You already know that a 3rd offense DUI is serious, so there’s little point in going on and on about that. Chances are, however, that if you’re facing a 3rd offense OWI, even though it is a felony, it isn’t nearly as bad as you may fear, especially here, in the Tri-County area. If there’s one thing I hate, both as a lawyer and as a consumer myself, it’s fear-based marketing tactics, and I want this article to stand in contrast to the general practice of trying to scare the hell out of you. Instead, I want to look at 2 important factors that, more than just about anything else, will influence what happens: location, and BAC results.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/08/General-Tri-County-1-inch-1.2.pngLet’s begin with the obvious: a lawyer should carefully examine everything to see if there is some way to beat the case; my team and I certainly will. In my office, for example, it’s standard practice to obtain the police car dash-cam video in every DUI case that comes in. While you certainly won’t find anything wrong with the evidence unless you look for it, the simple truth is that the police usually don’t screw things up catastrophically, anyway. Thus, when the evidence is strong enough to withstand a legal challenge, we negotiate a plea bargain that reduces a 3rd offense felony down to a 2nd offense misdemeanor, or at least work out a more lenient sentence agreement that shines like a bright light at the end of a dark tunnel.

I want to be clear that while there are geographical and practical considerations to what and how things get done, even in what might seem the most clear-cut, true 3rd offense drunk driving cases, typical sentences in Oakland, Macomb or Wayne County are measured in days, not months, and certainly not in years. To clarify, a “true” 3rd offense means a person only has 2 prior DUI convictions in his or her lifetime. Since there is no higher OWI charge than “3rd offense” in Michigan, even a person with 12 prior drunk driving convictions can only be charged as a 3rd offender if he or she is arrested for number 13.

As the number of sobriety court programs has grown in Michigan, and as more people graduate from them, I am seeing a proportional increase in the number of sobriety court graduates appealing for a full license from the Michigan Secretary of State (SOS). Sobriety court Judges are legally authorized to override the SOS revocation that comes from either a 2nd or 3rd offense DUI and issue a restricted license. In this article, we’ll examine how the only way to go from a restricted license (with an interlock) issued by sobriety court to full driving privileges (without the interlock) is to file a formal driver’s license restoration appeal, and what’s involved in that.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/09/full-2.thin_-300x206.jpgThe lifting of restrictions and the interlock requirement by the SOS is technically called a “change and removal of restrictions.” The “step up“ from a restricted to a full license is NOT automatic. In the real world, a license appeal for someone with a sobriety court issued restricted license is kind of like a hybrid combination of a first time license appeal for someone who didn’t do sobriety court and who had to get his or her restricted license through the regular restoration process, and a “full” license appeal for those people when they later become eligible.

Every person who wins a restricted license through the SOS does so by documenting and explaining both their addiction and their recovery. This requires showing 2 things within those documents and then later, through testimony at a hearing: first, that their alcohol and/or substance abuse problems are under control (meaning that they have remained abstinent for at least the last 12 months, and really more like 18 months, minimum, in practice) and second, that their alcohol and/or substance abuse problems are likely to remain under control (meaning that the person is a safe bet to never drink or use drugs again).

One of the most important things I do in every driver’s license restoration and clearance case is to thoroughly “prep” my clients for their hearings. The whole preparation process is really a 2-way street, because prior to speaking with my client, I have to carefully read and review the entire file myself, to the point of actually memorizing it. For the client, this is about a lot more than just going over the questions likely to be asked of the client at the live hearing. And to be clear, I NEVER settle for a video hearing, and always schedule my cases to be heard live, even though there is video location less than 5 minutes from my office, while the drive to the actual office of hearings and appeals takes about an hour (much longer than that now, with I-696 partially closed). We’ll examine the shortcomings of video hearings in an upcoming article; in this piece, I want to concentrate on the importance of getting ready for a live hearing.

maxresdefault-300x288As I sit here writing this, I have 2 hearings the next day, and I’ve already prepped 1 of the clients, who is coming from Pennsylvania. Getting ready for a hearing really does require that I memorize the file, and not just do some quickie “review” of it. Before I ever read anything, however, I confirm which hearing officer will be deciding the case. Every hearing officer is unique, and they each have their own areas of particular interest, and that not only directs my focus, but what I emphasize to my client. To be sure, all the hearing officers share the same core group of concerns and ask some of the same questions, but there are also areas that, while important to some, are of little or no interest to others, and vice-versa. Knowing this is key to making sure I concentrate on the more important aspects of any particular file, and, in turn, preparing the client for the questions that will be asked regarding that. For example, if someone attends AA (although most of my clients do NOT), one hearing officer may want him or her to repeat a few steps of the program, while another will skip any specific questions like that and ask, instead, how often the person goes, and if he or she intends to keep going.

