Washtenaw County Drunk Driving Consultation - Charged with DUI, the 10 Topics that should be covered with your DUI Attorney
I’m going to go through this how I would go through a DUI consultation with a potential client charged with a DUI in Washtenaw County. I will also provide my insight into each aspect, and I go through the questions. This ten-step information gathering process was created based on my years as a prosecutor in both New York City and Michigan, and specifically what I’ve gathered working with different judges and prosecutors in the Washtenaw County.
#1 - I ask the client their age, their job/career, family situation.
I need to know these things, because I need to go inside the mind of the prosecutor and the judge. Being older is generally better for a DUI case, and having a good stable job with a family is good for bond conditions in terms of ties to the community; being married with children is usually better than being single with no kids when charged with a DUI in Washtenaw County.
#2 - I ask the client about their criminal history, and if they have ever been arrested and charged with anything in the past.
Obviously a past DUI offense is relevant in the current case along with any other alcohol or drug offense. An isolated non drug or alcohol conviction is not going to be as relevant, but a long criminal history will be very relevant as the judge and prosecutor see this offense as a long pattern with no end in sight. Jail becomes likely with a long criminal record. If the client has two or more DUI convictions, the case will likely be a felony, but begin at the 14A-1 District Court, before proceeding to the 22nd Circuit COurt.
#3 - We discuss where exactly this happened, what police department was involved, and if they were brought to a hospital or police department.
This helps me determine which court in Washtenaw County the case will be held, and which prosecutor and judge will be handling the case. By determining hospital vs police station, it gives me insight on the timetable for criminal charges as a blood test takes some time to come back for charges.
It also lets me know which police department I will need to contact in order to obtain the police reports, testing logs, test results, audio, video and other records created by your case. Some departments require FOIA requests, some don’t, so it’s important to know which department we’re going to have to contact.
#4 - We discuss how the police came in contact with the client: accident, traffic stop, while sitting idle in a parking lot or parked on the side of the road, and if they were seen in the driver’s seat or elsewhere.
If your case involved a traffic stop, we’re going to need to take a timeout and evaluate the legitimacy of the stop . If an accident was involved, there might be medical records to review, and it’s likely the EMS, fire department and additional police officers were involved who wrote reports, and may have their audio and video.
It may sound silly, but if nobody saw you behind the wheel of the car, the prosecutor still needs to prove you were driving, and that is not always as easy as you may think. I’ve been a prosecutor and a defense lawyer in many of these types of cases where the case went to trial on this very issue.
#5 - The potential client and I then discuss what they may have said to the police about, such as where they were going from, what they had to drink, and statements about driving.
Most DUI cases in Washtenaw County are traffic stops where the cop sees you driving, but if they don’t, and you tell them you were driving then you’ve lost a possible defense. You also don’t need to tell the cop you drank anything, but 95 percent of potential clients admit to drinking alcohol to the police officer. The client also usually tells the truth about where they were coming from, such as a bar, restaurant or party, which is fine, but it doesn’t help your case.
Another underrated element of DUI cases in Washtenaw County is the timetable of alcohol consumption. Cops are trying to pinpoint your timetable, so they can document it in their police reports, and prevent your attorney from making arguments about rising blood, mouth alcohol, and the creative defense of “drinking after driving”. If they can lock you down to your answer you while flustered, and not thinking about possible defenses, you lock yourself in more than you need to at the scene.
#6 - We then discuss what happens once outside the car - what field sobriety tests were performed, how did you do, and did you take a portable breath test.
Once outside the car, there may be a camera recording everything, which may give us an objective viewpoint of everything, but at this point, I need to know what you remember.
Most police reports in Washtenaw County read as if the client failed every test, slurring their speech etc; the perfect drunk driver to prosecute. Usually that is not true, but some elements of the officer’s observations although subjective are likely true. At this point I am looking at the officer’s basis for arresting you. Based on the tests you performed, his/her observations of you, did the officer have enough to place you under arrest, and if not, should everything thereafter the bad arrest be suppressed, and your case dismissed?
I am also looking to see what your blood alcohol content (BAC) was at the scene. Although not admissible at trial (although admissible in very limited circumstances), it gives us an idea of where your BAC was going (up or down) when we compare it to the later result. It also gives the prosecutor strong evidence to show the arrest was valid if the BAC is or above 0.08.
#7 - We then discuss the point when you were arrested, and if you were read any rights, which relate to statements or chemical test rights.
For DUI cases in Washtenaw County, most of the incriminating statements are made during the “investigation phase” while standing at the car, or while performing tests. For the most part, you are not yet in custody and/or under arrest, and statements made at this point likely don’t require Miranda rights.
As for chemical test rights, sometimes the officer reads them at the time of arrest, or in the car on the way to the police station. I will want to know if they were read, and what you recall the circumstances at the time.
Audio and video evidence may be available to learn more about this stage of the case. This could be an in-car device, or a recording device at the police station, otherwise known as a bookin video.
