Prior to entering private practice as a criminal defense lawyer, I spent years as a prosecutor in both New York City and Michigan.  When I graduated from the University of Michigan Law School in 2007, I wanted to get immediate experience in the courtroom.

Most graduates of top-ten law schools go off and make the big bucks at major law firms around the country.  They sit in back offices working on cases assigned to them by a partner, and once all the grunt work is done, it's handed off to the partner to get praise and get paid by the client. 

If you work thousands of hours a year, abandon your family for long enough and produce a  good enough work product for 8-10 years, then you get to play partner and hand off work to young lawyers.  This seemed like a death sentence to me, and I was not interested in being paid to sit in a dark room and be a paper pusher who got zero credit other than a nice paycheck.  Was that really what being a lawyer is all about? 

I grew up in New York City and watched Law & Order on a regular basis.  My idea of being a lawyer was Jack McCoy prosecuting the big cases, and always winning in the end.  There would be ups and down, but hard work, persistence and the truth would prevail.  

I never thought I would be a lifer as a prosecutor, but I recognized the unique hands on, front lines experience offered by the position.  In New York City, there are literally millions of criminal cases charged each year, and well someone has to work on them.  Due to case volume, you get a lot of responsibility and not a ton of oversight or help on day one - it's sink or swim.   

I worked at the Brooklyn DA's Office on Jay Street in Downtown Brooklyn where we had over a thousand prosecutors; we weren't paid like most lawyers at the big firms, but we were paid in patience, experience and opportunity.  

We were handed 100's of files each day, told to go to a courtroom and deal with 20-30 experienced criminal lawyers trying to trick you, and push you in the direction they wanted the case to go.  The judge didn't care that you had no idea what you were doing.  The phone would be ringing all day about my other cases in different courtrooms while I was trying to focus on what the other lawyers and judge were trying to tell me in my courtroom.  It was stressful, I made mistakes, and I was worked hard with little financial reward, but I was getting better each day.  

I spent late nights in the Early Case Assessment Bureau (ECAB), working with detectives on extremely serious and emotional cases that JUST happened.  Literally speaking to a rape victim within hours of the hour she endured.  Going to the hospital to speak to victims who were brutally attacked and injured to get statements.  I was on call to go out to scenes of crimes in the middle of the night, and expected to be the law enforcement leader and prosecutor among police officers, detectives and other emergency responders.   I would then wake up early and be in court on those 100's of files, expected to be prepared for multiple trials and hearings each day.  

I eventually moved to Michigan with my wife, but my work as a prosecutor was not yet done.  I decided to join the Oakland County Prosecutor's Office, which was the New York City version of the Manhattan DA's Office.  The Brooklyn DA's Office was very much like working in Detroit for Wayne County, but Oakland County was like Manhattan - more resources, more prestige and a different working environment.  

I no longer had 100's of cases each day in court, and I was not up late into the night talking to victims of serious crimes, because we had enough resources to spread things out as an office.  While I was no longer buried in files and 15 hour days, I now had one thing I never had in my past job; I had the resources and time to work on my craft.  I could sit down and really learn, and prepare for hearings and trials.  I was able to become a better lawyer by having more time to sharpen my litigation skills.  

I came to this second job with a lot of confidence, because I had survived and endured my time as a Brooklyn prosecutor.  New York City: If You Can Make it Here, You Can Make it Anywhere very much applied to being a prosecutor in Michigan. 

In Michigan, I took many cases to trial, both jury and bench, held high level preliminary examinations on serious felonies, did a ton of motions, hearings and worked on 1000's of unique criminal cases.  I was learning a new set of laws, rules and procedure coming to Michigan, but actually got to study and learn my trade.  

After spending time as a prosecutor in Michigan, I knew it was time to make a move.  I never wanted to be a lifer as a prosecutor, because it was not in my personality to prosecute people all of my life.  People who commit crimes deserve to be punished, but as a prosecutor you never really learn the backstory or the source of the offense.  As a prosecutor you just see a name, a charge and assume "oh that's a criminal, I must prosecute and do my job".

I was also NOT impressed with most criminal attorneys in Michigan - they were simply acting like the opposite of a prosecutor, which seems like it's the role to play, but it's not.  As a prosecutor you have a law to prosecute on and facts to use to accomplish that task - little emotion gets in the way of the job.  Most defense lawyers believe their role is to simply resist and fight those facts as if they are made up or wrong without humanizing the case.  If the criminal lawyer isn't going to humanize the defendant, then who is going to do that? Nobody.  

