Initially, the idea was for this to be a light-hearted “ABC’s of an OWI case” article. I though, why not take every letter int he alphabet and apply to a word relevant to Michigan drunk driving cases? As things got underway, however, it became clear that any such endeavor was both challenging and serious. What follows is a listing of some of the most frequently used and significant words in the DUI world. To be sure, many of the letters could represent several relevant words, so a decision had to be make that struck the right balance between commonness and importance.
The DUI process is governed both by law, and to some extent, by local procedure. For starters, the way things are done in any given court must be legally sound. That, however, still leaves a lot of room for differences in how an OWI case can be handled in one court versus another. For example, some Judges are much more patient about allowing lawyers ample time to work a case, while others have what’s called a “rocket-docket,” and want everything wrapped up ASAP.
It’s critical for a lawyer to know such things. This is why my team and I limit our DUI practice to the courts of the Metro-Detroit area or Wayne, Oakland, Macomb, and the surrounding counties. This is important for anyone who hires a DUI lawyer. The fees paid should buy the lawyer’s experience in a particular court, rather than provide his or her tuition to acquire it. This is why one of the very first questions we ask anyone who contacts us about an OWI case is “where?” Within a split second, we can size up a lot about a case just based upon the answer.
As we turn to the the alphabet soup of OWI cases, it’s worth clarifying one more significant point: There actually is no “DUI” offense in Michigan. In fact, the actual, legal term is “Operating While Intoxicated,” or “OWI,” for short. There are plenty of other terms used, like OUI, OUIL (that was actually the previous legal term in Michigan), and even DWI, but none of them is “official.” By far, the most common term used by just about everyone is “DUI,” so we’ll often us that as we proceed through the 26 words defined below.
Although the word “arrest” may seem like the obvious choice for the first word of the first letter in a DUI alphabet, it’s pretty obvious that most OWI cases begins that way. The very first thing a lawyer should do following a client’s arrest is obtain the police reports, chemical test results, and any relevant dash-cam and body-cam video. In every OWI case the facts that led to ones’s initial police contact and everything that takes place thereafter is evidence. Every last bit of it must be carefully examined.
Chances are, anyone reading this has already gone through the arrest phase. Beyond questions of legality, there’s not much left to explain about it. In other words, for most people reading this, it’s a matter of “been there, done that.”
With those preliminary observations out of the way, let’s begin our alphabetical journey”
A: ALCOHOL SCREENING – Under Michigan law, before a person can be sentenced for a DUI, he or she must undergo a mandatory alcohol assessment, or screening. This is a written test that probes a person’s drinking history. Essentially, every answer has a certain point value, and the total number of those points is added up and compared to a scoring key. That key identifies whether the person has, does not have, or is otherwise at risk to develop an alcohol problem. To be clear, this is one of the most important parts of an OWI case. (See also INTERVIEW, PSI, RECOMMENDATION, and SENTENCE)
B: BAC (Bodily Alcohol Content) – This is the measure of the amount of alcohol in a person’s blood. In Michigan, the legal limit for Operating While Intoxicated is .08. If a person’s BAC is .17 or greater, he or she can be charged with the enhanced “super-drunk” (High BAC) offense. The specific chemical test (i.e, breath or blood) used to determine a person’s BAC matters a lot. So, too, does how it was administered and the results determined. For a lot of reasons, the lower a person’s BAC result, the better.
C: CRIME – Drunk driving is a criminal offense. Although most people who wind up in an OWI case aren’t “criminals” in any sense of the word, being charged with an DUI offense does subject one to criminal penalties. All the legal rules of criminal procedure apply in court. While an OWI case is, in fact, a criminal case, it is a special kind of criminal case. By extension, all DUI lawyers are criminal lawyers, but not all criminal lawyers are genuine DUI lawyers.
D: DRUGS – “Operating While Intoxicated” means doing so while under the influence of either alcohol or drugs, including marijuana. There is no longer a separate offense for driving under the influence drugs in Michigan, as the term “intoxicated” refers to a person’s impairment, regardless of the substance that causes it. Whereas a person’s BAC from drinking is rather easy to determine, it’s not quite the same for drugs. The science of drug testing is far from settled (especially as it relates to marijuana), and this can get rather complicated.
