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. 
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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.  

Steve reaches out to me about an old felony case from his earlier days.  He tells me that when he was in his mid-20’s he got caught up with the wrong crowd and ended up doing some foolish things with his life.
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Steve has a felony assault on his record and a marijuana charge from two different courts.  He has had these on his record for over 10 years and is looking to put his history behind him. 

These old cases have become more prominent in his life because he is looking to start his own business, and he may have issues with both a felony and a drug charge on his background check. 

Steve’s story is quite common in my experience.  People have a rough patch in their life, move on and have some success, but a ceiling in their professional life.  It is not easy to advance and reach your goals with felony and drug charges on your criminal history. 

Even though Steve is now a different man with a family, responsibilities, and no legal issues in over 10 years, his background tells a different story.  The reality is nobody cares about your present with a history; they simply do not want or cannot give that person what they deserve. 

If Steve can expunge these charges off his record, they will no longer come up in background checks, and his past will cease to exist to the outside world.  That sounds like an amazing outcome for Steve, but how do we get to that goal?

Why should a felony assault and a marijuana charge simply go away? What is the standard and process for reaching this goal? Michigan says an expungement decision must be made within the context of “is it in the best interest of society?”

A judge must decide the merits of Steve’s request vs the outside world being “warned” and “informed” of his past.  Is it worth allowing Steve to put NO CRIMINAL RECORD on an application? Is that the right thing to do for the company, agency or parties reviewing this information?

Steve is rightfully concerned that his past will forever haunt him, and nobody will give him the benefit of the doubt, so why would a judge? Best yet, it will be the same judge ten years later if still on the bench; it will also be the same prosecutor who charged Steve.  The Attorney General also gets to weigh in, and the Michigan State Police.

Steve needs the judge, two prosecutors and the police to all agree to this outcome? That sounds like a steep hill to climb, but with the right plan and approach, anything is possible.  I make sure Steve understands the hurdle we need to climb, but based on our conversation and the information he has provided me, I determine that he is a good candidate for this type of consideration.

The most important part is Steve does qualify for expungement.  Steve has waited enough time since getting off probation (5 years) and qualifies in the amount of charges (1 felony max, 2 misdemeanor max). Just because he qualifies does not mean he is entitled to anything. 

We need to take a very humbled and realistic approach to the situation.  We also need to be mindful that nobody is in a rush to grant this relief; expungements take months, sometimes a year plus depending on the court, judge, and unique situation.

We also need to be proactive in our approach and do our best to highlight his growth over the past ten years, and his future.  We need to focus in on that “best interest of society” for all the key players to review.  We need to show that Steve had made legitimate change and the reason for the expungement makes sense for the community. 

Steve agrees that it would be in his best interest to take a comprehensive and proactive approach to his case.  We begin to work together on having both charges expunged.  Steve’s case is unique in that the cases are from different courts with different prosecutors and judges; we need to keep all these different players in mind.
The first step is having Steve go back in time and re-examine the person he was back when these incidents happened.  There is nothing to hide, the more details, information, and knowledge we can convey to the judge and prosecutor about Steve from ten years ago the better. 

We then need to highlight and detail all the positive steps in Steve’s life over the past ten years.  This includes new education, jobs, family, qualifications/achievements, community involvement and other positive moments in his life. 

We need to show Steve at Point A ten years ago, and the timeline he traveled to Point B now.  What does that journey look like?

Once we flush out this journey, we need to then highlight Steve going from Point B to Point C.  That final point is where Steve is planning to go with his life; what is his next big step that he is being held back from? It must answer the question, if we expunge these cases, now what? Is Steve simply going to sit at home and be the same guy, or is there a next step in his plan?

Because Steve is starting his own business and would be disqualified from receiving licensing because of his past, we need to highlight this as part of his application.  Make sure that this barrier is flushed out and clear to the people reviewing his case.  We then need to show IF he can start his business, what does this mean for Steve, his family, and the rest of the community?

If Steve has his business open, are those benefits going to outweigh the downside of clearing his past from his history?

Once we have established the answer to the “best interest” question, we now need to shift our attention to what else can we do to enhance our application? Is there something we can do to give more confidence to the decision maker that the best decision is agreeing with our request?