​Having played both roles, I can comfortably say 99 percent of people who are charged are at least a little bit guilty.  Maybe a prosecutor can't meet their burden and there is not enough evidence to convict on, or there is a technicality to prevent prosecution, but the facts and charges are not made up or completely wrong.  Defense lawyers don't quite understand that it's OK to have a guilty client, and it's ok to try to work with the prosecutor to a compromise for both sides.  Does a criminal lawyer really want to pat a drunk driver on the back and say "hey no harm no foul, you're fine, go back out there and act the same??" I don't - I would rather help that person as a first priority.  This is just common sense lawyering with the big picture in mind.  

Based on my experience as a prosecutor, I decided I wanted to be a different kind of criminal defense lawyer.  I had a few goals and six principles to go by: 

1. I wanted to work with good people, not "criminals" who commit crimes to hurt people, property or are just evil spirited.  I don't work on cases that I am not comfortable with.  I don't just assume all people are innocent, so if I am not comfortable with the allegations, I won't take on the case - Michigan has 1000's of lawyers to help this person. I want clients who I believe in and can help. 

​2. I wanted to actually help my client with whatever brought them to my office; this didn't mean "getting them off" but rather to actually work on the reason why they found themselves charged with a crime.  If we can get the case dismissed or win a trial, then that's great, but it's more important to help the client with what lead to the allegations in the first place.  

3. Wanted motivated clients who were willing to work hard to change the perception of their case from day one.  They might be really guilty, and that was ok.  It did not make them a bad person, or someone I wouldn't trust in my own life.  People make poor choices, it doesn't make them evil people who can't be trusted going forward.  

4.  Wanted to use this motivation and proactive work product of my client to work with the prosecutor and judge to create better results than people who just come to court looking to fight the charges just to fight the charges because they are not happy with the options.  Lawyers don't have time machines or easy buttons.  If you broke the law, you can't change the past, but you control the present and your future.  

5.  Wanted to leverage my client's out of court performance along with finding enough leverage within the evidence of the case to meet my client's goals without the risk of trial.  You need inside and outside leverage to get the best result.  

6.  Wanted to go to trial on the right cases.  Ultimately the client always has the option for trial, but I don't recommend going to trial on a losing case - usually a guilty person with strong evidence against them.  If you're innocent then let's go to trial - if you're guilty and the evidence supports it, let's meet your goals in a different way.  I don't want to set my client up for failure.  

As a criminal defense lawyer, I am very selective in the cases and clients that I take on.  Our firm ends up turning down more cases than we take on.  Each case and client needs a customized approach, and we develop goals for each case.  

My goal for every case is to get to the right result.  I want to know my clients goals and put a plan in place to hit every goal.  We're aware of the prosecutor and judge and their goals for each case, and we work together to come to the right result. 

Some clients go to trial, most work toward resolution, which is hopefully more favorable to the client than it would have been without working with me.  This might mean reduction or dismissal of charges, a better more manageable sentence, but most importantly the tools and mindset to go forward a productive and more responsible person for their family, career and life.  

Here are some unique thoughts on a second offense, and what might be different about the approach below.  

With a second offense comes mandatory jail time and potential loss of driver's license for a full year.  You certainly don't have the benefit of the doubt with a prior DUI offense on your record.  The only benefit of the doubt could be the first DUI is from 20-25 years ago vs someone who has their second DUI in 2-3 years.  

A second could bring sobriety court into play, which could allow my client to avoid jail and potentially keep their ability to drive, but not all courts have sobriety courts, and not all clients will qualify.  

The proactive program is even more intense for a client with a prior DUI offense.  We lose a bit of the approach that we're pinpointing an isolated reason why this happened - we can't sell that because this is the second time it has happened now.  You can try to blame the lack of attention to the issue round one, and now "you're finally getting help" now but your audience is less receptive.  

I typically lean more toward intensive counseling, getting help, admitting you have a problem - even if it's only been the two times you drank too much, you don't get the benefit of the doubt.  

​Below you will see my detailed thoughts on drunk driving cases from both the prosecutor viewpoint and the criminal defense side of the case.  

As a former prosecutor, I had very little patience for a second offender, and most prosecutors believe the same thing, but leverage still matters.  Poke holes in a prosecutor's case and well the prior offense isn't going to make the second case any stronger. If anything a prosecutor may try to come up with a compromise to make sure the defendant is at least on probation and being monitored.  Those holes need to be backed up with currency outside of the courtroom so a prosecutor can justify "dismissing a DUI" when the person has a prior - that's a lot to swallow as a prosecutor and risky in the political world.  

As a former prosecutor in New York City and Michigan, I had very different experiences in these roles.  In New York City, defendants would typically receive quick reductions down to non-misdemeanors, with a very limited if any license suspension and rarely did a first offender receive any probation.  In Michigan, drunk driving cases were handled a lot differently.  

