Sarah reaches out to me over the weekend about a recent drunk driving arrest. It is quite common for a client to be arrested on a Thursday, Friday or Saturday night and spend a night in jail before being released. We apply the three step “A-R-T” method of review, which covers arrest, release, and tracking.
For DUI’s in Michigan, most defendants are released either on a personal bond or a small cash bond; the exception would if the client has an extensive criminal record, especially prior drunk driving convictions. Along with likely release, the Defendant is given bond conditions with the most common rule being no drugs or alcohol with mandatory testing.
When a potential drunk driving client reaches out, it is important to get all the paperwork in their possession; there is a lot of valuable information to be gained. We want to be sure that there is NOT an implied consent issue, which we will get more into, and the client must understand all of their bond conditions, their ability to drive a vehicle, and when court may be. I also inquire about the status of their driver’s license, past criminal history, and if they hold a CDL or a CPL.
We also want to dive into their professional life, and if they hold any professional licenses or any licensing by the State. While most clients I work with are residents of Michigan, a decent portion of DUI clients are from out of state, or at a minimum have an out of state license. It is important for a client to understand how an out of state or in-state license differ for their case, and their ability to drive.
Along with gathering this background information, it is important for a client to layout their recollection of the what happened with the police; the information is most fresh immediately after the arrest. The only issue with a DUI case is the alcohol and potential lack of memory or a false sense of what happened. Some clients remember it all, some remember parts, some nothing, and some remember, either intentionally or unintentionally the wrong thing.
After gathering background on Sarah, it turns out she is a schoolteacher in Michigan, has no prior criminal history, does not have a CDL or CPL, but tells me that she refused the breath test. This last piece of information is extremely important for an attorney to know. Sarah also sends me copies of all her paperwork, which includes a ticket, a temporary license, refusal paperwork and an inventory of her property. She also has paperwork with a TBD for her court date.
I ask Sarah to walk me through her version of the arrest as I now have access to her paperwork and can begin to piece together the evening. This will cover the ARREST portion of the A-R-T method.
Sarah tells me that she was speeding on a residential road with a speed limit of 35 MPH; she estimates she was going around 55 and was lost. She had been out with work friends celebrating the end of the school year and was trying to find her way back to the freeway; while trying to find her way, she was pulled over by the police.
Within the A-R-T approach, we also want to use three windows of inquiry. The first thing we examine in an arrest is the reason for being pulled over, stopped by the police, or how the heck did you end up interacting with a police officer, and does it meet the legal standard in Michigan.
Here we have a traffic stop by a police officer; some cases involve accidents where a police officer arrives after the “driving”, a civilian may call 911, or a driver may be parked somewhere with the car not in motion. A traffic stop like Sarah is the most common. For a police officer in Michigan to make a traffic stop, the officer must have reasonable suspicion that the driver of the vehicle has committed a violation of the traffic code.
Even if in the end the driver did not, the standard is a reasonable suspicion, not probable or beyond a reasonable doubt. To challenge a traffic stop, it is an uphill battle which is helped if video is available that contradicts the officer’s reason. Here we have speeding, and if the officer reasonable believed Sarah was speeding, the traffic stop is a good stop, and would unlikely be cause for inquiry.
The good news for Sarah is speeding alone is NOT a basis for impaired or intoxicated driving; sober people speed all the time, but it is a reason to be pulled over. Once on the side of the road, the officer will not interact with Sarah. Under the law, Sarah is not required to speak or perform any tests for the officer; she must comply with providing her license, registration and insurance; her name is listed on this information, and she has the option of keeping her mouth closed and handing over this information.
That never happens, and clients are very chatty with the officer, because that officer is trained to elicit information and make observations to assist in determining if an arrest should be made. This is now our second window of inquiry; once the stop is examined, we must now determine if the officer has probable cause to arrest the driver for a crime committed. Speeding is not a crime, so an arrest cannot be made based on that observation.