For expungement cases, I like to add two unique elements to my client’s application.  I like my client to be productive during the time of application, which might mean some community service work in the same city/county as the original case. I want to be able to show the prosecutor and judge that my client is still making amends for his/her past choices and has a strong interest in making the community better. It simply cannot hurt to do more; it may be that little extra gets the job done. 

Next, we want to assist the judge in making the ultimate decision.  The prosecutor(s) get to object, agree or leave the decision in the judge’s discretion, but ultimately the judge makes the final call if the client is eligible.  If the judge is going to put his/her neck out there and clear my client’s record, we want to assist that decision in our favor. 

We do this by having Steve meet with a third-party mental health counselor; someone who can sit down with Steve review the past ten years and make a recommendation if Steve is in the right mindset to move forward with his life.  Based on that evaluation, is Steve someone who is likely to offend again, or has he made real changes?
Having a licensed mental health care professional recommend that Steve is prepared to move forward, and is a changed person, can give the judge confidence to simply “follow the recommendation”.  If someone where to come back to the judge one day down the road and ask for justification for his/her decision to expunge, they can point to my client’s third-party recommendation as a foundation for that decision. 

Because Steve has provided a detailed ten year timeline which shows his evolution as a member of society, and he’s agreed to do the extra community service, and sit down with a neutral third-party professional, he has put himself in a great position.  We can now make a compelling argument to the judge why expungement is in the best interest of society.  

Peter leaves me a voicemail early Saturday morning about a recent Resisting Arrest incident.  He says that he was out drinking at a bar with his friends and got into a dispute with one of the bouncers; he was forced to leave the bar and pushed out onto the street.  He felt this was unfair and tried to re-enter the bar; he was denied, and the police were called to the scene. 

Some of the details are fuzzy, and Peter is still terribly upset about a situation which he believes was not his doing.  He is upset at the bouncers and the police department.  Peter is in a very emotional state and has the fight or flight mindset impacting what he is telling me about the case.  I want to be respectful of Peter’s version of the story, but it is my job to figure out what the evidence is, not how Peter views what happened. 

As a former prosecutor, I view cases from both sides, and understand that a prosecutor only cares about the four corners of the police report.  It’s also important to focus on the underlying facts of the criminal charge, not use all of our energy and effort on disputing something the client is not even charged with; here is what I mean:
Peter is recounting things that happened in the bar with the bouncer, something about bad service, a bartender giving him the wrong drink, and being unfairly kicked out of the bar.  It sounds like he had a bad night, and maybe got some bad customer service.  The problem with this is Peter is NOT charged with being kicked out of a bar; it’s what is upsetting him, but he’s actually charged with shoving a police officer. 

Peter wants to focus on the “unfair” part, and not on the crime he committed.  This is quite common for a client who is still fresh off the incident; they also tend to focus in on what they believe has two versions of the facts. 
Sure, Peter could have valid points about bad customer service, he may even have a civil lawsuit against the bouncer if he was injured, but that is not my focus.  My #1 and only focus is the felony charge of Resisting Arrest that Peter is now facing.  The extra noise around the case is relevant to an extent, but NOT part of the equation for negotiations or at a potential trial.

If Peter is willing to refocus his energy, insight, and effort into the portion of the facts that landed him charged with a felony then we can get to work on figuring this out. 
Peter acknowledges that from what he remembers, he did push the police officer, but he says he was really drunk and upset.  Once he realizes that the case is all about THE PUSH, he begins to settle down, and is admittingly regretting this poor choice.
I do not want Peter to get too down on himself, I want him to understand the major opportunity presented in this case.  Peter has no prior criminal history; he has a good job and a family he loves. 

If handled correctly, we can isolate this moment in time, and explore the REASON this happened, not an excuse.  We can’t use him being drunk as an excuse or a defense, but it appears it was one of the underlying reasons why he acted in a manner, which does not reflect his past.

The problem we face are those four corners of the police report.  The prosecutor is going to review the officer and bouncer statements and read about a drunk man causing trouble at a bar; when the police were called, he then shoves a police officer.  We have drunk, causing a scene and trouble for a business and assaulting a police officer.  Although not charged with being drunk or anything with the bar, these are just pile-on bad vibes for the case. 