In Michigan, a drunk driving case can really vary depending upon what police department makes the arrest, because it determines what courthouse the case is heard, an who the prosecutor on the case is going to be.  Some prosecutors are quick to reduce Operating While Intoxicated or Super Drunk charges down to Impaired Driving, but rarely anything below this offer.  Judges typically put people on at least 12 months of probation, and some courts do send first offenders to jail.  

Prosecutors typically view DUI cases as serious charges, and pretty straight forward to prosecute.  Prosecutors look for evidence of driving the car then the chemical test result being over the legal limit.  If they have evidence of both of those, they are confident in their case, and typically hold firm in standard offers to the defendant.  

Some prosecutors have "policies" and will not make offers or will play hard ball day one, inviting a trial if you don't like the offer.  The majority of prosecutors don't want to set DUI's for trial and make themselves much busier; they have large caseloads and want to resolve cases.  

Most prosecutors will give some benefit of the doubt to someone with no prior DUI convictions, but will look harshly upon accidents, poor driving, an exceptionally high BAC number, and any funny business in terms of acting poorly toward the police officers.  If the case is a clean traffic stop, a relatively common BAC number, there's likely to be an opening offer that might be appealing to some defendants.  ​

​As a criminal defense attorney I don't want to settle for the default/"what everyone else gets" result.  I want to create more options for my client, and we do that by creating leverage both outside and inside the courtroom.  

We create leverage outside of the courtroom by being proactive and changing the perception of the case from day one.  When the case begins depending on your record, the prosecutor and judge will view you as a dangerous drunk driver who is lucky to not have killed someone. 

As a criminal defense lawyer I anticipate the perception of my audience and look to expand the information pool with positive information about my client's past, present and future.  When I say information, I don't just mean telling the prosecutor my client has a good job, a family and he's a nice guy.  The information comes from real action, which begins with a substance abuse evaluation with a follow-up on recommendations.  

The majority of my DUI clients are not frequent drinkers, they typically don't have more than 2-3 drinks, and have no criminal record.  They have good jobs, pay their taxes, respect the law, and agree that drunk driving is not a good thing, and there should be punishment for the crime.  They find themselves facing a DUI charge unexpectedly due to some variable changing on the day of the offense. 

It usually stems from not planning ahead, because my client has no intention of drinking too much.  The night begins without plans in place, and the environment, surroundings, people involved are different than expected, and my client drinks more than usual, and they are unfamiliar with this situation, and don't put the breaks on.  The drinks keep flowing and those drinks impact positive decisions.  The client's decisions are no longer completely their own and they trick themselves into believing "risking it" is a good trade off to leaving a car in a parking lot, missing an early doctors appointment or their kids little league game.  They make the decision to drive, because the chances are more likely they get home ok without incident. 

They fail to weigh the consequences, even if smaller and less likely - what if I get caught? Worse, what if I kill someone?   

If we can make this situation make sense to a prosecutor and judge, we're going to get a lot further along in our case.  Essentially we can isolate this poor choice and get away from any perception that this is typical behavior, an addiction, something we can't control.  If we can pinpoint how we got there and work on that, a prosecutor and judge will view my client in a different light.  

Overcoming the "dangerous drunk driver" perception starts with identifying the true issue, demonstrating that you're taking it seriously, and ready and willing to work on it.  With the evaluation comes a recommendation, which is usually counseling, alcohol education, Impact Weekend, AA attendance.  We do proactive community service, MADD panels and most importantly daily alcohol testing.  Yes, we voluntarily begin alcohol testing, because we need to show that alcohol is not a friend, and it's not something we rely on, we're dependent on, and rather than say "I learned a lot, I don't even a want to drink", we go ahead and show it.  

This is how we create leverage outside of the courtroom.  I've used this leverage to turn DUI cases into non-DUI cases, probation cases into non-probation cases, and saved people's career, family and possibly their life.  Prosecutor's don't like to go outside of the box, but if they do, it will require currency to justify their decision.  

Being proactive outside of the courtroom is going to lead to better deals with the prosecutor, and more favorable sentences from probation and the judge, but the best outcomes also have leverage inside of the courtroom, which means we need to find something within the facts of the case to push the buttons of the prosecutor a bit - create some sort of holes or uncertainly in the case. 

As a defense lawyer I view DUI cases within three windows:

1. The traffic stop
2. The arrest
3. Chemical tests

Traffic stop requires reasonable suspicion, an arrest require probable cause, and chemical tests must be done correctly to be admissible against my client.  A full review of reports, videos, audio, and other evidence will hopefully provide us something to work with in terms of creating leverage.  This could mean leverage for pretrial motion or at trial. 

Defeating the stop could mean everything after the stop is inadmissible.  Showing the arrest was not based on probable cause could suppress any field sobriety, statements, and chemical tests.  Suppressing the blood or breath test could leave a prosecutor quite thin on evidence for trial. 

