Many clients contact me with an active warrant for their arrest. This is a scary situation, because the police could come knocking at your home, work or pull you over in your vehicle. The last thing you want to happen is for the police to "catch you" and arrest you, because it will create the perception that you were avoiding or "running" from the authorities.
The truth might actually be you are not aware of the open warrant or you found out about it, and you have plans to turn yourself in or hire a lawyer to take care of it for you.
When a client contacts me in this situation, I tell them to calm down, sit tight and keep a low profile. I have my team contact the court, prosecutor and police, and we request that the court cancel the open warrant for arrest, and either waive the arraignment, or set the matter for both an arraignment and pretrial.
The case is now active, but there is no active warrant for an arrest. This means the case has started, but nobody is looking for my client and they are not subject to arrest. At this point I would have my client begin my proactive program, and we would get to work on our goals.
To read more about my proactive approach, click here:
It's nearly unheard of to avoid some sort of jail or probation for a Michigan drunk driving case. When I speak to new clients, we set expectations for their case, but I also tell them to big dream on the outcome. The big dream is not the expectation, but rather something to motivate the client; the closer we get to that, the better the outcome.
I tell clients that past clients of mine have earned a sentence of no probation, meaning only fines and costs were paid with no jail or supervision by the court. Every client of mine goes on the same proactive program from day one, so each client has the same opportunity to earn that result. The court, probation staff and facts of the case will be major deciders in the outcome of the case, but each client is empowered to reach that goal if they are willing to follow my lead.
To learn more about how my clients work toward those BIG GOALS, read more here
I have an implied consent hearing coming up, what's going to happen when I go to the secretary of state?
I would strongly encourage you to have an experienced DUI lawyer attend this hearing with you. If the implied consent is upheld, you will have 6 points added to your license and your license will be suspended for a year.
The officer will show up and testify, you will have the opportunity to cross-exam them. You will have the chance to testify, and the officer can cross-exam you - if you have a lawyer, your lawyer would do the questioning and help prepare you.
Here are the four issues which can be explored at this hearing. You only need to win on one to win the hearing. Anytime a client finds themselves in this position we file the hearing request and prepare to win. Unfortunately many clients contact me when it’s too late, and do not realize the consequences of the situation.
(a) Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in [MCL 257.625c(1)].
(b) Whether the person was placed under arrest for a crime described in [MCL 257.625c(1)].
(c) If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.
(d) Whether the person was advised of the rights under [MCL 257.625a(6)].
Part (a) means the cop can't arrest you for a DUI based on a hunch; they need probable facts and observations such as driving operation of the vehicle, some sign of intoxication or impairment, usually officer observations, field sobriety tests, incriminating statements and PBT test.
Part (b) means the cop can't arrest you for possession of marijuana, resisting arrest or any other non-DUI offense, because the implied consent would not be triggered for those offenses.
Part (c) means the person arrested said something other than "YES" to taking the chemical test - wishy-washy responses, delays, unclear responses are all considered refusals by every hearing officer that I've appeared before in Michigan
Part (d) means the chemical test rights were read by the officer usually off a standard form.
In my experience, I've found part (a) to be the most fruitful for taking testimony, while part (b) is fruitful for tricking the cop when multiple charges are part of the case. Parts (c) and (d) are tricky to win because cops have been trained to stick with the standard protocol and don't deviate from the standard operation.
It's very common to have a potential client reach out to me with various questions about police conduct. One of the most common things I hear is the cops did not read my client their Miranda rights; while it is good practice for an officer to advise you of all of your rights, it is not necessary. Your case will not be dismissed or go away because the officer failed to read these rights.
Miranda rights only apply to statements made by the arrestee while in custody. In a drunk driving case, the most common incriminating and useful statements for the prosecutor to use are statements about consumption of alcohol and statements about driving the vehicle. The issue is that most of these statements are made on the side of the road before Miranda would apply. If these statements are made before field sobriety tests, during them, soon after before the decision to arrest has been made, they are admissible even without reading your rights.
If in the rare case an incriminating statement is made while in custody after the arrest, and the Miranda rights are not read, then you could move to have these statements suppressed.
Other than not reading Miranda rights, how else can "cops screw up"?
Most common are a bad stop of the vehicle (lacking reasonable suspicion), lacking probable cause to arrest for drunk driving, not following the proper instructions for field sobriety tests, not reading the chemical tests properly, not following the rules of the Datamaster test.
I encourage you to take some time to reflect on your case, and write down everything that happened. When we speak, I will want to know everything; things you don't think would be important could be crucial to winning your case.
Tell your DUI lawyer to get off his ass, and help you earn an exceptional result by WORKING WITH the prosecutor - pitch forks down!