We deal in perceptions with the prosecutor and judge, and this is a terrible first impression for Peter. The four corners of the police report will sink Peter if we don’t do anything to counteract this perception. 

Remember when Peter was upset and arguing about what happened inside the bar? I explain to Peter that we’re going to turn this negative that he is so mad about, and wanted to “fight it” and turn it into a positive for our case. 
We need to make sense of this case for the prosecutor and judge and isolate what happened.  We aren’t going to dispute it, because he’s not charged with doing anything inside the bar, but we are going to flush out he underlying facts that ended up with an officer being pushed by Peter. 

We’re going to rely on the fact that Peter was drunk and upset to help our case; the more drunk and upset he is, the better for our case! That might not make sense at first, but we need to explain why someone without a criminal record, or any history of issues would push a police officer outside of a bar.  This can’t be his usual Friday night activity; causing scenes and pushing cops.  We don’t fight these facts, we use them with the prosecutor and judge to our advantage!

If Peter is so drunk and made, his decision to push the police officer makes more sense.  Peter respects the law, and his own father is a retired police officer; if he were sober, or drunk, but not upset, there is no way he would push the police officer.

Of course, we can’t go as far as to use these circumstances as a “free push the cop” card but if we can explain the underlying issues, we can isolate the result.  Well now what? Every time Peter gets drunk or upset, he is going to break the law?

Well no, Peter is 45 years old and has never had a criminal issue before.  But is this a new thing for him? If it is, what can we do about it?

As we explore the issue more it sounds like Peter has been having issues with his wife and was out to blow off some steam.  That steam resulted in getting so drunk that he lost control of his better judgment and being drunk and forced to leave the bar put blinders on his decisions.  If we can properly address this new underlying issue, we can avoid the #1 worst thing to be at the courthouse.

We do this by being proactive and turning this negative night for Peter into a positive time of growth, reflection, and insight.  If Peter is willing to put himself out there, get help and be open to making changes, I am confident that the prosecutor and judge will better understand his actions, and agree to support our long-term goals for Peter.

Peter agrees that the best approach is to take control of his case in a proactive way.  He also agrees that his drinking in past few weeks has accelerated and his stress level is way up.  He was drinking in order to get through the tough days and nights and agrees that he could use professional help. 

I am proud that Peter is open-minded about getting this proactive help, and better understanding of his mental, emotional, and physical health. This process will begin with professional counseling to address the stress and anxiety issues; we also need to address the new substance abuse problem developing.

It is also important to address the “anger management” issue from the push; while Peter may not have an issue with anger as a whole, but in a particular moment his brewing anger ended up in a felony charge.  We are going to be humble and be open to all help for this case.
 
We also want to demonstrate that Peter is a productive member of our community; this comes with highlighting his career, education, and family, but all of that was in place when he pushed the officer; we want to do something new.

We decide to sign-up for community service hours in the same community where this incident happened.  We want to give back positive energy and put in sweat equity.  We have a case where we disrupted a local business and respected and assaulted a member of law enforcement.  We cannot change what happened, but we can certainly do our best to counteract the negative energy which the incident; it is a start, and only helps our position. 

Because Peter has agreed to be proactive, we now have a path to create an outstanding result in his case.  Both the result itself, and setting him up to succeed in the future, with his family, career, and his overall well-being.
Peter’s progress will be shared with the police officer, prosecutor, and judge; there are the key players that we need to look beyond the four corners of the police report. 

It is our goal to work toward avoiding a felony on Peter’s record and avoiding jail time; those are our two main goals, and both can be accomplished because of Peter’s decision to be proactive. 
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We shifted Peter’s mindset of anger, frustration and feeling like a victim to a humbled and reasonable mindset that focused on tangible goals with a comprehensive plan to reach them. 

Over the past few weeks, I've spent my time over Zoom with clients, prosecutors, judges, probation and court staff.  Handling criminal cases over the internet has become the new normal for now.  Wanted to share some practical advice for clients and other attorneys based on my experience.