The goal is not necessarily to file the motion or set for trial, because that runs the risk of losing control of the outcome or losing a plea offer, but having the leverage to proceed with either option - something more than a blanket "I'll set for motion or trial" - that's a bluff and prosecutors do not bite on those.  You need to show them the leverage in a reasonable way - don't pull out your sword, just talk about the sword a bit.     

Win with consensus,  work toward a compromise that works for everyone.  I've had prosecutors offer disorderly conduct and dismiss drunk driving because it was the right outcome, but I needed both the leverage within the evidence of the case, and my client needed to back it up outside of the courtroom.  ​
​

As a former prosecutor in New York City and Michigan, I had very different experiences in these roles.  In New York City, defendants would typically receive quick reductions down to non-misdemeanors, with a very limited if any license suspension and rarely did a first offender receive any probation.  In Michigan, drunk driving cases were handled a lot differently.  

In Michigan, a drunk driving case can really vary depending upon what police department makes the arrest, because it determines what courthouse the case is heard, an who the prosecutor on the case is going to be.  Some prosecutors are quick to reduce Operating While Intoxicated or Super Drunk charges down to Impaired Driving, but rarely anything below this offer.  Judges typically put people on at least 12 months of probation, and some courts do send first offenders to jail.  

Prosecutors typically view DUI cases as serious charges, and pretty straight forward to prosecute.  Prosecutors look for evidence of driving the car then the chemical test result being over the legal limit.  If they have evidence of both of those, they are confident in their case, and typically hold firm in standard offers to the defendant.  

Some prosecutors have "policies" and will not make offers or will play hard ball day one, inviting a trial if you don't like the offer.  The majority of prosecutors don't want to set DUI's for trial and make themselves much busier; they have large caseloads and want to resolve cases.  

Most prosecutors will give some benefit of the doubt to someone with no prior DUI convictions, but will look harshly upon accidents, poor driving, an exceptionally high BAC number, and any funny business in terms of acting poorly toward the police officers.  If the case is a clean traffic stop, a relatively common BAC number, there's likely to be an opening offer that might be appealing to some defendants.  ​

​As a criminal defense attorney I don't want to settle for the default/"what everyone else gets" result.  I want to create more options for my client, and we do that by creating leverage both outside and inside the courtroom.  

We create leverage outside of the courtroom by being proactive and changing the perception of the case from day one.  When the case begins depending on your record, the prosecutor and judge will view you as a dangerous drunk driver who is lucky to not have killed someone. 

As a criminal defense lawyer I anticipate the perception of my audience and look to expand the information pool with positive information about my client's past, present and future.  When I say information, I don't just mean telling the prosecutor my client has a good job, a family and he's a nice guy.  The information comes from real action, which begins with a substance abuse evaluation with a follow-up on recommendations.  

The majority of my DUI clients are not frequent drinkers, they typically don't have more than 2-3 drinks, and have no criminal record.  They have good jobs, pay their taxes, respect the law, and agree that drunk driving is not a good thing, and there should be punishment for the crime.  They find themselves facing a DUI charge unexpectedly due to some variable changing on the day of the offense. 

It usually stems from not planning ahead, because my client has no intention of drinking too much.  The night begins without plans in place, and the environment, surroundings, people involved are different than expected, and my client drinks more than usual, and they are unfamiliar with this situation, and don't put the breaks on.  The drinks keep flowing and those drinks impact positive decisions.  The client's decisions are no longer completely their own and they trick themselves into believing "risking it" is a good trade off to leaving a car in a parking lot, missing an early doctors appointment or their kids little league game.  They make the decision to drive, because the chances are more likely they get home ok without incident. 

They fail to weigh the consequences, even if smaller and less likely - what if I get caught? Worse, what if I kill someone?   

If we can make this situation make sense to a prosecutor and judge, we're going to get a lot further along in our case.  Essentially we can isolate this poor choice and get away from any perception that this is typical behavior, an addiction, something we can't control.  If we can pinpoint how we got there and work on that, a prosecutor and judge will view my client in a different light.  

Overcoming the "dangerous drunk driver" perception starts with identifying the true issue, demonstrating that you're taking it seriously, and ready and willing to work on it.  With the evaluation comes a recommendation, which is usually counseling, alcohol education, Impact Weekend, AA attendance.  We do proactive community service, MADD panels and most importantly daily alcohol testing.  Yes, we voluntarily begin alcohol testing, because we need to show that alcohol is not a friend, and it's not something we rely on, we're dependent on, and rather than say "I learned a lot, I don't even a want to drink", we go ahead and show it.  