E: EVIDENCE – An OWI case is based upon evidence. Accordingly, any case is only as strong (or not) as that evidence. Every last bit of the evidence must be carefully examined and evaluated. Evidence is more than physical. It includes everything surrounding an arrest, like the alleged reasons the police officer had for stopping the motorist. In addition, the kinds of field sobriety tests used, and the way the officer administered them, matters. Therefore, everything about a case must be painstakingly scrutinized by the DUI lawyer.
F: FACTS – At its core, an OWI case is made up of facts. American founding father John Adams put it best when he successfully argued for the acquittal of British soldiers in the Boston Massacre case: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” In other words, the facts are the facts. Although nobody can change them, we, as lawyers, can – and certainly must – influence how they’re presented and, ultimately, perceived.
G: GOOD – It’s so easy to overlook, but in an OWI case (or any case, for that matter) good work on the lawyer’s part is the key to good results. Of course, there are many legal nuances to an OWI case. The simple fact, however, is that good old-fashioned hard work with a focus on the fundamentals is the real secret to producing the best possible outcome. A DUI lawyer must pay attention to the details and approach the case with a winning mindset. Successful outcomes don’t happen by accident.
H: HIGH BAC – This is a more serious, 1st offense OWI charge in Michigan. It can be made against anyone whose BAC is .17 or greater. It carries enhanced potential penalties and fines, including a mandatory longer suspension and restriction of the driver’s license. A High BAC charge can only be made if a person has no prior alcohol-related driving convictions within 7 years from the date of his or her arrest for the current charge.
I: INTERVIEW – A key part of the mandatory alcohol screening is an interview conducted by a probation officer. This is part of the “PSI,” or “pre-sentence investigation” process. This interview is very important. Among other things, the probation officer will assess whether or not he or she “buys” what the person is saying about his or her case. Imagine that someone had a BAC of more than 3 times the legal limit, but says “I don’t really drink that much, and I wasn’t that bad when the police arrested me.” The probation officer is going to conclude that either he or she is full of BS, or else has developed a high tolerance to alcohol. Accordingly, being prepared for this interview is critical. (See also ALCOHOL ASSESSMENT, PSI, RECOMMENDATION, and SENTENCE)
I: INTOXICATION – Although a person is considered “over the limit” with a BAC of .08, his or her measured level of intoxication matters. This goes much deeper than just being hit with a High BAC charge. No matter what, when it comes to how drunk (or not) someone was at the time of his or her arrest, less is always better. The higher someone’s BAC, the more it’s assumed that he or she has developed a tolerance to alcohol. This, in turn, makes him or her seem like a “big” (or at least “bigger”) drinker. Anything we can to do mitigate that in an OWI case is helpful.
J: JURISDICTION – This means where an OWI case is pending. Many cities and municipalities share a district court. For example, the 52-3 District Court in Rochester Hills has jurisdiction over all cases arising in Addison Township, Auburn Hills, Lake Angelus, Oakland Township, Orion Township, Oxford Township, Rochester, Rochester Hills, the Village of Lake Orion, the Village of Leonard, and the Village of Oxford. By contrast, the 41A District Court in Sterling Heights ONLY handles cases arising in Sterling Heights.
K: KNOWLEDGE – One key difference between lawyer and a DUI lawyer is knowledge. Beyond the legal stuff, it’s also important that a DUI lawyer knows the court and how things work where a case is going to be decided. That’s why we believe strongly in hiring local. You pay a lawyer to buy the experience he or she already has in a particular court. Your money shouldn’t be tuition for him or her to start getting it. One of our firms mottos is that if we don’t go there regularly, then we don’t go there at all. That’s why concentrate our DUI practice in the Metro-Detroit area, meaning the courts in Wayne, Oakland, Macomb and the surrounding counties. Anyone looking for DUI representation anywhere should keep the whole idea of “local” in mind.
L: LOCAL – All OWI cases are local. They are bought in the court for the municipality where the offense occurred. The location of an OWI case is SUPER important. It is always better to have a lawyer who knows the court, the people in it, and how things are done there. It’s never a good idea to bring in some lawyer from across the state to learn these things on your dime. As noted in the “KNOWLEDGE” section above, that’s paying tuition, not buying experience. The simple truth, however, is that some courts are just plain tougher than others. Whatever else, an OWI case is always an accident of geography. Nobody plans on getting arrested for drunk driving.
