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.
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