This is how we create leverage outside of the courtroom.  I've used this leverage to turn DUI cases into non-DUI cases, probation cases into non-probation cases, and saved people's career, family and possibly their life.  Prosecutor's don't like to go outside of the box, but if they do, it will require currency to justify their decision.  

Being proactive outside of the courtroom is going to lead to better deals with the prosecutor, and more favorable sentences from probation and the judge, but the best outcomes also have leverage inside of the courtroom, which means we need to find something within the facts of the case to push the buttons of the prosecutor a bit - create some sort of holes or uncertainly in the case. 

As a defense lawyer I view DUI cases within three windows:

1. The traffic stop
2. The arrest
3. Chemical tests

Traffic stop requires reasonable suspicion, an arrest require probable cause, and chemical tests must be done correctly to be admissible against my client.  A full review of reports, videos, audio, and other evidence will hopefully provide us something to work with in terms of creating leverage.  This could mean leverage for pretrial motion or at trial. 

Defeating the stop could mean everything after the stop is inadmissible.  Showing the arrest was not based on probable cause could suppress any field sobriety, statements, and chemical tests.  Suppressing the blood or breath test could leave a prosecutor quite thin on evidence for trial. 

The goal is not necessarily to file the motion or set for trial, because that runs the risk of losing control of the outcome or losing a plea offer, but having the leverage to proceed with either option - something more than a blanket "I'll set for motion or trial" - that's a bluff and prosecutors do not bite on those.  You need to show them the leverage in a reasonable way - don't pull out your sword, just talk about the sword a bit.     

Win with consensus,  work toward a compromise that works for everyone.  I've had prosecutors offer disorderly conduct and dismiss drunk driving because it was the right outcome, but I needed both the leverage within the evidence of the case, and my client needed to back it up outside of the courtroom.  ​

As a former prosecutor I used to think field sobriety tests were a golden ticket to conviction. Along with the chemical tests, I had my police officer administering a number of super reliable tests and the results were typically favorable to prosecution. I would look at the police room and boom, boom, boom, I had the defendant sinking his/her own case. It wasn't until a few skilled defense lawyers began taking apart these tests that I soon realized they were not as reliable as I once thought.

In Michigan a witness, typically a police officer is allowed to testify to Standardized Field Sobriety Tests (SFST) results and how they relate to impairment if the witness is qualified by knowledge, skill, experience, training, or education. The law specifically states that the Horizontal Gaze Nystagmus (HGN) is admissible under this provision by an officer trained in how to perform the test.

In Michigan “Standardized Field Sobriety Test” means one of the standardized tests validated by the National Highway Traffic Safety Administration (NHTSA). A field sobriety test is considered a SFST under this section if it is administered in substantial compliance with the standards prescribed by NHTSA.
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In simple terms if the police officer is qualified and follows the rules then the evidence can be introduced to the trier of fact or at a evidence hearing. The problem for many people charged is their attorney simply reads the police report and doesn't look into if these tests were done correctly. A cop is NOT going to say they did them wrong in the report - it takes watching the video and listening to the instructions to confirm compliance.

Based on my experience as a prosecutor, I know that the prosecutor has not watched the video or firmed up these tests; they just assume they are done correctly. This means if I look further into the issue and spot problems, they WILL NOT be prepared to respond at a hearing or trial, and I have a good shot at making a statement in front of a jury or judge and hopefully discredit these tests.

According to a State of Michigan law enforcement memo, the SFSTs are designed as divided attention or psychophysical tests which involve requiring the subject to concentrate on both mental and physical tasks at the same time.

These tests are designed to mimic the different abilities and tasks involved in operating a motor vehicle. These include information processing, short-term memory, judgment and decision making, balance, steady and sure reactions, clear vision, small muscle control and coordination of limbs.

As a criminal attorney, I am only looking for the BIG THREE: HGN, Walk & Turn and One Leg Stand, because any other test is not standardized and a fiction of the officer's imagination. An officer can just as easily as my client to recite the Detroit Tigers lineup as he can the alphabet - I am going to discredit anything outside of the BIG THREE right away.

According to various studies, the HGN is only 77 percent accurate, the Walk and Turn is 68 percent accurate and the One Leg Stand is only 65 percent accurate.

As a prosecutor, I would quickly glance at the officer's narrative and just assume "LOOKS GOOD" and move on. As a criminal defense lawyer, I dig into the details and test the officer narrative to the video/audio. Even a small difference between report and video could mean putting the officer in a position of trying to make his report/narrative more favorable and really discredit the whole process. We get the benefit of the doubt on the things we can't see and hear if what we can see and hear is not 100 percent accurate, and it's so important to make a big stink about it, because a jury doesn't know any better.

