Michigan Criminal Defense Lawyer Blog
Many of my blog articles in any given week are the result of something that happened in the preceding few weeks. Recently, I had an experience while handling a DUI case in a local, Detroit-area Court that reminded me to always keep my eye on the “bigger picture.” This article will focus on that “bigger picture” in a DUI case pending in Macomb, Oakland or Wayne County. Sometimes, we can lose sight of that bigger picture as we get caught up in all the details of something. Sometimes, in a DUI case, we can lose sight of the fact that the “bigger picture” is about alcohol.
As a Michigan DUI Lawyer, I spend a lot of my time examining evidence in Drunk Driving cases. This can range from visiting the scene of a DUI Arrest to watching the video of a DUI Traffic Stop, the Field Sobriety Tests and the “booking” video of a person being brought into the Police Station to be processed and take a Chemical Breath Test. No matter how “solid” a case may look, or feel, I have to examine it from every angle, and leave no stone unturned in my quest to find a problem with the evidence, or some other factor that will allow me to have the case dismissed, or knocked out somehow. Even when I don’t find some “fatal” flaw with the evidence, I usually find something that I can use to drive a much better deal for my Client.
It goes without saying that you won’t find something unless you look for it. Examining the evidence in a DUI case is a lot like digging for gold, in the sense that it takes a LOT of digging to find any gold. Statistically, it’s not a very high percentage of DUI cases that wind up getting dismissed outright. Everyone has heard horror stories about how tough this or that Judge in the Detroit area is on DUI Drivers. By contrast, how many stories have you heard about a particular Judge known for throwing DUI charges out of Court? Can you imagine the political fallout for being the Judge who dismisses ANY appreciable number of DUI cases? Remember the recent election, and the ads accusing various Judges and candidates of being “easy” on some rapist, or other criminal?
Realistically, there is almost NO political downside to being the Judge who is too tough on Drunk Drivers. The opposite, however, is not true.
The point I’m driving at is that while I work hard to find a way to beat a DUI charge, it certainly does not happen in the majority of cases. And for all the wonderful sales pitches a person facing a DUI charge will hear as a potential customer of legal services, the simple fact is that most DUI charges are not thrown out, period. In fact, according the Michigan Secretary of State:
In 2010, 41,883 alcohol and drug-related driving arrests were made. Male drivers were three times as likely as female drivers to be arrested for impaired driving, with 31,021 men arrested compared to 10,862 women. There were 41,887 persons convicted of operating under the influence of liquor or other impaired driving offenses. Some of these convictions include arrests made in prior years.
Beyond all of the technical and legal considerations we toss around as we look for a defect in the evidence of a DUI charge, we sometimes overlook that those very rules and technicalities are in place to prevent an innocent person from being convicted of a crime they did not commit. At least in theory, the whole point of critically examining and challenging the evidence is to make sure a person who did not have too much to drink doesn’t get convicted of a Drinking and Driving Offense.
While anyone facing a DUI is hoping for a break, everyone would agree that the intended purpose of the whole process is NOT to find a way to help someone who really was driving “over the limit” find a way to sneak out of the charge. In a pending case, once it is established that a case is NOT going to be dismissed or tossed out by the Judge, then a person is left to face a charge of Drunk Driving. From an evidentiary point of view, that means that the person operated a motor vehicle after having consumed enough alcohol to either “impair” their ability to drive, or to register .08 or higher on a breath test. Beyond all the technical and legal stuff, however, what does that really mean?
It means that, if you want things made better, you need to get on the same page as the Court and Judge who have your case, and do that real fast. You can be mad about having to face a DUI charge all you want, but if your best plan to fix your situation is just to complain about it, and say useless things like “this is bull$#**,” you aren’t doing yourself any good. Instead you need to get on board with what works, and what will make the outcome of your case better. I can certainly help with that.
What happened while I was in Court on a DUI case recently goes right to the point: I had previously sent a request for certain of the maintenance Records for the breathalyzer machine at a local Police Station, and had not received them by the time of the first Court date. In this particular Court, the Judge conducts a lot of the administrative, or scheduling type of stuff back in his Chambers and office. I met with the Prosecutor, explained that my discovery request had not been fulfilled by the Police Department, and told him I needed a few more weeks. He agreed, and I took the Court file into the Judge’s Chambers to have him sign off on the adjournment. As I approached, the Judge looked up at me and asked, “What’s the charge?” When I answered that it was an OWI (meaning a Drunk Driving case), he next asked, “What’d they blow?” The Judge DID NOT ask me what the “alleged” breath test results were; he wanted to know what numbers came up on the machine.
I knew my answer wasn’t going to make him happy, but I had no choice but to tell him “.22, Judge.”
“Any priors,” he asked.
“Yes, about 3 years ago.” My Client is facing a 2nd Offense charge, having had that prior DUI the Judge asked about.
“How much time do you need,” the Judge inquired.
“About 3 to 4 weeks, Judge,” I responded.
“Fine, but she’s going to test 6 times a week from here on out. She’s an alcoholic.” And with that, the Judge granted my adjournment and changed my Client’s Bond Conditions to require her to give a breath sample 6 times a week.
For purposes of this discussion, we can skip all of the “why” and “how” and “what if” stuff. The point I’m making is that, unless a DUI case is dismissed right out of the gate, to the Judge, and to the Court system at large, the whole focus of the case is going to be on alcohol. Everything, from the point a case is NOT dismissed, is going to be about the person’s drinking habits. The inquiry is all about, and really only about, whether the person has an alcohol problem, or has at least the potential for one to develop. This is EXACTLY why so many people are required to “test” while the case is pending, and why “testing” is the foundation of so many Probationary Sentences. To the Judge and the Court, the most important thing is to do a risk assessment of the person as it relates to their drinking, and then take the appropriate remedial action.
I would bet that anyone who has a prior DUI understands this rather well. If you’ve been through the system before, particularly in Oakland County, then you are probably nodding your head.
In Part 2 of this article, I will continue this examination of the understated role of alcohol in a DUI case, and point out how my rather special experience and training in the onset, diagnosis, and treatment of an alcohol problem helps me make things really and significantly “better” for anyone facing a DUI charge.