The officer will now make observations, elicit statements, and push for field sobriety tests to support the need for probable cause. It means how it sounds, is it probable that Sarah in this case committed the crime of drunk driving, which requires operation of a motor vehicle, and either impairment or intoxication. It is probable Sarah was driving as he pulled her over, there was only one person in the car, and Sarah admits to leaving a work party and getting lost.
The probability of driving comes into question if an officer first observes the vehicle parked, on the side of the road etc. The person may be inside or outside the vehicle, and a police officer and prosecutor need to lean more heavily on circumstantial evidence than in Sarah’s case.
So, let us move onto an examination of the impairment or intoxication of Sarah. Speeding alone is not enough to arrest someone for drunk driving, but as Sarah continues to speak and exits the vehicle, the officer builds his case. It should be noted that the officer does not need to offer Miranda warning at this point as it is still an ongoing roadside investigation; as long as evidence of a possible crime continues to present itself, the officer can carry-on.
Only when Sarah is in police custody would statements, she makes be protected by the law. In many cases drunk driving cases, the statements of the Defendant are not the main evidence; the main evidence is usually seeing the person driving and the chemical tests to follow. The one type of case where it may be more relevant is when a Defendant eventually admits to driving if there is not an independent eyewitness to the driving.
While still inside the car, Sarah provides her information to the officer, and admits to leaving a restaurant with friends; she admits to having 2 mixed drinks, but she feels fine. She admits she was lost and should not have been speeding, but she wanted to get home.
At this point an officer can ask Sarah to exit the vehicle. The officer has evidence she was driving and had consumed alcohol prior to driving. The officer will observe Sarah exit the vehicle and note any trouble exiting, leaning on the vehicle. Officer is observing her speech and her appearance; common remarks are slurred speech, watery and red eyes; you see those in most reports by default.
Once Sarah is out of the vehicle, the officer had her do three field sobriety tests; he performed the horizontal gaze nystagmus test, the walk-and-turn and the one-leg stand; those are the three recognized standardized tests; any tests outside of those are not standardized and should not be a basis of determining the arrest.
Sarah believes she did OK on the tests but had sandals on and was nervous; I explain to her that its rare for anyone to do well on those tests and to not worry about it too much. We will be able to get the officer’s report and review any associated audio and video from the tests. While the field sobriety tests can be hit or miss, they are typically used as the basis of the arrest, and most judges would uphold the arrest if the officer followed protocol on the tests.
Officers vary in how well they administrator the tests, and I have found the horizontal gaze nystagmus to be the most fruitful to challenge as officer’s rush the test and do it wrong. The audio and video allow us to see and hear what happened; the video can be helpful for the other two, but sometimes they are performed off camera or it is hard to see the feet of my client.
The most important part of the client being outside of the vehicle is whether they performed the Preliminary Breath Test or as it is referred to as the PBT. Clients get confused about the different tests and if they need to take them. Some officers push the PBT on the client and make them think they MUST take the test. Technically by law you do need to take a PBT if an officer believes you were driving and drinking alcohol, but failure to do so is merely a civil infraction, punishable by a fine and 0 points. For those under 21, there are 2 points attached.
Either way, a PBT result for Sarah could make or break the officer’s ability to arrest her. While the PBT is not admissible at trial, it can be used as a basis of arrest to examine the probable cause. The PBT test is not deemed reliable enough to be used to determine guilty or innocence, but prosecutors use it as the main tool to uphold an officer’s decision to arrest. In Sarah’s case, she agreed to take the PBT and the result was 0.14 which is over the legal limit.
The one benefit of the PBT is if you believe you will pass, an officer may send you on your way if under the limit; he/she can still arrest you for being under the limit based on the totality of the evidence, but that case would certainly be open to scrutiny. I believe the upside is low if you are not sure if you’ll pass; by being over the limit on the PBT, you’re going to be arrested, and the cop/prosecutor have very strong evidence of probable cause. Based on what Sarah tells me, it sounds like the basis of arrest was there at the time.