#8 - Assuming you’re brought to the police station, we will discuss observation time, and the DataMaster test.
In Michigan, the police must observe you for 15 minutes prior to administering the DataMaster test. If this does not occur, the results can be suppressed via motion or challenged at trial. If you believe you threw up, coughed excessively or put something in your mouth before the test, I need to know this, because it could impact the results.
The DataMaster is the machine used in Michigan for chemical breath tests, and typically two tests are administered. Generally, if only one test was done, or one of the tests had an issue, that may be a fruitful exploration for dismissal or a defense at trial. This ins and outs of the challenging the DataMaster are discussed in far greater detail in my other books and my websites if you would like to review.
During this time, the officer should have read you the chemical test rights if they have not done so already. You have the option to refuse the breath test, but the officer SHOULD inform you of the consequences, such as suspension of license for a year and 6 points on your driving record.
#9 - If you end up having blood drawn, we will discuss how you got there, and the impact on your case
If the officer takes you to the hospital by his/her choice or you go via ambulance (more likely in accident cases), and blood is drawn, this will delay your case as we wait for results. If the officer wanted to do the DataMaster test, but you refused, we will discuss the Implied Consent issues triggered, and your options.
If you refuse the DataMaster in Washtenaw County, you have 14 days to send in the paperwork for an appeal; if not, your license is gone and you have six points on your license. The Implied Consent process and the hardship license option is beyond the scope of this book, and available in my other books, and my website for your review.
#10 - The final conversation is about possible court dates, and beginning my proactive plan immediately.
Some clients already have a court date when they contact me, but some are still waiting for a court date. Some clients have a ticket, which says they must contact the court within X amount of days. Either way, if we decide to work together, we will likely call a timeout and have this first court date waived or adjourned. Beyond going through these steps, we now need to acquire all of the evidence, which the prosecutor and judge already have in their possession. We need to get on an even playing field as we explore all possible defenses.
We also need to begin my proactive program, which will be geared to the specific facts of your case, and take into consideration the assigned judge and prosecutor. Ideally, I like to create about a 30-day window.
Drunk Driving Washtenaw County Attorney - Charged with a DUI, what are my options, and what should I know about an OWI?
According to the latest Michigan State Police Drunk Driving Audit, there were 850 DUI arrests in Washtenaw County. Of the 850 arrested, 609 were men, and 241 were women. These numbers don’t tell the complete story of DUI offenses in Washtenaw County, because these numbers are always viewed in a worst case scenario point of view.
In the same time frame, there were 2,271 injuries caused by traffic accidents, and 23 deaths in Washtenaw County alone. While most DUI arrests don’t involve a serious injury, or death, the prosecutor, judge and the community view this non-result to be lucky, rather than the logical outcome. When you’re arrested and charged with a DUI in Washtenaw County, you’ll be viewed as a dangerous drunk driver no matter how things ended on the road.
When a client contacts me about a DUI in Washtenaw County, they tell me about their family, their job, and all the responsibilities they have. Some clients are extremely remorseful about what happened, while some are already complaining about being arrested and charged, and want the case thrown out. While some cases do get dismissed and thrown out due to a problem with the violence or the actions of the police department, most cases are simply catching the person in the worst situation possible, drunk behind the wheel of their vehicle. People react very differently to feeling like they are not in control of their case, and their entire future is now at stake.
The first thing I do with any potential new client is call a timeout. Things are moving fast for the client, but moving very slow for me, because I handle hundreds of these cases each year. The client has usually never been arrested for anything, especially not drunk driving, and they need this timeout to re-focus on the process, and put together a game plan. I apply my mindset to my client, and we go over everything about the case, and about their own life.
It’s important that I gain a full understanding of their life, and what lead up to this moment in time; I also need to know where they are heading in life with their goals and dreams. I’m quite blunt in telling the client that their past and future are relevant to our plan, but the prosecutor and the judge really don’t care, because all of this was in place when you were arrested.
An example being the following: the client tells me that he drives a company car for a living, and must go jobsite to jobsite, along with domestic and international travel on a weekly basis, and he “cannot afford a DUI on his record”.
My first response is that nobody wants a DUI on their record, and although you have some additional circumstances that make having a DUI conviction bad for your life and career, you seem to understand the consequences, and likely knew them before you put yourself in a bad position with the law. I’m blunt about this to my client, because he/she needs to understand how the judge and prosecutor sees the case. If you had all of that on the line, why would you even risk putting yourself in this situation?
Once we’re clear on that perception, we can get to work on putting my client in a position where he/she has real power. A client does not have leverage or a bargaining position based on something that was in place when the offense occurred, but they can take complete control of their case in the present moment with a proactive program. The past and the future don’t empower a client, but the present can.
I discuss my proactive program in great detail earlier in this book; for now, I want to focus on the inside the courtroom plan, and some specifics about each court in the County. Each DUI case in Washtenaw County has two paths; the proactive empowerment path where a client could earn a dismissal, a reduction and participate in determining their own outcome/sentence, and the path of contesting the charges for a dismissal or a not guilty verdict.
