Those were the words of a judge in a recent drunk driving case where my client stepped up and went above and beyond on my proactive program for 5 months prior to resolution. Some DUI cases in Michigan will take a long time to resolve - it may be because of a blood draw, a delay in charging, slow court docket or a number of other reasons. I always tell clients that "time is our friend and to use every minute to improve your case"
When charged with drunk driving in Michigan, you cannot go back and change the past, but you can control the present and the future, it's just up to the client if they are willing to be humbled by the experience, and turn a negative into a positive and work toward the very best outcome. Some people are defeated and defensive when charged with drunk driving; they put their head in the sand and hope that things go away - a serious DUI charge is not going away in Michigan.
Recently worked with a client for the past few months; this particular client followed my proactive program, and was going above and beyond. I was very proud of his progress and because of his hard work, the prosecutor was willing to offer us a great deal. The client rebuilt his life, got healthier, refocused on his family, career and what makes him most happy in life.
When it came time to be sentenced by the court, my client was shocked to read the probation recommendation. Despite sharing months and months of voluntary daily alcohol testing, an impressive amount of AA meetings, community service, alcohol education and counseling, the recommendation was so boilerplate that it seemed like probation completely ignored how much work my client put into his case. He was actually told that his 5 months of hard work meant nothing and it would not matter - the probation officer literally said "why would you do this"
Now how silly does that sound? You get someone arrested for drunk driving with no prior record, and prior to even going to court and working out their case, they decide to test 350 plus times on a portable unit, go to nearly 100 AA meetings, work with a counselor for months and give back valuable time to the community. What's the way that the criminal justice system should react to this?
Unless you're my client you're just sitting back on the couch and waiting to go to court, hoping things workout with a box full of excuses, apologizes and "right answers". The majority if not most DUI defendants walk into court and sound ridiculous - promising to never do it again, apologizing to the judge, and saying "I learned from this" - that's a bunch of bullshit and I thought that when I was a prosecutor on DUI cases in NYC and here in Michigan.
So when a client of mine steps up and takes over control of the case with these steps, 99 percent of the time probation praises them and offers up a very favorable recommendation, but a few times a year it doesn't go the way it should - so what do you do?
We walked into the courtroom and told the judge the truth - the recommendation DOES NOT reflect my client's hard work over almost the last half year and we want to make sure the court is fully aware of all of his steps and progress. We brought all of the documentation to court.
Judge sat back, smiled and praised the client for about 5 minutes about "no client has never done as much as you have done, and I am very proud of you" - the judge said this - made my client feel like his hard work was worth it and we turned this negative experience into a half-year of growth. The judge completely changed the recommendation and tailored a very specific favorable sentence for the client and made him very happy. It went from a standard sentence to probably the most favorable DUI sentence this judge has ever done, because the client earned it and we were NOT afraid to make the judge aware of his impressive work.
I work with a number of clients each year that are arrested in Michigan for a DUI while on a business trip or visiting friends and family. When you combine alcohol and not being familiar with the roads or where you are going, this creates a situation where it's easy pickings to be pulled over by a police officer - especially late at night.
In Michigan, the police departments are looking for drunk drivers late at night. With less cars on the road, your chances go up of being pulled over, add in darkness, roads you're not familiar with a and motivated cops to pull over drunk drivers, there is a good chance you will be pulled over by violating a traffic law.
Many of these "traffic violations" would not cause a police officer to pull you over at 3 pm, but at 3 am, you will be pulled over. This could be something as innocent as not using a turn signal or a wide turn into the wrong lane; things we sometimes take for granted during the day, they become reasons to be pulled over late at night.
If you've been arrested for a DUI in Michigan, and you're not from the area, you are concerned about travel, going to court, and if a judge will even let you leave the State of Michigan. These are very valid concerns, but let me put you as ease.
If you are arrested for a DUI in Michigan from out of town, we will get you permission to "go home", we will have flexibility in when we go to court, and you will be on top of things by being proactive. We will resolve your case in a way where it's very likely any probation you serve can be while living out of state; a judge is NOT going to force you to leave your family, job and life to serve probation here in Michigan. Yes, it does create some challenges, but it is a manageable situation if you take control of things from day one by being proactive.
Take a look at how being proactive can put you in the driver's seat in your case - click here to learn more about the proactive program
Avoiding DUI Probation in Michigan - Being proactive on your own watch to avoid 24 months of supervision
When I begin working with a drunk driving client in Michigan, it's important to sit down to discuss goals for the case. All of my clients are extremely proactive from day one, which in the past has allowed many of my clients to avoid all probation for a DUI in Michigan. This may seem far fetched and unrealistic, but I have many clients who will tell you, we made the impossible happen.