Finally, we move onto the post-arrest and additional chemical tests. Sarah mentioned that she refused the test; when arrested for a DUI in Michigan, there is something called an implied consent, which means by law you must submit to breath or blood; failure to do so could result in 6 points and loss of license for a year. The officer must follow protocol in this situation and make Sarah aware of these consequences and give her an opportunity to agree or refuse.
Sarah tells me that she remembers the officer reading those rights, but she was confused and was not sure; she felt it best not to take the test. Some officers are better than others in helping clients understand that it is usually in their best interest to take the test, because the officer is going to get results one way or another. By refusing it adds an automatic license suspension to your case. As you will find a ton of information on my website and videos, an implied consent is not the end of the world; there are options, but it certainly complicates the case for Sarah.
Because the officer had to get a warrant for blood, we do not know the result of the BAC and cannot determine what level of charge we will have (Impaired, Intoxicated or High BAC). It is also why her court date is TBD because a date is unlikely to be set before the blood result is back. This could take 10 days or 4 months, it depends on the capacity of the testing lab, how quickly the officer follows up etc.
You can find many articles on my website about challenging breath and blood, but for purposes of this story, we are now going to focus on the Release and Tracking portion of the A-R-T.
As mentioned above Sarah was released on bond by the court. Without prior criminal history, she had to post $300 and promise to come to court when scheduled. She received alcohol testing as a condition of her bond which she must call every morning to determine if its her random day. Sarah must understand the conditions of her release, so she complies from day one. The release portion of a case becomes more complicated when a client cannot post bond, or the judge holds the client to put a tether on their alcohol or some sort of monitoring. Sarah’s release was straight forward, and she appears to understand her obligations.
An especially important part of Sarah’s case is now the tracking portion; I explain to Sarah that she may not have court for a few weeks, maybe even a month or two. She can sit back and check her mailbox every day; she is likely to lose sleep, be anxious and miserable and she waits for the bomb in her box to show up. This is not a healthy approach to a drunk driving case. Not only is she out of the loop on information, she would waste valuable time doing nothing for her case.
I explain to Sarah that if we work together, we will get things filed with the court, police, and prosecutor; we want to preserve and request all evidence. We do not want video and audio to be deleted or lost, and we want the police and prosecutor to know someone is working with Sarah and keeping her organized and informed. We want to track the status of the blood result and be on top of any warrants or case updates. It is our goal that no warrant for arrest goes into play, and we can simply ask the court to cancel any warrant, and/or waive any arraignment date.
It is our goal to know what is going on, and not to be afraid of the daily trip to the mailbox. It is possible that Sarah misses something, a letter does not arrive, and she sits in limbo as the court begins looking for her; mail and notices get lost all the time. It is better to have a professional tracking the case daily.
Along with information, we want to maximize our time. With a drunk driving case, we will need to overcome the perception that the client is a dangerous drunk driver. It is likely not the first time the person was driving while drunk, but simply the first time they were caught. If a potential client has prior DUI cases, then it is really an uphill battle for the client to overcome that perception.
Our words mean truly little in court, our actions speak louder than anything we can say. I explain to Sarah that if we work together, she would be expected to be proactive from day one. This means likely obtaining a portable alcohol testing device; it would be our goal to test 2x daily and go above and beyond the testing put in place by the court. We would want to change her testing as well, as the portable device will allow a much more convenient method and more dependable and comprehensive.
If we want to change the perception of Sarah, testing 14 times a week, 13 more times than ordered is a good start. We also want to be screened and assessed from a professional in substance abuse; get a basis of where we stand in the present and where we can go moving forward; we usually begin counseling and alcohol education and insight. If a client has prior DUI’s, we usually push for intensive treatment, and begin to put in place jail alternatives.
My DUI proactive program is really tailored specifically for each client, with the average client adopting 5 to 6 steps; this will vary by the court, judge, type of charge, prior history and what comes back on the substance abuse evaluation.