The first test is always the most fishy - the HGN, because there is no video or audio of what the officer is actually observing on my client since it's his eyes - I am looking for proper or improper instructions and if I can see how the officer is actually administering the tests. If he does it by the book, I am hoping that his credibility is put into question on another test, which I can see better such as the one leg stand or walk & turn, so I can argue that it simply taints all the tests.

According to the officer training manual here are the proper instructions: ​

1)Please remove your glasses (if worn).
2)Put your feet together, hands at your side. Keep your head still and follow this stimulus with your eyes only.
3)Keep looking at the stimulus until the test is over.
4)Do not move your head.
5)Do you understand the instructions?

The officer will then position the stimulus 12-15 inches from the suspect’s nose and slightly above eye level. He or she will first check to see if both pupils are equal in size (if they aren’t, this may indicate a head injury). The officer will then make sure the eyes are able to track together (called equal tracking) across the suspect’s entire field of vision.

Here the officer is looking to see if the eyes track the stimulus together or if one eye lags behind the other (this would indicate medical disorder, injury or blindness). After this is done, the officer continues with the test as listed below:

The officer is now looking for the three clues in each eye, so 6 total clues.

1) The Lack of Smooth Pursuit –the eyes can be observed to jerk or bounce as they follow a smoothly moving stimulus, such as a finger or penlight. The eyes of an unimpaired person will follow smoothly, i.e., a windshield wiper gliding across a wet windshield; whereas the eyes of an impaired person will follow in a jerking manner, i.e., a windshield wiper moving across a dry windshield.

​a.Instruct the subject to hold their head still and to follow the stimulus with their eyes only. b.Move the stimulus smoothly, all the way to the subject’s left, then all the way to the right, then back again all the way to the left, then once again all the way back to the right.
c.While the eye is moving, examine it for evidence of a lack of smooth pursuit.
​d.Each eye counts as one clue for scoring purposes.

2) Distinct and Sustained Nystagmus at Maximum Deviation –distinct and sustained nystagmus is observed when the eye is held at maximum deviation for a minimum of four seconds. People’s eyes exhibit a slight jerking at maximum deviation even when unimpaired, but this jerking will not last more than a few seconds. In alcohol-impaired individuals, the jerking is larger, more pronounced, sustained for more than four seconds, and easily observable. Nystagmus at maximum deviation is observed when the eye is moved to the point where there is no longer any white left in the side of the eye. The nystagmus can be observed to act in a back and forth “popping” motion.

​a.Position the stimulus as before.

b.Move the stimulus all the way to the subject’s left side and hold it there so that the subject’s eye is turned as far to the side as possible.

c.Hold the eye at that position for a minimum of 4 seconds to check carefully for any jerking that may be present.

d.Then move the stimulus all the way to the subject’s right side and hold it there for a minimum of 4 seconds checking again for any jerking that may be present.

e.Repeat both steps b and d (check each eye twice).

f.A definite, strong jerking must be seen; a slightly or barely visible tremor is not sufficient enough to count as a clue.

g.Each eye counts as one clue for scoring purposes.

3) Onset of Nystagmus Prior to 45 Degrees –the point at which the officer first observes nystagmus or jerkingin the eye. If the jerking begins prior to 45 degrees (typically when the stimulus is aligned with the subject’s shoulder),recent studies have shown that the jerking corresponds with a 0.08-plus BAC. The higher the degree of impairment, the sooner the nystagmus will be observable.

 a.Position the stimulus as before.

b.Slowly move the stimulus to the subject’s left side, carefully watching the eye for the first sign of jerking.

c.When you think that you see the eye jerk, stop moving the stimulus and hold it still.

d.Make sure to verify that the eye is in fact jerking.

e.Once you have established that you have located the point of onset, estimate the angle.

f.Repeat this procedure on the subject’s right eye.
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g.Repeat both steps b and f (check each eye twice).

h.Each eye counts as one clue for scoring purposes.

Next up is the Walk and Turn - officer is looking for 8 clues. Here are the instructions, which I am looking for compliance or non-compliance.

1)Put your left foot on the line, then your right foot on the line ahead of your left. Keep your arms at your side. (Demonstrate)

2)Do not start until I tell you to do so.

3)Do you understand? (Officer must receive an affirmative response)

4)When I tell you to begin, take heel-to-toe steps on the line. (Demonstrate) To turn around, keep one foot on the line and return nine steps.

5)When you turn on the ninth step, keep your front foot on the line and turn taking several small steps with the other foot. (Demonstrate) Take heel-to-toe steps back down the line.

6)Keep your arms at your side at all times, watch your feet, and count each step out loud. Once walking begins, do not stop until you’ve completed the test.

7)Do you understand the instructions?

8)You may begin.

9)If suspect doesn’t understand some part of the instructions, officer should repeat only that part which suspect does not understand.

Here are the 8 clues the officer is looking for during the test.