When most people are charged with a crime, they view the prosecutor as the enemy, and the judge as the bias referee to the case.
In a lot of cases that is true if your approach is to storm the courtroom doors on day one, and ask for a fight. There are times to do that, but not on day one, and it should not be the default approach.
I take a very different approach. As a former prosecutor, I put myself in the shoes of the prosecutor, and say "ok, what does the prosecutor think about this case". My first conversation with the prosecutor acknowledges both the good and bad about the case, and sometimes I begin with the bad parts. Showing the prosecutor that parts of the case make sense to us as well, and we acknowledge those issues, it takes the wind out of their sails and allows us to focus on the more favorable parts of the case.
When you're charged with a crime, there are going to be things you don't like about the case, and that's just the nature of the beast. It's about setting important goals and focusing on big picture items. Figuring out the breaking point for a prosecutor or their motivations allows me to resolve cases for clients.
By leading with the bad parts of the case, I can quickly pivot to all of the proactive items that my client is working on, and highlight the next steps in the process. For example:
My client was arrested for a DUI where that was an accident, and they are double the legal limit on the chemical test. Uh oh that sounds bad from any prospective, but what does it really say about the client? If this client has no history of criminal offenses, they hold a steady job, they have a family and are otherwise responsible, isn't there some room to create a more complete picture of this case?
99.9 percent of criminal attorneys will sheepishly walk up to the prosecutor and say "uhh, my client is 45 years old, no priors, has a wife and kids, and works at GM, can I have a sweet deal?"
As a former prosecutor who heard that same garbage story 1000's of times - come on man! Give me something to work with - I am not going to bat for your client because they have kids and a job - that sounds like a few million people in Michigan who didn't drive drunk, what else do you have for me?
Instead I would walk up to the same prosecutor, and start with the bad - "yeah my guy's BAC was pretty high, accident too, I can certainly see why you would be taking a closer look at this case, and have some concerns"
Better me to say it than the prosecutor be fired up about it. Cue the pivot to the good stuff.
"Yeah, so my guy was certainly quite alarmed too - once he could reflect on this - he's lucky to be alive, standing here in court, and nobody else was harmed by his poor choice" - "that's why he underwent a substance abuse assessment right away, jumped into 3 AA meetings a week, and he's been doing daily alcohol testing twice per week - he's up to 25 days now, 50 clean tests, no drinking" - "he's also working with a counselor on a weekly basis, and spending 7-8 hours a week working with a local non-profit" - He's really trying to keep himself 100 percent focused on sobriety, positive community engagement while maintaining his role as dad and full-time employee for GM where he's worked for 25 years
Doesn't that sound A LOT better than "uhh my guy has a job and kids so give him some sweet deal"
I'm not even looking for the sweet deal at this point - if they want to offer it up, I'll consider it, but I'm more likely to take a step back, and say "my guy is working hard, and he knows he's not where he needs to be yet, and may never be there, but he's just asking for you to keep an open mind and consider the full story, not just what's in the police report"
This prosecutor may need to go speak to their supervisor prior to the next court date, and I would follow up with a letter with a detailed outline of this plan and documentation. Be respectful of the prosecutor's time, make their life and job as easy as possible and motivate them to get the deal done.
That's how you work with a prosecutor and get good deals that both sides feel comfortable with - EARN IT!
If the prosecutor won't give you what you want, they will expect you to litigate and both sides will live with the outcome, but to bring out your sword on day one, you could be missing out on a great result, or making the case toxic and stressful to all parties.
So you've triggered the implied consent under Michigan law - now what?
Well you have 14 days to file an appeal or your license is gone for a year. Assuming you send that paperwork in, be prepared to wait a few weeks before a hearing is set. The hearing will be set at the nearest SOS location to your address. The officer(s) will receive the same notification to appear. During this time your license is valid, so you can drive as you normally would.
At the day of the hearing, you and your lawyer show up at the location and keep your fingers crossed that the cop doesn't show - why not? Because if the cop doesn't show then you win automatically!
If the cop shows, you're probably going to lose? Why? Because the burden is so low and it's a 51/49 standard of decision vs beyond a reasonable doubt used in criminal cases.
The hearing officers are also usually inclined to uphold the suspension and help the police officers meet their burden on a regular basis. It's frustrating to "trick" the officer or have the officer give incomplete testimony to then have the hearing officer say "hey officer so and so, what about THIS or THAT?
Boooo! - I've had this happen numerous times - the police officer doesn't meet their burden, and the hearing officer fixes it for them.