This isn’t nearly as complicated as it sounds, and the hearing itself should not be feared. If there’s one misconception I’d like to clear up in this piece, it’s the idea that the hearing is some dramatic, “it all comes down to this!” moment. It’s not. In fact, license appeal cases are mostly won or lost through the documents we file, and that takes place long before you ever walk through the door for your hearing. If the substance use evaluation isn’t legally adequate and appropriately favorable, there’s nothing you can say or do at a hearing to fix that, and your appeal will be denied. Ditto if the letters of support aren’t good enough. The hearing is really nothing more than an opportunity to go in and confirm that the person described in those letters and depicted in that evaluation is, in fact, the person sitting in the hearing room. Doing everything right is the recipe for winning, and that’s exactly what will happen when I take a case, guaranteed.

When you’re facing a criminal or DUI charge, it’s best to have a lawyer who is familiar with the court where your case is pending and the Judge presiding over it. Because the concept of “local” can differ by location, I want to clarify the idea of hiring a “local” lawyer. In the Metro-Detroit region, “local” has a very different meaning than in less populated parts of Michigan, and generally includes lawyers from anywhere within the Tri-County area. In other parts of the state, “local” can mean just the county where the case is pending, or even a specific part of it. In this short article, I want to examine what “local” means when it comes to hiring a lawyer for something like a DUI, suspended or revoked license case, or a criminal charge here, in the Greater-Detroit area.

LocalInsider-hero-300x256For anyone with a case in Oakland, Macomb or Wayne County, a “local” lawyer is not limited merely to one whose office is in the same city or county where the charge has been brought. Although that definition is overly narrow, it’s worse to have no concept of “local” when it comes to hiring a lawyer. I am, often enough, contacted by people from distant counties who want to hire me, and while that’s flattering, I have to explain that I keep it “local” by limiting my criminal and DUI practice to the various district and circuit courts of Oakland, Macomb and Wayne Counties (this is in stark contrast to my driver’s license restoration practice, which is statewide). Because of the geographic limitations on where I travel for court, I have no experience with how things are done elsewhere. As good as some attorney may be, one of the worst thing a person can do is to pay for him or her to make a “special trip” to some court where he or she does not practice regularly.

This isn’t complicated. To be perfectly blunt about it, like most things, it all comes back to money. As the old saying goes, if you want to know why something is the way it is, “follow the money.” In my case, I’m fortunate to be busy enough to not have to travel to courthouses all around the state. Some lawyers don’t have that option, and have to take cases wherever they can. As a client, you’re far better served by a lawyer who knows how the Judge assigned to your case does things. Every Judge is different, and what works with one may not fly at all with another. You should hire a lawyer who already knows all this stuff, and who uses his or her experience for your advantage.

In the real world of criminal and DUI cases in the district and circuit courts of Oakland, Macomb and Wayne Counties, a certain, consistent percentage of people put on probation will be brought back for violating it. This often includes people who you would have never expected to get in any kind of trouble in the first place. I’ve had plenty of very unlikely, well-heeled DUI defendants who you’d bet would never mess up again come back to face the Judge yet another time for something like testing positive for alcohol while on probation. There are actually 2 realities at work here: first, that a pretty regular (albeit small) segment of people will be charged with violating probation somewhere along the way, and second, that vast majority of probation violations arise because the person has, in fact, screwed up.

T297059-wile-e-coyote-218x300his is important, because too many lawyers are hesitant to address this head on, and instead talk like probation violations are almost always based on false accusations. Sure, there are times when a person is wrongly accused of violating (for things like a “dilute” urine screen that wasn’t intentional, but the result is treated as if it’s positive), but most of the time, the reason for a probation violation isn’t in dispute, like when a person misses a test, or gets caught drinking or smoking weed. In these situations, the thing you need most is a lawyer who can save your a$$ and talk the Judge out of locking you up. It’s exactly right here that, for a lawyer, being charismatic and persuasive beats the hell out of all the legal knowledge in the world. While only a small number of probation violations are factually unfounded, even fewer (as in almost none) will be won because of some scholarly, technical legal argument.

This has everything to do with how you find a lawyer. And while I admit to some self-interest here, the fact is that, since I only handle probation violation (PV) cases in the Tri-County, Metro-Detroit area, I have no financial motives other than to genuinely help those readers whose cases fall outside of my geographic coverage area. There are 3 key considerations to finding the right lawyer for a probation violation, and we’ll briefly examine each. We’ve already covered the fact that most PV cases arise because a person did, in fact, do something he or she was not supposed to do (like drink or use drugs). Similarly, a person can be violated because he or she failed to do something that was required, like complete classes, community service or pay money.