This possibility is most likely in a case where there is a multi-month delay before going to court, and my client has 30-90 days worth of proactive measures in the books. Once we go to court and begin to work things out, that may add another 30-60 days of proactive measures to our progress.
By the time we go before the judge for a sentence, the client may have 3-6 months of proactive work complete, and the judge and probation officer simply praise my client for stepping up when they were not required to, and that hard work will suffice for probation. This means the client avoids restrictions on travel, alcohol and or drug testing, additional fees to be on probation and the possibility of slipping up, even a technical violation which could wipe out a great deal and send the client to jail.
Better to impressive on your lawyer's watch than the court's watch, because I can be disappointed in you, but I can't send you to jail. A judge will not look kindly of probation violations, and your life and wallet will be impacted sitting on probation for up to 730 days!!!
If you're interested in avoiding probation for a DUI case in Michigan, let's talk about it.
Arrested for drunk driving in Michigan, but haven't heard from the court or police in weeks or months
There are two ways someone handles a drunk driving arrest in Michigan.
#1 - Arrested, released and hire a lawyer. This is the path I would always recommend, because it's so important to be proactive from day one and take control of your case. You also need to understand your bond conditions, your court date and prepare to handle your case. Most people do follow this path and are best prepared to go to court and get the best outcome.
#2 - Because there is a blood draw, the person is not given a court date when released and are told to keep an eye on their mail for something from the court. Many people either do this because it's what the jail told them and think it's the only approach or push the issue under the rug and hope it goes away. People may sit around and worry about this everyday or some people even forget about it, and just assume "well I guess I won't be charge" - the majority of these people end up having warrants at the courthouse and are not even aware about it. They may move and not get the mail, or the court/police may not send anything yet there is still a warrant.
Just because a police officer or the jail tell you to "wait to hear from us" doesn't mean you should follow that advice. You're not only risking being arrested on a warrant and starting the case off on the wrong foot by being arrested vs coming in on your own, but you're losing out on such valuable time by NOT being proactive.
If you're reading this after an arrest, I strongly encourage you to call a lawyer; you're not obligated to hire a lawyer and may decide against it, but at least discuss the case and your options. To learn more about my proactive approach, click here
As the holiday season rolls in, many successful professionals in Michigan are attending their year-end holiday parties. Celebrating a successful year with your company and co-workers is a fun night, but things could change quickly if proper plans are not laid out in advance.
The majority of my clients who are charged with drunk driving in Michigan have no prior criminal history, and would never imagine themselves arrested for drunk driving. They have good intentions and the plan is NOT to drink too much then drive, but something happens. I call this the wild card of the evening, and it puts law abiding responsible people on the wrong side of the law. I see it on almost every DUI case that I handle in Michigan.
This could mean a plan to have someone else drive home, but that person can no longer drive or the plan could be to not drink or drink very little, but things change; it's easy to plan to have 1-2 then co-workers/bosses, friends etc intervene in some way and 2 drinks become 6 drinks. Compound this with people not properly understanding what a "drink" looks like and you could have 8 glasses of wine in your system when the plan was 2 glasses.
When 2 drinks become 8 drinks, your original plan goes out the window and you get "brave" and confident in your ability to get home without issue. You may not want to take an expensive Uber, ask for a ride or risk your car being towed. I've even heard from a client "well I had an early dentist appointment". Clients reflect back and acknowledge their choices made zero sense, but at the time must have made enough sense that they made those choices.
If you or someone you love now find yourself charged with a DUI in Michigan, the first thing to do is understand your bond conditions and when and where your next court date will be. Next, it's time to decide how you want to best approach your case. Do you want to sit back and hope things workout or do you want to take control of your case and be proactive from day one?
I take often about the "three windows" in a DUI case. All three windows need to be fully examined, and each offers the opportunity for potential case dismissal or not guilty verdicts at trial.
1. The stop
2. The arrest
3. The chemical tests
I was in an implied consent hearing yesterday and thought further about the basis of the arrest. Many cops rush this process, because well "they know" the person is probably breaking the law. Part of the officer's examination can certainly be subjective, because they are trained and do have experience dealing with drunk drivers and non-drunk drivers. Judges will give their "opinion" some value when it comes to the decision, but they must still "SHOW THEIR WORK"
It's not enough to tell a hearing officer or judge that in their opinion the driver probably committed some sort of DUI offense. The standard of probable cause needs more than a hunch.
Outside of the officer's observations, we have the preliminary breath test, field sobriety tests and the driving of the driver.