I usually go into these things looking for one point to hammer home or one slip up to take advantage of
At these hearings, the 4 people in the room are:
The client, the defense lawyer, the cop and the hearing officer
The hearing officer sits in front of the other 3 or are on a video conference from Lansing. Everyone states their name, and the hearing officer asks if any issues need to be discussed before proceeding. Nope we're ready to go!
Both sides usually waive the opening statement. The officer is up first.
Officer practically just reads their police report - they hit on the probable cause to arrest, the fact they arrested client for a DUI offense, testify they read the chemical test rights and finally that my client refused. Most cops have the ability to spit out enough words to meet those 4 points.
The standard is so low that confusion about the rights, back and forth about them, questionable probable cause all get a rubber stamp on this low burden.
If that testimony gives me a major point to argue my case, I will not even cross the cop. The only reason to cross the cop at this point would be enhance a potential trial impeachment by creating testimony to be compared to at a later date, but if my criminal case is already resolved or we're likely resolving, it's more beneficial to keep the secret weapon in the bag.
Nope your honor, no questions from me. I'm not going to ask the cop about the issue I found because they simply forgot to say something vs they said something wrong. If I ask them about it, it gives them a chance to fill in the blanks.
So by passing on the cross, I want to get to the closing and hammer my point home without further testimony.
So now the hearing officer asks if my client wants to testify. Nope, not today.
Go closing arguments? Cop usually just says no, I will rely on my testimony.
My turn - your honor, the officer failed to meet their burden on ____________
The last two times, the officer testified they arrested my client for resisting arrest and never mentioned an arrest for a DUI - that fails to meet burden on "must arrest for a DUI offense" - then I had a cop testify in detail about how "drunk" my client was, PBT, field sobriety, blah blah blah, but never said anything about driving - only the client was found passed out in his car. Sure doesn't sound great, and boy was my client drunk, but there's no testimony you had any evidence my client drove the car - opps.
Here comes the hearing officer to fix both issues!!! - on the officers rebuttal closing, the hearing officer will ask the officer to simply "clarify" - cough cough, fix their incomplete testimony and provide more detail to the hearing officer. I argue that this information was not in the original testimony, hearing officer disagrees that the information was in the testimony, but the hearing officer simply wanted to clarify and had questions before making decision. The hearing officer sees the boxes that need to be checked, but the words must come from the cop's mouth.
At least my client has the ability to get a hardship license at the circuit court!
Let's start by saying that 99.9 percent of people who plead guilty to a drunk driving case, or are found guilty at trial will end up on probation in Michigan. It's the default, the most likely outcome, and probably what will happen in your case if you're reading this, but it's possible to avoid.
How do I know? I know because a few of my clients avoid probation each year, and it's because they went above and beyond on my proactive program. It takes the right judge, the right case, and a very motivated client, but it happens.
What does it mean to avoid probation? Well it saves you a lot of money in not having probation oversight fees and the cost of testing for drugs and alcohol. It means no one telling you when and where you can travel or not travel, and your life is back to normal.
If you've been arrested for a DUI and ultimately are convicted or plead guilty, it might not be the best time to begin drinking again, but each client will make their own decision, and frankly not being on probation allows you to drink (responsibly and not drive).
If avoiding probation is a goal for you or someone you care about, don't get your hopes up, but let's talk about the court, the judge, the case, and your motivation to go above and beyond. You might be one of the handful of my clients who avoid probation.
Michigan DUI Arrest Warrant - Turning yourself in to the court or waiving the arraignment with an attorney
When arrested for a drunk driving case, it's not uncommon to be released without actually being charged with a crime. The police must have the prosecutor review the case prior to charges being issued, and the officer must swear to an arrest warrant with the judge.
If your case involves a blood draw, that sample may take weeks or months to best tested by the MSP lab, which will delay charges.
This means that you're released and told the court will contact you when you're charged. I would strongly advise any potential client to NOT follow that course of action, because the court is not going to be on top of it, and it's likely that an arrest warrant is put into place without your knowledge. You are then subject to arrest while driving, at home or at work.
You will also give the false impression to the prosecutor and judge that you're on the loose and avoiding court when the truth is that you're not even aware about the charges. Your chances of having a favorable bond go down if you're no where to be found and have to be brought in with handcuffs on. I've seen this too many times to be comfortable relying on the court.
I would advise any client who has been arrested for a DUI and a released to contact an attorney about the case. That attorney can file their appearance with the court, prosecutor and police and request to waive any warrants and most arraignment dates. You are no longer relying on the clerks at the court tell you about your charges. Your attorney can handle that and simply arrange a court date.
The other major benefit of working with an attorney on day one is the ability to impact your case in a proactive manner. Other attorneys do not practice this method, but it's my opinion that it's the best way to approach a serious situation.