Sarah agrees that she wants to take control of her case. She feels terrible about her choice that night; she knows it was NOT a mistake, but a choice. She is motivated by the fact that she could make a positive impact on her case daily with my proactive plan. The alternative sounds unproductive and frankly makes her anxious to think she would be waiting around for the case to smack her on the head. She would lose valuable time and would feel very unprepared.
Sarah did not know that this type of approach was possible, but it makes so much sense to be on top of things, and if you want someone to believe in you, you need to earn that from the prosecutor and judge.
I explain to Sarah that if she follows my program and works hard, that she has a major opportunity to change the perception of her case with the prosecutor and judge, and work toward an exceptional result.
As a side note, the Implied Consent refusal must be addressed immediately by my office. Failure to appeal this within 14 days would suspend her license for a year subject to the possibility of applying for a hardship license, which I cover in other writings. Our proactive approach helps tremendously in this issue as well; it may take us into the Circuit Court before a judge who we must request to overturn a Secretary of State license suspension. The weight of that decision should not be taken lightly by a judge, and we must provide the justification for that decision.
During these difficult times of uncertainly, clients wonder what will happen with their criminal cases. We have clients who were charged months ago with their court dates delayed, and new clients recently arrested during the Covid-19 crisis in Michigan. Courthouses are mostly closed to the public with very limited staffing, and cases have sat frozen for weeks and months.
In recent days, courts and prosecutors have decided that it's time to begin clearing out some backlog and figure out a way to re-open the court process for cases. Courts are still not ready to welcome a large general public into the building, so many courts are relying on technology such as video conferencing. This causes a challenge because many cases are worked out between lawyers sitting in a conference room, swapping ideas, sharing information and figuring things out prior to seeing the judge. With Zoom, we're all just thrown into a bin of lawyers, clients, staff and judge; we lose some of that personal touch that benefited clients in the past.
So what do we do? The answer is, I take the same philosophy of my proactive criminal defense program, and adopt a similar mentality when it comes to the prosecutor and judge. Because my clients have been proactive for weeks and months, we have an outstanding foundation to begin the conversation remotely.
Over the past few days and weeks, I've proactively reached out to prosecutors on my client's cases and checking in with them; I have shared my clients impressive progress over this downtime, and opened up the doors to resolution. By having productive conversations with the prosecutor days and weeks before court, these same conversations can be had, sometimes even to a greater extent. Prosecutors are sitting at home like the rest of us, and trying to sort out the huge stack of cases.
With this downtime, prosecutors have had more time to review my client's progress and helped us resolve some complex cases and situations with common sense outcomes that meet my clients goals. I am able to go back and forth with the prosecutor and my client and hash things out ahead of time. We then reach out to the court, and let them know that all parties (prosecutor, client and myself) are all satisfied with the outcome, and we want to finalize it with the judge in a video conference setting. The court views this as very helpful; they have a greater stack of files, heck a building filled up of pending cases, and by helping them close out some of these files, they are very receptive to getting the job done. We control the narrative and make things straight forward and easy for others to follow.
By not being in the courtroom, we lose some personal touch with the court staff, and the opportunity to hand papers, documents and items for review to the judge in court, but I make sure the judge has things in advance if I need to reference something over video chat. It's good to reach out to the judge's clerk ahead of time and get things organized and pieced together. When things can be hashed out in advance, the video conference becomes a mere formality which my client is very prepared to complete.
Most would consider the present situation to be a negative for criminal cases, I've done the exact opposite; we turned a negative into a positive for our clients.
Courtney reaches out to be about a drunk driving case, indicating that she failed to do some testing, and must go see the judge in two weeks. I reach out to Courtney for some clarification on her legal issue, as what is she is explaining could be two different things: a bond or a probation violation.
A bond violation occurs prior to sentencing, while a probation violation happens when you have already been sentenced, and currently on probation; for Courtney, it turns out to be a probation violation.