​1)Can’t balance during instructions

2)Starts too soon Walking Stage clues:

3)Stops while walking

4)Doesn’t touch heel-to-toe

5)Steps off line

6)Uses arms for balance

7)Loses balance on turn or turns incorrectly

8)Takes the wrong number of steps

Officer will be quick to point out which clues he observed, but it's important to point out what he didn't observe. Let's say the officer lists 3-4 of them, well that means you didn't see the other 4-5, which means something.

Finally, we have the one-leg-stand - here are the proper instructions:

1)Stand with your feet together and your arms at your side. (Demonstrate)

2)Maintain position until told otherwise.

3)When I tell you to, I want you to raise one leg (either leg) approximately six inches off the ground, foot pointed out, both legs straight, and look at the elevated foot. Count out loud in the following manner: 1001, 1002, 1003, and so on, until told to stop.

4)Do you understand the instructions? 5)You may begin the test.

The timing is very critical during this test. The original research has shown that many impaired subjects are able to stand on one leg for up to 25 seconds but that few can do so for 30 seconds or more.

The One-Leg-Stand is divided into two phases:
1) Instruction Stage and 2) Balance and Counting Stage.

During the Instruction Stage, the subject must stand with their feet together, keep their arms at their sides, and listen to the instructions.
During the Balance and Counting Stage, the subject must perform and complete the exercise as instructed.

There are 4 clues that an officer is looking for during the OLS exercise.

They are as follows:

1)Sways while balancing
2)Uses arms for balance
3)Hops
4)Puts foot down

Same as the walk and turn, if the officer points out clues he observed, it is important to point out what he didn't see.

These field sobriety tests are so ripe for attack by a defense attorney, but it takes some extra work. Field sobriety test issues can be used to challenge an arrest or can be used to help argue a close call BAC case. A chemical test result can be presumed to be what the driver would have registered while driving, but that assumption is not required. If I have a 0.09 BAC an hour later, but the field sobriety tests are actually pretty good, I can argue the deviation, plus timing, plus rising blood that my client wasn't above the limit while driving. I can also use the field sobriety tests to challenge an arrest, especially if there is no PBT result over the limit.
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The possibilities are endless, you just need to be prepared to look deeper into the issue.

As a former prosecutor I worked on 1000's of drunk driving cases, and one of the main concerns of the person charges was their ability to drive.  A person doesn't realize how important the ability to drive actually is until they are no longer able to do so.  It means you can't drive to work, school, drive your kids or family around, go grocery shopping, leave the house to eat or entertainment.  Losing your license can be a huge burden on a spouse or friends and family, and I have seen relationships ruined because someone can't drive their car.  

One role that a prosecutor has in Michigan is on a circuit court hardship appeal.  If someone violates the implied consent law for refusing a chemical test and that ruling is upheld on appeal, a petitioner (the defendant) has the option to file a hardship appeal with the circuit court on the basis of hardship if this is there first implied consent issue.  Some counties will have a representative from the Attorney General's Office as a representative for the Michigan Secretary of State, while others will actually have the county prosecutor act as the representative.  

The court is ultimately looking for a real hardship tied into your ability to work, go to school, perform obligations of your probation and other listed issues.  They also want to be sure that public transportation or reasonable alternative accommodations are not available to the petitioner.  If you lived down the block from where you work, you could not claim a legitimate hardship to get to and from work as a basis of receiving the license.  

Many people walk into court and simply say "here is where I work, and here is where I live, I need to drive".  That is lazy and not the most effective way to convince both a judge and prosecutor to OVERTURN a license suspension.  Think about what that means - you violated the law (implied consent law), your license was suspended because of it, and now you're asking for that decision to be overturned, and all you're going to do is show where you work and where you live?  

As a former prosecutor I witnessed too many of these situations go wrong, because people did not over-prepare and take the process as seriously as they should from day one.  As a proactive criminal defense attorney, we may be shifting gears from our criminal case to the circuit court, but we can use all of our proactive accomplishments for these stage as well.

The most important parts will be the substance abuse evaluation and any subsequent following of that recommendation along with the daily alcohol testing.   Neither is required, but the substance abuse evaluation is expected, and daily alcohol testing is usually the cherry on top of receiving the hardship license.  

I can't tell you how many times I've been out in the hallway with the prosecutor/AG representative with another attorney, and all they have is "well it's his first implied consent, and he works 20 miles from where he lives" - I sometimes wish I was the prosecutor again so I could tell that defense attorney - "well he shouldn't have refused the chemical test, I'm not changing the suspension for you" - that's just lazy lawyering - the client could have done the same thing in court.  