If the cop admits that the traffic violation was something like no turn signal, some speeding, something that both drunk drivers and non-drunk drivers do, that's a good start for showing lack of probable cause. What if no PBT was done? Well then we have no "over 0.08" breath test. It then comes down to the field sobriety tests and the officer's observations.
What will make or break this evaluation is if the officer did the proper tests and if they were done correctly, including proper instructions, conditions and fairness in evaluation. If the officer is able to testify to conducting these properly, their "opinion" that the driver was impaired of intoxicated will hold weight. It's rare that an officer screws this up enough not to get over the line, but some officers simply don't know what they are doing, and hopefully there is a video and or/audio to back that up.
This is why I tell clients after the fact that it is best to not say a single world, do not take a PBT (it's a civil infraction) and do not submit to any field sobriety tests. Hand over any identification requested and be cooperative. It will frustrate the heck out of the cop, because you are making his judge very difficult. If a client actually stuck to this script, it's arguable that an officer would NEVER have probable cause to arrest for a DUI without admissions, PBT's, field sobriety and opportunity to observe impairment. This assumes there is no poor driving and we have some speeding or failure to signal type traffic offense.
Many clients reach out to me over the weekend and late at night; they've been released from jail, they don't know where their vehicle was towed, and they have 100's of questions about what's going to happen to them. The biggest thing to do when in this situation is to simply call a timeout, regroup and prioritize your to-do list.
When a client reaches out to me, I ask them to see any paperwork provided by the police department or a court. They may have seen a judge or simply released by the police department. There may or may not be bond conditions in place, and a court date may or may not have been set yet.
The clients who contact me are not familiar with the process, and may not realize that they can't drink alcohol or travel outside of Michigan due to bond conditions. They may have been released with alcohol and/or drug testing setup and not realize it. The worst thing to do is to compound a drunk driving arrest with failure to comply with bond conditions.
So the first thing to do is understand what your obligations may be with the court, and to make the next impression a better impression on the court, prosecutor and the police.
A drunk driving arrest in Michigan is a "first impression" - it is what it is. It's not going to look great to a judge, prosecutor or the police. If your next impression is on the mark, you have put yourself on the path of compliance, and can begin to work toward what I call the "true impression".
Once we understand bond conditions, we need to sort out when the first/next court appearance will be; failure to show up for a court date is a serious issue for someone charged with drunk driving.
Because the client has hired me as their lawyer, I am able to reach out to the prosecutor, police and court and confirm this information for them. I send over an attorney appearance and I am able to inform my client of this important information. We may be able to waive the arraignment and push the case out a bit as we work toward creating that "true impression"
Our timeout strategy has put us in control of the next steps of the case. The arrest and release felt like it was going 100 miles an hour; we're not in a more stable place and ready to get to work on my proactive DUI program.
To learn more about that approach, click here
In Michigan, I run into various "policies" set by various prosecutors around the State of Michigan. Many of these policies focus on a BAC number which makes or breaks the prosecutor's offer to reduce charges. This policy is most common in two circumstances.
Super Drunk Charge - Prosecutor won't reduce to OWI or Impaired
Super Drunk Charge - Prosecutor will offer OWI, but not impaired
OWI Charge - Prosecutor will not offer impaired
So what do you do when you're faced with one of these policies? You can set the case for trial and roll the dice with the outcome or you can get creative.
A note first - going to trial is a very viable option if the facts and circumstances warrant that choice, but many DUI cases in Michigan have "bad facts" and a client may have false hope that simply hitting the challenge button gives them some sort of 50/50 chance. The reality is 90 plus percent of DUI cases are very strong cases against the defendant.
As a former prosecutor, I look at a report, video and evidence and typically say "I would prosecute that guy in 10 minutes with a jury" - I picture the jury all thinking "huh, what's the catch, this person sounds really guilty" - a trial can be expensive and stressful for a client - it can also bring their case more into the light with the public, and there are some judges who could sentence tougher post trial. A judge is not allowed to admit to doing it, but I've heard judges say "well I say through all those bad facts" and they claim hearing it from witnesses in some way makes the case worse than the defendant pleading to the same thing.
Picking and choosing when to go to trial is not as easy as most believe; so when you're faced with a policy, what can we do?
Well, my clients are already a few steps ahead in that game - my clients are proactive from day one, and sometimes have 30-180 plus days worth of positive achievements on my program. I've broken many policies by simply walking a prosecutor through my client's success on the program, but many of these policy breakers required additional leverage. This means there has to be something within the facts of the case that seal the deal combined with the program.