I ask Courtney for a series of information, including her original sentencing terms of her case, the court, the judge, her probation officer’s name, and any paperwork or order received from the court indicating the allegations of her violation.
It turns out that Courtney received the default/standard drunk driving sentencing, because she did take any proactive steps with her attorney. I explain to Courtney that her original sentence appears to be pretty standard, but I provide her a little background on what she would have done if we worked together initially, and how we could have shortened her probation, and many of the terms which are now giving her issues while on probation.
Courtney is upset that things detoured and explains that she simply did not really understand how her testing worked, and her obligations to the court. She wishes she had been proactive and more on top of things earlier in the case but appears open to making some changes.
It turns out that Courtney was placed on random testing for both drugs and alcohol; she has had no issues with drug testing for the first four months of probation but has various alcohol test violations. Some tests she failed to appear for, a diluted sample and one positive test.
When placed on probation for something as serious as drunk driving, the judge is giving you a second chance in not sending you to jail. A chance to go on probation, comply with sentencing, and work on a series of steps in hope that you do not put yourself and others in danger again.
I typically have clients accomplish many of these steps during their case with the goal to avoid them being part of the sentence, because it opens pitfalls and opportunities to violate even with the best intentions.
I explain to Courtney how the judge and prosecutor now view her case.
She was given a chance to comply and succeed, but now she’s testing positive for alcohol, potentially trying to “game the system” with a diluted sample, and showing she is irresponsible and not a dependable trustworthy person who can show up and test.
As a former prosecutor and defense attorney, I’ve heard it too many times from the judge “there is one place where I know you can’t drink, and that’s jail”; Courtney is scared by this, but understands that her actions have consequences.
Courtney now has a decision to make; does she want to show up in the court, apologize? Deny? Cry? Not sure? The options are typically not great for someone like Courtney, because she knows that she messed up, and now she wants another chance?
By going in with no plan, you give a judge no choice but to “send a message” and lean toward punishment such as jail, extension of probation and other sanctions. Unfortunately, this is what most people do when they violate probation.
They already have not done anything to impress the judge and prosecutor for their actual case; it was simply a continuation of the incident itself. Now they screwed up again. You cannot blame a judge for throwing Courtney in jail, and the entire hearing becoming an extremely uncomfortable and unproductive day for her.
But what if there was a different approach? We cannot go back in time and be proactive for the initial drunk driving case, but we can take the current situation, and apply many of the same principles.
Courtney is alleged to have done three different things. Drinking alcohol, not showing up for testing and possibly trying to game the system with a diluted sample. I can already hear and see the judge berating her over each issue.
Now that we are working together, and she is onboard with being proactive, we will use the two weeks prior to court in order to better position her case.
The first thing we do is begin using a portable alcohol testing unit. This will not replace her scheduled testing for now, but the goal will be to test above and beyond what is ordered, test perfectly, and ask the court to adopt the new comprehensive testing as her new means to alcohol test.
If one of Courtney’s issues was missing tests, being late, and not being responsible, well now she has a testing unit with her at her home, and she has no excuses. It will also make her text 2x daily (14 total tests) vs 2 tests per week.
A judge will be impressed that she stepped up to the plate and solved one of the issues on her own. A judge can also adopt our testing as a sanction; testing 14 times is more than 2, so we can call that a penalty, right? By suggesting the penalty, and self-imposing we are now taking the pressure off the judge to act.
We do not stop here, because she did test positive for alcohol while on probation for drunk driving; that is a serious violation of the judge’s trust and violation of a court order. Most judges will impose jail for this violation.
We need to create “jail alternatives” so a judge is not inclined to send Courtney to jail. We do this by self-imposing additional community service hours, and we sign up for a special alcohol weekend program, which 100’s of my clients has attended with great success. I send the referrals to Courtney, and she gets both in place.
