The role of a Prior Record (or none) in a Michigan Criminal or DUI Case

One of the most important issues that I face as a Michigan criminal and DUI lawyer is a person’s prior record.  It is absolutely critical to how things work out in just about every case.  Curiously, it is a subject that has largely been overlooked on lawyer’s websites, mine included.  In this article, I want to take a look at how a person’s prior record can affect the outcome of his or her case, and how this applies across the board, from serious things like 3rd offense (felony) DUI all the way to a simple traffic ticket, and everything in-between, including 1st and 2nd offense drunk driving cases, as well.  This is not a pretty topic, because the simple truth is that it’s not good for a lawyer’s business to be writing things that can make a case seem tougher as opposed to all the things that can make it better, but your record is a necessary topic to discuss, and any lawyer worth a nickel is going to have to address it at some point with his or her client.  I think it’s about time to drag it out into the light and give it a good once-over.

criminal-clipart-criminal-clipart-1-281x300In some cases, the importance of a prior criminal record (or lack thereof) is obvious; for example, in DUI cases, because a person with a prior conviction within 7 years will be charged with a “2nd offense.”  In DUI cases, there is no getting around a case being a 2nd offense or 3rd offense, whereas a person arrested for something like possession of marijuana may be charged and ultimately treated like a 1st time offender, even if he or she has a prior record for the very same thing.  Worse yet, there seems to be little or no logic as to why, beyond just being “lucky,” in a manner of speaking.  In other situations, a person may have a prior record for a completely unrelated offense, or even multiple offenses; those convictions may be recent, old, or a even a combination thereof.  It goes without saying that having NO record at all is better than having any kind of record, but given that a prior scrape or two with the law isn’t that uncommon, lots of very good people have some missteps in their past.  That said, I’m sure the reader understands that the fewer of those on record, the better.  This should make sense without the need for any kind of further explanation.

This can get weird, however, because in the real world, a prior record can be a big deal in some cases, and not matter much, or even at all, in others.  I have, for example, represented someone with a rather bad record charged with his or her 1st DUI and have been able to easily reduce the drunk driving charge because the person doesn’t have any prior drinking and driving convictions.  By contrast, there are some really tough jurisdictions (thankfully most of which are NOT in the Detroit-area) where a single, unrelated and old conviction can be a stumbling block to a plea bargain in a new and completely unrelated case.  With these somewhat extreme and opposite situations serving as bookends, let’s turn now to how things most often play out in the real world.

One of the best things a lawyer can say about his or her client to both the prosecutor and the Judge is that he or she has no prior record.  You don’t really need to be a lawyer or work in any part of the judicial system to understand this.  It has more impact, of course, when the person about whom it’s said is older, rather than younger.  A 19-year old with no record isn’t as impressive as a 29-year old in the same situation, while both a 39-year old and a 49-year old look to be much less of a risk to be poised to embark upon a new career as a criminal, or outlaw.

As it turns out, though, lots of really good and successful people do find themselves making a mistake that winds up on their record, and it can happen more than once to even the best of us.  This is especially true for DUI’s.  Although a DUI is a crime, it has a kind of hybrid status in our consciousness: Sure, we know it’s a crime, but it’s not a crime like stealing or breaking into a house, at least until someone gets hurt.  And if no one was hurt, then it’s more like a misstep than anything else.  Even when a person is arrested for a 2nd or 3rd offense drunk driving, and even though the whole “criminal” aspect of the situation is inescapably bearing down on them, it is negated, at least in part, by an equal, if not stronger element of problematic drinking.  In other words, the pathology of the person’s relationship to alcohol seems to explain their predicament better than does the idea that they have chosen to be a repeat criminal offender.  This does not get them a free pass, and it doesn’t necessarily mean that things will work out that much better for them, either.  Some Judges don’t care if you are a repeat drunk driver because you have a serious problem or because you just don’t give a sh*t; either way, they see you as a threat from whom the public needs to be protected.

There really is no clear-cut lesson here beyond the fact that your prior record, or lack of one, matters.  If you don’t have one, all the better.  And unlike so many things in the law, where what people think they know is often incomplete and therefore wrong, on this topic, it’s usually not.  Almost instinctively a person knows that no prior record is better than any record, and that less on your record is better than more, and that the older anything is, the better, as well.  This is all true.  Beyond that, however, we get into kind of a blender of mixed relevance, with any number of ingredients.  In any criminal or DUI case, location matters.  People matter; the mix of prosecutors and Judges is as important as anything else.  A person facing a DUI with an old marijuana conviction from 12 years ago may have a tougher go of it in one place than he or she would, even with multiple prior and more recent convictions, in another.  Perhaps the greatest answer ever given to a legal question applies here:  It depends.

Make no mistake; your record matters.  If you’re not asked about it straightaway by any lawyer with whom you speak, then you should be asking about it.  If you don’t have a record, or if it’s not that bad, or has otherwise has been clean for a long time, that should be an important consideration in the analysis of and discussion about your case.

If you are facing a criminal or DUI charge in the Metro-Detroit area (Wayne, Oakland or Macomb County) and are looking for a lawyer, do your homework.  Be a good consumer, take your time, and read what the various lawyers you are considering have written.  I always advise to “read between the lines,” as well, because you can learn a lot about someone from what they don’t say, or otherwise omit to discuss, in the same way you can from what they do address.  When you’re ready to learn more, pick up the phone and start calling around.  You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 248-986-9700 or 586-465-1980.  All my consultations are handled over the phone, right when you call, making things much more convenient for both of us.