In part 3 of this 4-part article, we focused in on the PSI (pre-sentence investigation) phase of a Michigan OWI case and the legally required alcohol assessment test that’s a part of that. The whole reason for the PSI is for the probation department to generate a written report and sentencing recommendation that is sent to the Judge to be used in deciding what to do to you. Here, in part 4 we’ll see how this all comes together at the last stage of the court process – the sentencing. This is when you finally stand in front of the Judge to find out what’s going to happen to you. As I noted before, most of what will be handed down by the Judge comes directly from the probation department’s recommendation. By law, when you show up for sentencing, you and your lawyer are required to read the probation department’s report and recommendation. Later, when the Judge calls your case, he or she will ask if you and your lawyer have read it over, if you have any corrections to make to it (this applies only to the facts stated in the report, like your name, date of birth, prior record and such, and NOT to the recommendation itself) and then, what your lawyer and you have to say regarding the recommendation part of it.

privacy-is-an-illusion-and-youre-all-losers-cryptocow-infosecurity-2013-24-638-300x273Judges are all people, and just like everyone else, every Judge in every court is different. No matter how well-spoken a lawyer may be, knowing the idiosyncrasies and inclinations of your particular Judge is a starting point to knowing what to say, and, equally important, what not to say, at sentencing. Every professional athlete, for example, studies his or her opposition. In football, each team watches film of the other team; same with any fighting sport, like boxing or MMA. If I’m representing a 2nd time DUI offender in a jurisdiction without a sobriety court and who I’d like to transfer into a different jurisdiction’s sobriety court program, I had better know if his or her Judge will allow that. There are some Judges who will not transfer a case, no matter what, so not only is asking for that a total waste of time as a sentencing strategy, but then you have to ask, what has a lawyer done to help the client in a case that’s not going anywhere? That’s like bringing chopsticks to a soup dinner.

This may sound harsh, but it’s true: sentencing is where your lawyer either shines, or not. When you’re standing in front of the Judge who is going to decide what punishment and consequences you receive, you had better have spent your money on a lawyer who is exceptionally persuasive. The very LAST thing you need is some attorney who is indistinguishable from the larger herd of lawyers that just drones on about the same old stuff, like your age, job, and other generic blabber about how you regret this incident, want to move past it, and get on with your life. Instead, you need a lawyer who engages the Judge, captures his or her attention, and who can explain, in short order, things like who you are as a person and how that figures into something like this never happening again. In short, you need a lawyer with charisma to spare.

In part 2 of this article, we began our examination of the court process in DUI cases, beginning with the arraignment and pre-trial.  Here, in part 3 of this article, we’ll continue our examination of the court process, starting with the legally required alcohol assessment test.  By law, any person who pleads guilty to or is convicted of an alcohol-related traffic offense (OWI) cannot be sentenced by the Judge until he or she undergoes a legally required alcohol assessment, sometimes called a “screening.”  The actual assessment is a written set of questions about your alcohol and substance use history.  Your answers to them are “scored” using a scoring key, and then compared to a scoring chart to determine whether you have, or are considered at risk to develop a drinking problem.

Nexter-300x150After completing the alcohol assessment, you will then go through an interview with a probation officer (PO).  The end result of all this is a written sentencing recommendation drafted by the probation officer that must be sent to the Judge to be used when you stand before him or her for sentencing.  This recommendation lists specific things that the probation department believes you should be ordered to do (and not be permitted to do) as a result of your charge, including counseling and/or treatment.

Whatever else you read here, or anywhere else, you can take this to the bank: every Judge, in every Michigan court, follows this recommendation very closely.  There is NEVER a case where a Judge makes any big, wholesale deviations from his or her probation department’s recommendation.  In fact, it’s far more accurate to consider the sentencing recommendation a “blueprint” for what’s going to happen to you than anything else.  In other words, a good recommendation equals a good sentence, and a better recommendation will result in a better sentence.

In part 1 of this article, we began looking at the Michigan DUI process – specifically the police part of that process – starting out from your first contact with a police officer, the traffic stop and arrest, all the way through your release from jail thereafter.  Here, in part 2, we’ll begin looking at the beginning of the court process in DUI cases.  The first legal step in the court setting is called an arraignment.  In many DUI cases, this whole step (and, therefore, the need to show up in court for it) can be waived by your lawyer, although some courts, like Detroit, Rochester Hills and St. Clair Shores usually don’t allow that.  Technically, an arraignment is a court proceeding held before a Judge or Magistrate where a person is formally advised of his or her constitutional and procedural rights, the specific charge or charges being brought against them, and the maximum legal penalties for each.  A person is then asked to enter a plea.  Although the subject of arraignments can get very deep, what matters most here is that if you do have to go to court to be arraigned, you should ALWAYS, and I mean ALWAYS  plead “not guilty.”  To be clear, this is a procedural move, and  has nothing to do with whether or not you are actually guilty or not.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/08/Now-What-1.2.jpgIn the suburban courts that don’t allow it, the main reason an arraignment can’t be waived is because the court wants to quickly set bond conditions, meaning things you will be required to do, and others you cannot do, while your case is pending.  This isn’t as bad as it sounds, so hold on before you start sweating.  Once you’re released from jail, you’re out.  If you posted any money, then that will almost always be the amount of the bond set by the court, so it’s not like you’re going to be asked for more.  Despite that, however, we always tell anyone to take $500 with them if they must go to court for an arraignment, especially if they didn’t have to pay anything when they were first released from jail.