With only two weeks before court, we may not be able to finish these additional sanctions, but by starting them or signing up, we can let the judge know what we’ve put in place, and ask for those to be the “punishment”.
Because Courtney has followed my plan, we are now in a particularly good position to take the sting off her violation. Depending on the court, we may send these updates to her probation officer, or wait until she meets with the probation officer the morning of court.
Ultimately the probation officer will recommend something to the judge; we want to influence this recommendation and get the probation officer in our corner. We will have the opportunity to review this recommendation at the courthouse and prepare to address the court.
We will either be asking the judge to follow the recommendation if the probation officer adopts our sanctions or arguing against the recommendation if the probation officer is still seeking jail. Based on my years of experience, if a client steps up like Courtney did, we stand a very good chance of walking out of the courtroom with a deep breath, and a lesson learned that self-reflection and action are the best means for re-taking control of your case.
Governor Gretchen Whitmer appointed Anna M. Frushour to the 14A District Court of Washtenaw County on Dec. 17, 2019. Frushour’s appointment fills the 14A-3 open seat located at the court’s Chelsea location.
According to the release, “Anna Frushour is a partner with Reiser & Frushour, PLLC and a private practice attorney with Frushour Law, PLLC. She primarily serves as a criminal defense attorney and has served as assigned defense counsel for the Mental Health Court, Veteran’s Treatment Court, Sobriety Court, and Street Outreach Courts in Washtenaw County. Prior to her current practice, she served as a contract attorney with the Vincent Law Firm in Ypsilanti.”
“Ms. Frushour is a member of the Attorney Discipline Board appointed by the Michigan Supreme Court. She is a former board member of the Washtenaw County Bar Association and a past president of the Washtenaw County Women Lawyers Association. She earned her Juris Doctor degree from Wayne State University and her bachelor’s degree from the University of Michigan. Ms. Frushour lives in Pittsfield Township with her husband and their two children.”
“A district court is the community court. It should reflect the values of our community,” Frushour said in the statement. “My goal will be for every person to walk out from their court experience feeling like they were heard, respected, and treated with dignity.”
The seat opened up when Judge Richard Conlin Jr. announced his resignation last September which became effective Oct. 1, 2019. Conlin would not be seeking re-election in 2020 because of the 70-year age limit for Michigan judges. Judge Conlin, who has held the seat since 1995, told MLive that he decided to retire a year early because he was diagnosed with Parkinson’s Disease.
Frushour’s partial term will commence January 13, 2020 and expire at twelve o’clock noon on January 1, 2021. If Frushour wishes to seek a full six-year term, she would be required to run for reelection in November 2020.
Courtsey of MLive
When a potential client reaches out to me about a second offense DUI, it's important to view the case from all sides of the aisle. As a former prosecutor, I understand that our prosecutor for our case will NOT give us the benefit of the doubt. Not only will they "judge you" on your prior, but they will assume the worst between incidents. What does this mean?
Let's say you had a prior DUI case in 2015, it's now 2019; prosecutor will assume you were drinking a driving for the last 4-5 years, but were simply not caught. It doesn't matter if it's true or not, it's a perception we need to overcome. Don't expect any sympathy from a prosecutor with a prior drunk driving offense. More on how to change that a in a bit.
Next, we need to factor in the judge. Based on more than a decade of experience working with judges on DUI cases, they think the same, but may not always expressively state that, but they still believe it. As an elected judge their role is to "protect and secure the community, which elected them" - what does this mean?
It means that if someone is a repeat drunk driver, as the judge of the community, they need to decide how to stop this person from repeating this dangerous behavior. There is also a track of record of having a past case and whatever was implemented from the previous judge, simply did not work to stop a repeat offense. First instinct is to do more, more severe, send a strong message; that makes a lot of sense and is the natural reaction for a judge. This could mean up to two years of intensive probation, daily alcohol testing, jail etc.
