices followed by all the Judges in the building that are unique to the court itself.

How each Judge goes about implementing things in his or her courtroom is where we can see how the differences between them shapes the whole experience for anyone going through the DUI process.

These differences can become apparent from the very beginning of a case, and often start at the arraignment stage.

For example, some courts hold separate and distinct arraignments in DUI cases, requiring people facing OWI charges to show up for this proceeding (although that’s being handled differently now, because of the COVID-19 pandemic, and “showing up” can mean appearing by video), while other courts don’t hold any kind of separate arraignment proceeding.

Aside from the way things are being handled remotely as of this writing, in those courts that have always scheduled a separate, in-person arraignment, some of the Judges will require a person to personally appear before him or her (or at least another Judge, if it was a multi-Judge court), while others would have every arraignment handled by a Magistrate, instead.

If that’s not enough, there are some Judges who, depending on the day and/or the court’s schedule, would either do some or all of the arraignments themselves, or send some or all or some of them to the Magistrate.

Thus, if a person were to call our office and say “I have a DUI case pending before Judge X,” then we’d know that the person had previously been arraigned by a Magistrate, because Judge X never does his or her own arraignments.

However, if the person told us, instead, that “My case is in front of Judge Y,” then we’d know that he or she had already been in front of Judge Y for an arraignment, because Judge Y insists on doing all of his or her own arraignments.

By contrast, if a person were to call and say “I have a DUI case in Court Z,” then we’d know that there won’t be any separate arraignment, and that the arraignment will be addressed later, when the person receives a notice for an “arraignment/pretrial” because, in Court Z, arraignments and pre-trials are handled together.

The bottom line is that every Judge is the keeper of his or her own docket, and does things the way he or she wants to do them, and as quickly (or not) as he or she chooses.

In that regard, some Judges have what lawyers call a “rocket-docket,” meaning that they want to schedule court dates right away, and have the case wrapped up as fast as possible.

Other Judges are much more relaxed about this.

As a side note, there is absolutely no value in blowing through a DUI case at the speed of light. While many people facing an OWI charge have an “I just want to get this over with” attitude, the fact is, the passage of time almost never hurts a person, and can, in many ways, be helpful.

This is a whole and rather deep subject in its own right, and one best explored in the context of the lawyer-client relationship, and in the privacy of the lawyer’s office. Nevertheless, the point to this side-note (and it is important) is that there is seldom any good reason to hurry through a DUI case.

Locally, it’s possible, in some courts, to appear for a pre-trial and, in an effort to resolve the case favorably, come back several times thereafter for further pre-trial conferences to discuss and negotiate with the prosecutor.

Some Judges will allow a lot of time for this, and only begin to express any impatience after several such court dates, most of which are usually scheduled about a month apart.

Other Judges grow impatient when things aren’t worked out the first time around, and are not much inclined to grant more than a single adjournment for anything longer than a couple of weeks, all the while making clear that they want the case wrapped up pronto.

In real-world terms, this means that one person’s DUI can linger and be worked on (and, hopefully, worked over) for several months, while another person’s will need to be resolved in a matter of weeks – just because of the Judge to whom it has been assigned.

These kinds of idiosyncrasies of the Judge affect every stage of a DUI case. Knowing legal procedure is one thing, but knowing what a Judge likes and what can piss him or her off is even more important.

This is why regular experience before the same circle of Judges matters so much, and why I say that when a lawyer takes someone’s money, he or she is either selling experience, or collecting tuition to learn and gain that experience.

Whatever else, anyone facing a DUI wants to buy a lawyer’s experience, not pay his or her tuition.

We’ll stop here, and finish up in part 2.

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