M: MONEY – An OWI case isn’t cheap. From the moment a person bonds out of jail, the money suck begins. It costs to get the car out of impound. Hiring a lawyer is expensive; nobody has ever gotten top-rate legal services for cut rate prices. On the flip side, however, it is also very easy to wind up paying WAY too much for nothing more than average representation in an OWI case. Fines and costs aren’t cheap, either, and one’s auto insurance is also going to go way up, as well.
N: NEGOTIATION – The overwhelming majority of DUI cases are resolved through negotiations. Unless the evidence in an OWI case is catastrophically flawed enough to get the whole thing dismissed, then the best possible deal will be achieved through a plea bargain. Negotiations always work out better when a party negotiates from a position of strength. This is why carefully examining the evidence is so important. Issues that, on their own, might not be enough to get a case dismissed outright can still be helpful in negotiating a better deal.
O: ORDER – Everything a court requires a person to do, or not do, is an order. There is an old saying that puts this in clear and simple terms: “The court speaks through its orders.” When a person is out on bond while his or her OWI case is pending, the requirement that he or she refrain from consuming alcohol is an order. When a person is placed on probation and must do something, that’s an order. Violating a court order in an OWI case subjects a person to being penalized, and that can include being sent to jail.
P: PSI (PRE-SENTENCE INVESTIGATION) – The PSI is the larger process that includes the administration and scoring of the alcohol assessment test, and the interview with the probation officer. It ultimately results in a formal sentencing recommendation that is sent to the Judge and recommends what the person should be ordered to do (like complete alcohol education or counseling) and not do, and how long he or she should remain on probation. (See ALCOHOL ASSESSMENT, INTERVIEW, RECOMMENDATION, and SENTENCE)
P: PROBATION – Unless a case gets dismissed outright, it is virtually certain that a person convicted of a DUI will be placed on some kind of probation. Although there are many facets to it, the most common type of probation in an OWI case requires a person to stay out of further trouble, abstain from the use of alcohol and any recreational drugs, and, quite often, to provide breath and/or urine test periodically to show that he or she is complying. Other terms can specify that he or she report (remotely, or in-person) and complete some kind of educational or counseling program. The terms of probation depend largely upon the alcohol assessment, interview, PSI and resulting sentencing recommendation.
Q: QUESTIONS – Anyone contending with an OWI case has questions. Beyond the “what if” types of questions that can go on forever, a person should be able to get clear answers to his or her concerns from a DUI lawyer. This blog is a great place to start looking for information; it is fully searchable and updated weekly. As of this writing, I have composed and published over 600 articles in the DUI section. As DUI lawyers, we have questions too, and they most focus on evaluating the evidence. From there, we usually ask “how to,” rather than “what if?”
R: RECOMMENDATION – The end result of the alcohol screening and larger PSI is that written sentencing recommendation, referenced above in the PSI (PRE-SENTENCE INVESTIGATION) section, that is forwarded to the Judge. This recommendation is drafted by the probation officer. In addition to administering the alcohol assessment and conducting an interview, the probation officer will also gather full background information about the person, his or her past and present life circumstances, and the facts of the underlying OWI case. All of this is used in formulating the sentencing recommendation. Perhaps the most important thing to know is that just about every Judge, in every court, follows these recommendations very closely. (See ALCOHOL ASSESSMENT, INTERVIEW, PSI, and SENTENCE)
S: SENTENCE – What ultimately happens to a person is decided at his or her sentencing. The “sentence” handed down dictates what he or she must do (like complete probation and an alcohol education class, or, in really bad cases, serve jail time) and what cannot be done (like consume alcohol, or leave the state without the court’s permission). This really underscores the truth of our slogan that “Success in a DUI case is best measured by what does NOT happen to you.” (See ALCOHOL ASSESSMENT, INTERVIEW, PSI, and RECOMMENDATION)
T: TIME – The element of time in an OWI case is something of the proverbial “double-edged sword.” On the one hand, there are aspects to it that cannot be controlled, like how long it takes for blood test results to come back. On the other hand, there are some facets that, as Michigan DUI lawyers, we can control. Often, doing so is very important to producing the best outcome possible. Generally speaking, cases work out much better when things are slowed down. Unfortunately, most courts try to move case through quickly (some far more so than others). This is why knowing how to manage time is an important skill for a DUI lawyer.