Bond conditions are rules you have to follow while your case is going on.  They include not leaving the state without the court’s permission, not getting into any more legal trouble, and, in every OWI case, not consuming any alcohol or using any drugs.  To make sure a person complies with the “no drinking” and “no drugs” conditions, all courts will order some kind of alcohol and/or drug testing.  This can be either breath (you’ll hear the term, “PBT”) or urine testing, or a combination of them both.  Depending on various factors, including where your DUI is pending, that testing can be more or less frequent.  Even if your arraignment is waived and you don’t have to go to court for it, bond conditions, including and especially the “no alcohol or drugs” provision will be ordered by the Judge the first time you appear before him or her.

This article will answer the kind of questions that are often “googled” after a person has been released from jail following a OWI arrest, and that go something like “arrested for DUI now what?”  We’ll look at how a DUI case unfolds, from first police contact, through your arrest, and all the way to the end of the court process.  As a Michigan DUI lawyer, I concentrate my practice in Oakland, Macomb and Wayne Counties, so our examination will focus on how things play out here, in the Tri-County, Metro-Detroit area.  Rather than 1 or 2 long installments, I have chosen to break this article into 4 much shorter pieces for easier and quicker reading.

11873522964_9cb8eb5a44_b-300x295DUI cases proceed through a certain set of fixed steps.  In order to keep this article interesting, we’ll go over some of them more briefly than others where it’s logical to do so.  For the reader interested in the gritty details of every stage, refer to the DUI section of this blog, where I have posted an in-depth examination of just about every facet of the DUI process within the more than 360 articles I have written, making it an almost unlimited resource for anyone interested in learning more.  Thus, if a reader wants to dig deeper into any specific part of the DUI process, he or she can search through my articles and find exactly what they’re looking for.  This installment is more of an overview of the process and how it plays out.

A DUI case begins well before your actual arrest, and sometimes, even prior to your initial police contact.  Most of the time, things start by getting get pulled over, but there are all kinds of other ways people wind up talking to a police officer.  In some cases, the police respond to an accident, while in other cases, the police find someone just sitting in their car somewhere.  Under Michigan law, just being in the driver’s seat with the keys in the ignition is enough to charge someone with DUI, as our Supreme Court has ruled that doing so is good enough to be considered “operating” a vehicle.  Although this literally punishes someone responsible enough to pull over and “sleep it off,” it doesn’t matter what you or I think of such reasoning, because, like it or not, that’s just the way it is.  The larger point here, though, is that no matter how it occurs, a DUI case always starts at or before the first police contact.

As a Michigan DUI lawyer whose courtroom practice is concentrated in the Greater-Detroit area (Oakland, Macomb and Wayne Counties), my team and I are in one of the 4 divisions of the 52nd district court almost all the time, and often enough, many times within the very same week. These 4 courts are all connected within the same division (whatever that means…), yet for as many similarities they share, there are also profound differences between them, and a DUI or other criminal case may play out very differently in one location over another.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/08/JudgeEmoji-1.2-300x178.jpgIn this article, I want to very briefly introduce each court, its Judges, and the municipalities within the jurisdiction of each. There are 10 Judges assigned to these 4 courts, and they have some predictable similarities, but also some some interesting differences. Yes, some are tougher than others, which means, on the flip side, that some are more lenient than others. These more “delicate” issues are best discussed within the confidence of the attorney-client relationship and in the privacy of the conference room. And if you read that last sentence as a skillfully worded deflection, you’re right.

None of the 52-4 courts are over the top in terms of fines and costs. This means that if you’re facing a DUI, and especially something like a 2nd offense DUI (or a 2nd offense DWLS or possession of marijuana case), then we have to focus more on saving your behind rather than your money.  The notion that DUI cases are all about money, which often has merit, falls a bit short in these courts. As lawyers, we usually skip the numerical designation when talking about any of these courts, and instead identify each of them by name of the city or township where it’s located.  With that, let’s begin in numerical, rather than alphabetical, order…