When charged with drunk driving in Michigan, you're going to feel like the world is against you, and you're being judged by everyone. You're not wrong. A DUI arrest carries a very negative first impression with the judge, prosecutor, police, probation and the community.
When your case starts, the only thing these key players know about you are the facts of your case; if an accident is involved or a BAC close to or more than double the legal limit, the impression is even worse. For 99 percent of cases in Michigan, this is a lasting impression that most defendants never escape. My clients are different.
On day one, my clients are proactive, and put a number of key steps into place at the very beginning of the case. Yes, the same first impressions form with my clients, but that first impression is soon changed into a "true impression" when I get the prosecutor and judge to not only see what's in front of them from this case, but who my client has been in the past, and what they are going in the present to show growth, and turn the case into a learning experience.
Most people view the prosecutor, and sometimes the judge as the enemy or at the very least "the other side" - this is the WRONG approach. As a former prosecutor both in New York City and here in Michigan, I view the prosecutor as a major asset in my client's case. Win over the prosecutor, and new doors open for a positive outcome for your case. The prosecutor is the one who controls what you're charged with, and controls what can be offered in terms of dismissals and reductions.
Most defense attorneys take a weapons up approach with the prosecutor, which both annoys and frustrates the prosecutor. There's a list of defense lawyers that prosecutors dislike for being overly aggressive no matter the situation. I've had prosecutors tell me various times, "that guy" or "that woman" referring to another defense attorney; the prosecutor is NOT going to go the extra mile for them and their client.
There is a time to be aggressive, but it's not day one. Even when contesting the charges, things should NEVER get personal between defense lawyer and prosecutor, but many defense lawyers do this, and it's stupid. They are not helping their client by "going to war" with the prosecution.
I've worked out 1000's of great deals with prosecutors because I started the conversation about their kids, their vacations, their interests in life, rather than punching them in the nose on day one. If you want a lawyer to burn the courtroom down, that's not me.
If you're arrested for a DUI in Michigan, it's likely there's some blame to go around or you would not have been arrested - yes we might get your case dismissed, win at trial or another great outcome, but there's always something to learn from this situation. We need to come into court humble and open to this being a learning experience. My clients change the perception of their case on day one, and at the end of the case, no matter the outcome, they are a better human being for having gone through the case.
I'd rather get a great result for my client, and have the judge and prosecutor praise my client's efforts than dirty looks to be thrown around, and everyone to be on edge about the case. The best results come when both sides work together. I make my clients exceptional, and they earn the same exceptional results.
BAC levels close to the legal limit in Michigan DUI Cases - What can be done to beat a drunk driving case
When a client contacts me with a drunk driving case, it's important to discuss any chemical tests. The two most common are the Datamaster or a blood draw; once we know the number, we put together a timetable of alcohol consumption to see if the BAC level at the time of the exam could be accurate, or if there is a major issue with it.
If the numbers make sense, we're still going to question the result, and make the prosecutor provide evidence beyond a reasonable doubt to its accuracy, but it may not be our #1 focus, we can make other parts of the case our true leverage point.
If my client says they drank 8 beers in 3 hours, and the BAC level is 0.12 or so, that makes sense. Each beer is about 0.02, which would be roughly 0.16 of alcohol, but we have a few hours of consumption to burn some of the alcohol off, and lower the number. If the same client says they had 2 beers, and we have a BAC level of 0.20, either the client is not telling me the truth, or there is a major flaw in the test result.
If a client has a BAC number close to the legal limit, which I consider 0.08 to 0.12, the timing of consumption is very important. If a client has 4 beers in 2 hours, but 2 of those beers were consumed right before leaving the bar, and the client is pulled over soon after, those beers are unlikely to have "registered" in my client's body. Yes, those beers show up an hour later during a Datamaster or blood draw, but the legal standard is the BAC level while driving the car.
The Michigan jury instructions will instruct a judge or jury that they may consider the chemical test result to be the same as when the person was driving, but applying common sense, that is simply a lazy jury instruction put in place to make the jury's job easier to convict. Imagine if the prosecutor had to show the BAC number when actually driving?
You'd need to have 1000's of Datamaster machines in the back of vehicles and hustle the driver into taking a test, skipping key procedures like the 15 minute rule etc.
There's many other factors that go into the accuracy of the BAC reading, but I find the timing and amount of consumption to be the easiest for a jury or judge to understand at trial. Attacking the blood draw or testing or the Datamaster machine is certainly viable, but it's more difficult to get a jury to understand how a machine did not work vs simply applying common sense.
If you or someone you care about has a DUI case in Michigan with a BAC number near the legal limit, they have a viable built in defense, which can be a winner at trial if presented in the right way.
DUI Attorney & Former Prosecutor Jonathan Paul