U: UNFAIR – Feeling that the whole system is “unfair” is rather common for anyone going through an OWI case. Because the vast majority of DUI defendants are otherwise law-abiding people, they often feel as if they’re being “treated like a criminal.” What’s more, the same person could wind up being treated much differently if his or her case is in one court versus another. This all goes back to the importance of location. Some Judges are just plain tougher than others, and anyone getting the short end of that stick will naturally feel that it’s unfair.
V: VARIANCE – When a plea bargain that is otherwise generally not permitted under the prosecutor’s office policy is successfully negotiated, it is known as a “variance.” Another term commonly used for this is “deviation.” Most county prosecutors have policies in place that restrict plea-bargain in certain situations, like when a person’s BAC is really high, or there has been an accident. When the lawyer seeks an exception to any such policy in an OWI case, he or she is requesting a deviation, or variance. This is usually done formally, through a written request, often accompanied by other documentation, to persuade the prosecutor to agree.
W: WAIVE – In the criminal and DUI world, the terms “waive” and “waiver” are used often. To waive something basically means to skip it. In an OWI case, for example, a person is entitled to an arraignment, where the charge against him or her is read, and he or she is informed of the maximum possible penalty that can be imposed as well as his or her constitutional rights. This is really a formality that is waived whenever possible. Of course, it should always be that the lawyer will have the client waive something when it is to his or her advantage to do so. Nobody should ever waive an important right, or otherwise give up any right that could complicate his or her legal position.
X: EXTRAORDINARY – In legal terms, extraordinary means exactly what the combination of the two words, “extra” and “ordinary” suggests; something beyond ordinary. Thus, when a court does something outside of the norm, it’s called “extraordinary.” The goal in an OWI case is to produce a successful result that is extra-ordinary. Even if the evidence is rock solid, our job, as DUI lawyers, is to go that extra mile and do whatever is necessary to obtain a better outcome. While it’s true that good work is the key to good results, it’s that extra effort that produces results that are even better, or in a word, “extraordinary.”
Y: YOUR HONOR – This is the proper term for addressing the Judge when he or she is on the bench. It is also fine to say “Judge” when he or she is on the bench However, it is incorrect, at least grammatically speaking, to address a Judge who is NOT on the bench as “your honor.” A Judge assumes the title of “The Honorable So-and-So” upon being sworn. Thus, a Judge can sign an order or other official court document as either “Hon. So-and-So,” Honorable So-and-So,”, “So-and-So, [Circuit or District] Court Judge, or even Hon. or Honorable So-and-So, [Circuit or District] Court Judge,” although that last designation contains a grammatical redundancy.
Z: ZERO TOLERANCE – There are actually several uses for the term “zero tolerance” in the DUI world. There is an actual offense in Michigan that applies to anyone under the age of 21 who is caught driving with a BAC of .02 to .07. Remember, the legal limit for adults in Michigan is .08. The “zero tolerance” law makes it illegal for person less than 21 years of age to drive with any alcohol in his or her system (the .02 threshold reflects the reality that anything less could be errant). Beyond this “baby DUI offense,” the requirement that a person going through an OWI case, or on probation as the result of one, provide breath samples to show he or she is complying with a “no drinking” order is another kind of zero tolerance, because a positive result will inevitably give rise to either a bond or probation violation proceeding.
As I noted earlier, the 26 words defined above represent my (admittedly subjective) choice of those that strike a balance between most common AND relevant in the DUI world. This is hardly meant to be any kind of comprehensive DUI dictionary.
For the reader interested in learning more about the Michigan OWI process, this blog is a great place to start. It is fully searchable and updated weekly with new, original content. At the time this piece gets published, there will be more than 600 articles in the DUI section alone. There is simply nothing like it anywhere. Don’t take my word for it, though; check around for yourself.
If your facing an OWI charge, do your reading, and then start calling around. You can learn a lot by speaking with a live person. If your case is pending anywhere in the Metro-Detroit area (meaning anywhere in Wayne, Oakland, Macomb, or any of the surrounding counties), make sure you give our office a ring, as well.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. We’ll even be happy to compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. at either 248-986-9700 or 586-465-1980.