I have my substance abuse evaluation ready, AA meeting logs, alcohol insight class completion certificate, counseling letters and printout of our daily alcohol testing.  We're showing the prosecutor that from day one we were open about learning from the situation, followed the recommendation of the health care professional, and you should grant this hardship, because my client HAS NOT BEEN DRINKING and here is proof of that.  Not all petitioners are being alcohol tested or even on probation with a court so there's concerns about handing someone a license who is actively drinking - what better than to show proof that my client is not drinking? 

I always believe in building consensus with a prosecutor, because I learned if you want to go toe to toe with a prosecutor, they will prevail more than they are defeated, because a judge is naturally more familiar with that person and it's the more conservative thing to do.  Handing my client the ability to drive soon after a DUI incident is risky, and I acknowledge that - that is why my clients work their butts off to show they should be granted the opportunity to earn back the trust of the prosecutor, judge and community.  

If I can get the prosecutor to sign a stipulated order for a hardship license in the hallway and we can walk into the courtroom and BOTH tell the judge we want petitioner to receive a hardship license, what's the judge going to do? Say no? Probably not.  Some judges will still have concerns, especially newer judges or judges who are not that familiar with these type of proceedings, but I use the same proactive tools with the judge to get my client over the hump, and get them back on the road. 

The most common sentence for a defendant in Michigan is a term of probation.  For a misdemeanor, a defendant can receive up to 24 months, and for a felony it can be 60 months.  There is reporting probation and non-reporting, and there are standard conditions of probation such as no alcohol, drugs, no new offenses, keep the probation officer updated on address changes, seek permission to leave the state among other conditions etc.  

All probation staffs are different; testing, requirements, meetings will vary by courthouse.  Some probation officers will be more flexible with technical violations and allow the person to cure the issue, and not immediately issue a violation to the judge for a Show Cause hearing.  Let's assume for the purposes of this writing that the defendant has violated probation, and the probation officer has submitted a violation; the court has set the matter for a Show Cause hearing or an immediate violation of probation hearing.

As a former prosecutor, I was not updated on these violations.  If the violations popped up on the docket, I would be dealing with limited information.  As a prosecutor, the safest bet is always to argue against the defendant and his/her lawyer and try to uphold some false sense of justice that breaking a rule means someone should be punished.  This certainly applies if its a misdemeanor violation and you're dealing with a young prosecutor.  When a prosecutor doesn't know what to say, they surely aren't going to support the defendant's position or take on the case, but rather argue against it as a true opponent.  I did the same when I was caught off guard by a judge who wanted to know what my position.  

As a criminal defense attorney who helps clients with violations of probation, I took my past experience and make sure that I speak to the prosecutor beforehand and give them a heads up about the violation.  If they were taken by surprise, I fully expect them to argue against me even if they don't really believe it or care.  

If I represent a client in a probation violation, it's a two step process: 

1. We come to court with something new. I don't let my client simply show on a VOP (violation of probation) and beg a judge to go easy on them; that's not doing my job, but that's what most other attorneys do. If it's an alcohol violation or a drug violation, well I am already getting my client on more frequent testing; if it's alcohol we are probably on a portable daily device already. Up the AA, jump into counseling etc.

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I punch my client right in the gut and "punish" them before the judge has a chance to do it. A client can handle my punch, but may not be able to handle going to jail, losing out on a great deal worked out on their case.  You can lose HYTA, 7411, 771.1, MIP first offender, 769.4A type programs for violating your probation.  

When we walk into court we can take a lot of wind out of the judge's sails by saying we're already taking steps to address the violation. Sure the judge may still put on a show, but what are they going to say? You shouldn't have stepped up in a big way to address it yourself?
We can usually pause, reflect and buy some time.  If we can get a judge to back off taking action, that's a big win.  If my client still has months to go on probation, why not accept what we've done already and see how the client does on the "new" plan - you always need a shiny new toy when you go see the jduge.  

It really depends on the original charge and the violation, but there's a major opportunity to turn a losing hand into a survival situation where you're back on your feet.

2. The second part of the plan is to talk to the prosecutor before the case is called and provide them information about the violation and the steps above. I was a very laid back and amenable prosecutor, but if I was caught off guard I was going to take the easier/less risky route of just piling on the defendant and appearing to be disappointed about the violation and "seeking further justice" and "punishment" because most prosecutors just assume all defendants are "criminals" and can't be trusted.

If you explain to the prosecutor what's going on, show them the steps you've taken to address the violation, it's very possible to turn them into a neutral party rather than an opponent. It's even possible to have the prosecutor back your steps and tell the judge the same. If both the defendant and prosecutor both want the judge to put their sword down and give more, delay a decision, back off, the judge is more likely to buy into the plan. It's so important to try to build consensus with the prosecutor. Great to say "your honor, the prosecutor and myself had a very positive conversation on this matter, and it sounds like they are open to X or in agreement with X.