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(8) Preemptive Strike
Part of the Shock and awe approach is the willingness to actually contest the evidence via motion practice and hold hearings on the evidence. A motion is filed with the court, and the court can either rule on the action requested, or agree to hold a hearing.
At this hearing, the burden will be on the prosecutor to produce both witness testimony and physical evidence in order to demonstrate that my client’s constitutional rights were not violated, and that the issue is a matter better suited to be heard by the trier of fact on the question of guilt or innocence. If a judge suppresses evidence this means that it will no longer be admissible at trial, and depending upon the evidence, a prosecutor may be forced to dismiss the entire case.
Here are a few common issues, which I challenge on a regular basis:
- The validity of the traffic stop/police detention
- Suppression of statements made by my client
- Challenge the probable cause to arrest and all further evidence
- Challenge the admission of the PBT and field sobriety tests
- Challenge the admissibility of the Datamaster
- Challenge the admissibility - Gas Chromatography/Blood
(9) 5-Star Trial Method
If after exhausting our efforts outside of the courtroom with the proactive program, and challenging the evidence via motion and evidentiary hearing, we’re still not presented with an outcome, which my client find acceptable, then we go to trial. A trial can be with a judge or jury, and that is usually judge and fact specific to each case.
Ultimately the burden is 100 percent on the prosecutor to present evidence of the “elements” of the offense. For most misdemeanor DUI cases those elements are driving (as defined by the law) by the Defendant, and either impairment or intoxication, which can be done with a chemical test result.
My method essentially all comes down to the five levels of proof provided by Michigan law. In my experience as a prosecutor, and now as DUI defense attorney, most attorneys ignore or simply skim over one of the greatest assets of a defense lawyer. The power of reasonable doubt is ignored, and a jury is allowed to simply hear the evidence, and pick a side without really applying the law.
Here’s what happens in 99.9 percent of DUI cases in Michigan. Prosecutor presents witness testimony, test results and argues that the elements are clearly met. Defense lawyer repeats many of the same questions asked by the prosecutor, and fishes for “yes it’s possible” answers from the prosecution witnesses. Maybe they throw in some questions to take the shine off the test result, and get the prosecution witnesses to admit some positive facts.
Jury still has the cold hard facts of driving and usually a BAC reading over the legal limit; that seems a lot more powerful than a few chips taken off by a defense lawyer, and well I don’t like drunk drivers, so I am going to vote guilty. This approach will get you convicted almost every time, because the defense lawyer is allowing a jury to apply the wrong standard, and they simply don’t know any better.
It’s not the jurors fault, as they were not educated during the jury selection process, and both the judge and lawyers threw out the term reasonable doubt without giving any context or meaning.
I’m not going to get into the specifics on how I build that doubt for a jury, because that’s why a client hires me, but I will do a quick demonstration on how the five levels of proof work.
The typical case only uses the term reasonable doubt, and the phrase guilty or not guilty as if they are two equal results. The cards are also stacked against the defendant in terms of evidence despite some chips knocked off by the defense team. By default, the “guilty” column is going to appear to be a lot stronger than the “not guilty” one. That’s how people get convicted.
You can take those same chips taken off the evidence (or chunks if I am the one defending you), and put them up in the correct context of levels of proof, and with the right jury, you can win every time no matter your facts.
In Michigan, there are five levels of proof: reasonable suspicion, probable cause, preponderance of the evidence, clear and convincing evidence and reasonable doubt.
An officer can pull you over or detain you if they have reasonable suspicion a crime was committed and you were the one who committed it. Probable cause is the standard for arrest, which means “you probably did it” based on the evidence. Both of these are not enough to convict someone.
You then have the three trial proofs. Preponderance of the evidence is the classic 51 percent rule; put the good and the bad on a scale and if the guilty facts outweigh the not guilty than you pick guilty. Clear and convincing is the next level, which is as it sounds, you are clearly convinced of the person’s guilt, so you vote guilty.
Reasonable doubt is the last one, but the perception does a 180 turn once a jury understands what’s beneath it. I educate a jury from the beginning of the case on these levels, provide them multiple reasons to doubt the evidence during the trial, then walk them down the five levels of proof at the end of the case.