So how the heck do we overcome the prosecutor and the judge? How do we avoid simply sitting back and hoping for the best? What if you had the power to overcome these perceptions and create your own course? Well it's very possible, but it does take work. It means being proactive, and putting a series of steps into place right away. This can be the best or worst day of your life, and the prosecutor and judge are ready to make it your worst, so you don't do it again.
We have an opportunity to flip those tables and make it your best day, to begin to reflect, learn and change without anyone directing us to do this. This is what I do as a DUI lawyer in Michigan. We are proactive from day one and work every single waking hour on changing the perception of the case. Reach out about your unique situation, and we can discuss your options.
I work with a lot of clients who either live out of state when arrested for a DUI, or while on probation for drunk driving, suddenly have a need to leave the State of Michigan. Common reasons being job opportunities, change in family dynamics, caring for a family member, going to college or graduate school, and a number of other reasons.
By law, a court must grant someone on probation permission to leave the State of Michigan, which of course means if you want to move, you need the permission of the court. Many people are discouraged and think they are stuck here in Michigan, because they have a probation officer and requirements to be fulfilled. The good news is that with new technology, comes additional flexibility.
It's a very reasonable request to make of a judge if you have a valid reason to leave the State of Michigan. A judge may agree to end your probation, allow you to report via mail, or make your probation a non-reporting probation. There are many options on the table if you need to leave the State of Michigan for a drunk driving probation, and I help clients achieve this goal on a regular basis.
Livingston County Drunk Driving Judge Daniel Bain - Howell, Brighton, Green Oak, Fowlerville, Pinckney
Governor Gretchen Whitmer today appointed Daniel B. Bain to the 53rd District Court in Livingston County.
“Daniel is a proven professional who will treat the court, and everyone who comes before it, with the highest level of integrity and fairness,” Whitmer said. “I have full confidence that the residents of Livingston County will get the type of public service that they expect and deserve.”
Daniel B. Bain, of Howell, is a partner and general practice attorney with his law firm Bain & Bain, P.C., where he represents clients in civil and criminal cases, including contract disputes, landlord and tenant matters, zoning disputes, divorce and family law, and misdemeanor and felony criminal cases. Mr. Bain has been with his family’s firm for over 25 years, practicing with his brother, John, and late father, Jack. Prior to earning his law degree, he worked for the firm as a law clerk.
“My goal is to treat all litigants with courtesy, dignity, and respect,” Bain said. “Stepping into a courtroom for the first time can be an intimidating experience, and I want everyone to know that they are getting a fair shot when they are in court with me.”
Mr. Bain graduated from Hartland High School in 1985 and earned his Bachelor of Arts from Michigan State University and Juris Doctor degree from the Thomas M. Cooley Law School. Mr. Bain has served on the 52-1 District Court Sobriety Court Advisory Board and as a member of the Michigan United Conservation Club.
This appointment was made to fill a partial term, which expires at twelve o’clock noon on January 1, 2021, after former Judge Theresa Brennan was removed from office by the Michigan Supreme Court. If Mr. Bain wishes to seek a full six-year term, he would be required to run for reelection in November 2020.
This appointment is not subject to the advice and consent of the Senate.
The answer to this question is overwhelming yes, but there are exceptions. The default sentence for drunk driving in Michigan is some combination of jail and probation. This is actually a sound approach by a judge, because it's the judge's job as an elected official to protect the community, which means supervising someone who recently endangered the community by drunk driving, but what are these exceptions?
What if right after being arrested for drunk driving, you started a comprehensive proactive approach on your own terms? You started alcohol testing, subjected yourself to a fair and balanced alcohol assessment, engaged in counseling, attended AA meetings, gave back positive time back to your community and a series of other positive steps.
A judge, prosecutor and probation will be extremely impressed with your proactive mindset and your willingness to turn a negative into a positive learning experience. By supervising yourself, holding yourself accountable, and putting real tangible efforts into place, you have a much better chance of limiting or avoiding probation. Should this be the expectation? No, but when arrested for a DUI, your first thought should be, what can I do to improve my case, and the perception of myself with the judge, prosecutor and the community?