The most common leverage is the BAC is close to the line - so a 0.17 or 0.18 on a High BAC or a 0.08 to 0.10 on the OWI charge. There's times where a prosecutor may say any High BAC doesn't get reduced or anything 0.20 or above; if it's the first kind then you better be right at the 0.17/0.18 combined with the proactive achievements. The second situation is trickier, because the prosecutor is saying "yes I reduce, but I have my limit" - if the client is at 0.20 then that's the policy, and policies are in place to prevent chaos.
What I mean by chaos is - you give attorney A the deal, then word spreads and everyone wants it. You better be able to justify the prosecutor risking chaos. One creative way to approach this situation is by showing the prosecutor that although the Datamaster or blood result may be 0.20, if we use retrograde extrapolation, which means going back in time using a mathematical approach, we can potentially show a driver's BAC when driving. BAC levels are either dropping or rising between operation and test.
If we have a PBT of say 0.16 then a blood result of 0.20, well there's something there that shows blood may be rising - the prosecutor looks at the 0.20 and says no deal. Sure, I can point out the 0.16, but the prosecutor says something like "well it's a PBT it's not reliable" or "only matters what the BAC is when they take the test" - it's a bit like throwing rocks at this point - two lawyers (me and prosecutor) playing toxicologist. Well what if we added an actual toxicologist to the equation?
What about instead of me pointing out the rising blood and likely lower BAC when driving, we had an expert review the reports and evidence and offer that expert opinion in a letter? Experts aren't only for trial, they can help in plea negotiations. Is this a slam dunk solution? No, but it can't hurt the case - having an expert say the BAC was likely lower than driving may be what a prosecutor needs to break their policy and offer a deal.
Facing a DUI as a practicing attorney in Michigan - How to manage a drunk driving charge and keep your law license
Let me begin with an important caveat. I do not represent other attorneys with the State Bar of Michigan and any potential sanctions on their law license; I make a referral to some great attorneys, but most importantly put the client in a great position to handle that part of their case by being proactive in their criminal case.
So how does this work? Let's run over a hypothetical case step by step with some commentary.
1. A practicing attorney in Michigan is arrested for drunk driving
2. That attorney contacts me and will typically lead with their status as an attorney
From here I gather as much information from the client as possible such as Implied Consent issues and "other crimes". An attorney charged with drunk driving is one thing, but if there's also drug possession, resisting arrest, leaving the scene of an accident, reckless driving etc, things are more complicated for the client.
Let's assume it's a straight drunk driving. I will inquire about any prior criminal history, most importantly substance abuse type cases in the past along with if this case was an "accident case". From speaking with attorneys who help clients keep their law license, the State Bar is looking for a pattern of this type of behavior and accidents.
Assuming this is a first offense and a traffic stop type case, we then discuss BAC levels, field sobriety tests, PBT's, reason for stop, basis of arrest etc. We're not going to know the full story based on this conversation, because when it comes to a criminal case and worrying about keeping your law license, the content of the police report is all that really matters. Innocent until proven guilty, but only one side creates an official account of the case, and it carries a ton of weight in negotiations, resolution, leverage and the State Bar of Michigan.
Every client of mine goes on a proactive plan from day one, but this is especially important for attorneys who are charged with a DUI in Michigan. I am already anticipating that client going before the disciplinary board, and trying to keep this a private matter without interruption to their ability to practice law, and avoiding their name in the State Bar Journal. I understand from experience what has helped my many past clients get through this process in the past shape possible.
It's very likely that the steps I have my client perform now will lead to a great result down the road with the State Bar of Michigan; being proactive months ahead of this process is HUGE in demonstrating that you are fit to continue practicing as you took control of your case from day one and did not hesitate to get back on track in life.
It's usually 3-5 months before the State Bar of Michigan assesses my clients fitness to practice, but imagine if they weren't being proactive during this time; such a waste of time to do otherwise. Unfortunately the majority of lawyers charged with a DUI do nothing proactively, and only begin something once sentenced by a judge around the same time your conviction is reported. What kind of message does that send? Wouldn't it be better to have 3 months worth of progress?
Every Michigan attorney client charged with DUI would begin 2x daily alcohol testing on a portable breath machine, seek a substance abuse assessment within 1-2 weeks of the incident. They would begin counseling and engage in AA meetings immediately. I would have them undergo alcohol education and awareness and discuss proactive community service. We may do things like Intensive Outpatient counseling, Impact Weekend and a host of other impressive steps. It's really about "going above and beyond" when charged with a DUI in Michigan as a practicing attorney. There is no such thing as TOO MUCH in my book.
If you're an attorney charged with a DUI in Michigan, it's time to buckle up and do everything to save your ticket in life, and your means to support yourself and your family.
DUI Attorney & Former Prosecutor Jonathan Paul