Essentially, I give the jury a long enough leash if they wish, to believe it is “reasonable” that my client is guilty, that the client is “probably” guilty, that is more likely than not that they are guilty, and even that they are clearly convinced that the client is guilty.
It’s a mistake to allow a jury to think about the case as 0 or 100, yes or no, black or white; you need to empower a jury to view the facts and say “yeah this guy isn’t innocent”; if you fight that then the only other option is guilty. Give the jury room to breath, and hold their hand up the steps of proof; tell them it’s ok to keep going, but before we get to the highest level, they will realize that they can’t take the final step.
You can’t be afraid to let a jury walk away clearly convinced that the client committed a crime, but they followed the rules, applied the correct legal proof, and found at least one reason to doubt the client’s guilt. My method builds up plenty of doubt, and provides enough justification to stop at a level shy of beyond a reasonable doubt.
I compare this jury ignorance of the legal proofs to a situation many years ago when a social experiment was done with a famous violinist and Grammy-winner who posed as a street performer in the subway while unbeknownst to subway riders was playing a $3 million instrument. He performed the same music, which otherwise costs hundreds of dollars to buy a ticket to see his performance live in world famous venues.
A jury in most cases is just going to go with their instinct and react in the most familiar manner. They hear 100’s of people playing instruments in the subway, this 101st performer sounds similar enough to group them into my typical reaction; ignore it.
In a DUI trial, well the evidence sounds like what I would expect in a DUI case, there’s enough there, and well the defense lawyer is being paid to try to get their client to be innocent.
An educated evaluator of music will immediately hear the difference, as will an educated juror. When put in the correct context, a juror is going to apply the correct standard, and give my client the path for a successful outcome.
(10) A-Plus Contingency Plan
If after maximizing our leverage and playing our cards, the client decides to end their case with a deal, then we will be sentenced by the judge. Most sentences go like this:
Client and lawyer show up in court a bunch of times, something is eventually worked out or the client is convicted by a jury who didn’t understand the levels of legal proof, and now the client will be assessed, evaluated and judged by probation who will supply a recommendation to the judge for the eventual sentence. Same client and lawyer get a copy of this a few minutes before sentencing, and can agree or disagree. Lawyer says their client is a great person, has a job, kids blah blah blah.
That doesn’t move the needle, and the client is paying thousands of dollars for a glorified babysitter. I take an entirely different approach. As I discussed above my client is on my proactive program from the day we begin working together.
The client can be DONE with their sentence before even going to sentencing. Yes, you heard that correctly. I get my clients credit for their entire sentence on a regular basis, because I know exactly what judges are looking for, and we’re doing it on our own time without the hammer of the court. If the judge doesn’t give full credit, they will instead reduce what they were going to sentence the client to, and again, the credited portion is now not performed on the court’s time.
Along with having all of this in place, it must be properly documented for the probation staff and the judge so that it can be reviewed in advance of sentencing.
If you were to be sentenced on a DUI case, under which scenario would you like to be in when your freedom is on the line, and the judge controls the next 24 months of your life on a misdemeanor or 60 months on a felony.
Scenario #1 - showed up in court a bunch of times, sat up late at night reading the internet and worrying, but didn’t do anything but worry for the last 6 weeks about this moment in front of the judge, and now you feel the urge to ramble in a mix of apologies and promises to never be back in court.
Scenario #2 - showing the judge just how seriously you are taking this case, as you’ve passed 120 alcohol tests over 60 days, you’ve learned a great deal at over 40 AA meetings, you are currently working with a substance abuse counselor to learn more about yourself, and make wiser choices, and you’ve given 50 hours back to the community in volunteer work to show you’re a positive member of society among other efforts - you don’t feel the need to apologize to a judge who was likely sound asleep and unaffected that evening, and you know not to promise a single thing, because you would have said you’d never get a DUI before this one happened - humble and optimistic about the future, you walk into court with confidence.
If we demonstrate strength, confidence and the willingness to fight real legal issues, and also provide the prosecutor with the escape hatch to get out of dodge and save face then we stand a great chance of succeeding.