I help clients on a regular basis, limit, shorten, and sometimes avoid probation altogether. If you're in a court with a reputation for upfront jail, or you're on a 2nd or 3rd offense, jail is a strong possibility, and this approach becomes even more important.
A client charged with an OWI second offense in Michigan faces mandatory jail time and loss of license for at least one calendar year, more if there are additional prior offenses. Assuming you have one prior DUI in the past seven years, you need to strongly consider these two issues.
More importantly, what the heck is going on in your life that you picked up a second drunk driving? It doesn't make you a bad person, bad parent, employee, member of the community, or anything that can't be turned around, but it's really time to embrace help from outside sources.
A sobriety court in Michigan could help you avoid that mandatory jail, and potentially give you the ability to drive a car in the near future vs waiting a full year. The problem is your court MAY NOT have a sobriety court that is funded and approved by the State of Michigan. And if it does and you do not live within the jurisdiction, the sobriety court could say you're not eligible.
So here we are, we want to keep our license, avoid jail and get help, but all doors appear closed on us? Well not necessarily; I have successfully worked out sobriety court transfers in and out of many courts in Michigan. It's not always easy to ask a court to sign away power over your case after breaking the law in their city, township or village - even within the county. It's even trickier to get another court and probation staff to take one "someone else's problem" in a county or city which you didn't even break the law.
So how do we do this? We get to work, and demonstrate hard work, motivation and we're worth the extra screening, time, paperwork and effort by all parties. All of my clients begin a proactive program on day one, and this is the key part of working out this type of challenging transfer. It's not easy to get people to agree without previewing your performance and motivations.
If you or someone else has researched sobriety courts in Michigan, yet don't think you're eligible because of the court you're charged, let's talk about some options to get you where you need to be.
When contacted by a potential client charged with drunk driving in Michigan, one of the first questions I ask is how they came in contact with the police?
Most answer they were speeding, failed to use turn signal, going outside traffic lanes, not using headlights etc. Some are unfortunately involved in a single car or multiple car accident. Occasionally the client tells me they left the scene and were later found by the police, either still driving or already parked at home and they get a knock on the door.
Most would agree that committing a crime then "running away" does not make the situation better, in fact it does make it worse. I've sat across prosecutors on many occasions where they pile on and say "they drove away" and don't want to cut any deals or give any consideration for the case. I don't blame the way they view the case, because it is what I did when I was a prosecutor in New York City and in Michigan.
What I do as a Michigan DUI defense lawyer is focus them back on my client's proactive progress as how the client actually reacted to their poor choice as the "next step" - the driving away was not the next step, because they were still drunk and under the influence, and not being themselves. It's the same bad choice compounded.
Along with highlighting the steps the client has taken since the incident, it is important to remind the prosecutor that the incident/date in question was NOT a proud moment for the client, and they are no excuses for what happened.
Drunk driving was bad enough, leaving the scene while an additional poor decision is just part of same poor choice; a "bad night". If they were dumb and drunk enough to do this then it's not a surprise that they panicked and drove away. It's within the same lapse in judgment and we need to segment those choices together. Isolate them and close the door - the bad part is done with, no need to pile on.
If the prosecutor is going to view the drunk driving and leaving the scene as a series of bad decisions (1 and 2) and not the same one, it makes things more difficult. That is why the proactive steps need to be advocated as the "next step" or step #2 vs the leaving the scene being the next step. It doesn't seem like a big difference, but I've personally experienced this conversation on both ends, as a prosecutor and defense lawyer.
I just can't believe other DUI lawyers in Michigan don't prepare their clients for court, and to give them a fighting chance to show that "next step". To simply walk in and ask a prosecutor for consideration based on speculation "my client has learned from this, won't do it again", let alone try to sell that to a judge, it just boggles my mind.
DUI Attorney & Former Prosecutor Jonathan Paul