My clients go down both paths, until we have created all realistic outcomes based on the specific facts of their case. Here is my process, which I call the Information Gathering Stage.
Open Container Ticket 15th District Court Ann Arbor - Respond within 10 Days - Criminal Defense Attorney
This is by far the most common phone call that I receive in the fall, and usually during or after a football weekend. I hear from alumni who were back in town visiting, doctors, lawyers, moms, dads, fans of the opposing team, and people of every age, race and occupation. It all begins with the same phone call or email:
“This is ___________, I received a ticket for open container in Ann Arbor. I was tailgating/walking around with friends/going from one house to another, and the police stopped me, and told me I can’t walk around with a beer”
The client then sometimes tells me they are from out of town, and they need to be in court in 10-14 days, and they don’t know what to do.
The first thing I tell this client is that this ticket is a misdemeanor crime, and they need to call a timeout. Some potential clients are looking to get it over with as soon as possible; I tell these clients that if they plead guilty they will have a criminal record. Many people are shocked as this offense doesn’t seem like a big deal or back home this isn’t against the law. It’s a huge wakeup call, and usually puts the client into panic mode.
I handle these cases in the same manner as I do other cases; we’re proactive from day one. Although the case seems minor, we still need to treat is as major in the short term to avoid a long-term criminal record. I usually want to know everything I can about my client’s career, and I request they send me a resume. I discuss issues they could have with a criminal record with their career, and we make a plan to have the misdemeanor dismissed. My clients cannot afford any other outcome for their job.
If my client is from the area, we attend court together; if my client is from out of town, I can usually work with the prosecutor and judge to have my client excused from court. If my client follows my lead with my proactive program, I can typically workout a dismissal with the judge and prosecutor, and keep a clean criminal record for my client.
If you’re charged with with an open container offense in Ann Arbor, the prosecutor will usually be the City of Ann Arbor, and the judge will usually be Judge Valvo. Your case may be set with the magistrate at first, but we waive this court date, and get you a real court date where we can execute our plan, and have the case dismissed.
When we work together, you will no longer need to report to the courthouse within the 10-14 days listed on your ticket, because my attorney paperwork with satisfy this condition, and you will avoid a bench warrant. I will be able to take over all communication with the prosecutor and the judge, and we will formulate a comprehensive plan, set goals, and reach those goals together.
Another type of open intoxicant case happens in your vehicle. It is illegal in Michigan to have an open container in a vehicle. This is a misdemeanor offense, which can be found in the traffic code, and it cannot be expunged or dismissed as the original charge due to it being a traffic offense.
Anytime you combine a vehicle and alcohol, the next thought is drunk driving. Even if you haven’t drank the beer, or you have, but you’re under the legal limit, it only means the cops caught you in time before anything worse happened. This is exactly how a prosecutor and judge will view your case. We’re proactive from day, and fill in all the unknowns with positive action.
We acknowledge that the case could have turned into a DUI, and combining alcohol use and a car are dangerous. It does not matter what the truth is, it’s about the perception from the judge and prosecutor, which we’re addressing. If we’re proactive and address all possible concerns, we can usually work to a dismissal of charges, and no criminal record.
Ann Arbor Disorderly Conduct Public Drunkenness Disturbance 15th District Court Attorney - Judge Hines Valvo, Magistrate Garwood
This section encompasses a number of different charges that both the City of Ann Arbor and the Washtenaw County Prosecutor’s Office charge a lot of people with. If you’re acting poorly, causing a scene, not complying with others, and you give the cops a tough time, they are going to charge you with some sort of disorderly conduct offense. There’s a crime to charge you with based on just about any type of behavior.
The police in Ann Arbor typically give you a chance to leave the scene, and if you don’t listen, you’ll be charged with something. If you’re not leaving a business despite multiple requests, causing a scene or fighting, you’re going to get charged with a misdemeanor.
When you appear in court with one of these many charges, it will be assumed you were drunk, and “acting like an asshole”. I’ve worked with hundreds of clients who were causing scenes in bars, restaurants, and out on the street or sidewalk, and due to the use of alcohol didn’t use their best judgment and just shutup and walk away.
Now that my client is in court and sober, they don’t want to be judged on that drunken moment, but why should a prosecutor or judge give you a break? Your past won’t save, because you still acted in this manner despite past accomplishments. Your future goals might save you, but you should have reminded yourself of those goals when the police officer gave you a final chance to move on. The best way to avoid being judged on this one moment is by being proactive in the present. Together we offset this embarrassing moment by responding in a positive way, which demonstrates that you understand your actions, it’s soaked in, and you’ve made changes going forward.
It’s easy to say you’re better than this moment, or you’ve learned from it; those are empty statements. It’s what have you done since this moment in time to learn from it, and be better going forward.
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