#1 - Just because the case is over Zoom does not make it any less serious or demanding.  Every Zoom hearing I have done, the judge is sitting in his/her chair in the courtroom with the full power over the case as if we were in person.  Any violations of bond or non-compliance is one phone call to the police away from them showing up at your door.  The distance of being over the internet will not save or excuse non-compliance.  

#2 - You must dress and act as if you were in the physical courtroom.  This means wearing court appropriate clothing, participating in the case in a suitable area of your home with good lighting, no distractions and confirming a good internet connection.  You should act as if the judge can see and hear everything going on around you.  A good pro-tip is to mute your sound if you find yourself in a virtual waiting room as other cases are going on.  

#3 - You must address the court in the same manner as if you were a few feet away from the judge.  This means referring to the judge as "your honor" and showing complete respect to the proceeding. 

#4 - Payments and obligations don't change because you're on a computer.  If fines are assessed, those will still be due; most courts have online payment, you can mail a check or use a drop box.  Failure to pay or fulfill an obligation has the same consequences despite the proceeding over Zoom.

The final piece of advice is not followed by the majority of attorneys and clients.  It is NOT required so if you're reading this, and you haven't done this, it doesn't mean you'll be in trouble, but in my opinion, you're not maximizing your situation.  

#5 - COME PREPARED! - this means proactively working on your case even before the hearing.  Your attorney should have worked something out with the prosecutor in advance, potentially addressed any issues with the court and judge ahead of the hearing, and maybe even spoke to the probation department.  Due to the lack of in-person interaction, it's sometimes difficult to cover a lot of issues, if something is complicated, it may not be addressed properly over the computer.  It is best to do the pre-work and turn the Zoom conference into a formality/simple proceeding with the heavy lifting already done.  

All of my clients are extremely proactive from day one, and this is even more important handling cases via Zoom.  Judges and prosecutors have more downtime in reviewing files, and my clients are able to participate in this process by providing substantial pre-court progress.  We can work toward changing the perception of a client's case well ahead of signing into Zoom. 

I've had a lot of success over the past few weeks with my clients, because we are miles ahead of the game, and make things easy for a prosecutor and judge to say YES to our requests. 

Due to Covid-19, most courthouses in Michigan are limiting in-person access to the general public; courts are handling some matters in-person such as felony hearings, some trials and in-custody appearances.  Courts are trying to either push other cases out, or figure out an alternative method to process cases.

In recent weeks, I have been spending my time on Zoom speaking to prosecutors and judges on behalf of my clients.  Courts, judges and prosecutors are getting more comfortable working on cases from a distance, and allowing the court proceeding to happen over the internet.  

There are challenges to this process, but also many advantages.  As an attorney who is extremely proactive with his clients, this extended timetable has allowed my clients additional time to change the perception of their case, and make a positive impact on day one.  

Prosecutors have also been more receptive to discussing cases in advance of court, and have more time to review my client's progress.  When a prosecutor views a stack of files, they see a name and a charge; they are easily distracted in the courtroom bombarded by attorneys and sometimes not able to focus their attention on singular cases.  It's always my strategy to reach out to a prosecutor ahead of time to have them review my client's progress, but now that is simply the new normal.  Prosecutors have a little more time to review my client's progress, and simply my clients standout like rock-stars in the process. 

Attorney A, B and C simply reach out and ask for a deal or great outcome without much justification.  In contrast I am able to say, "here is what my client has done since this incident" with attachments and details.  The prosecutor now has the time to review and shift their perception of my client.  I've had outstanding feedback from prosecutor's in the past few weeks; my clients have been praised for taking this negative time in their life and turning into a positive learning experience. 

It's also been my strategy to reach out to the probation department in advance and the judge's staff to send my client's progress.  This has expedited great outcomes, including dismissal of charges; advancing cases and being proactive has saved my clients months of probation, additional court dates, and earned them reductions and dismissal of charges.  

Like everything I do, we turned the negative Covid-19 and having to use Zoom into a positive for our clients.  My clients come to the Zoom hearing extremely prepared and ready to finalize great outcomes.  

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. 

Michael reaches out to me over the weekend about some felony charges.  When a potential client is charged with a felony, we have a more urgent timeline, because felony offenses have a ticking clock for a preliminary examination. 

I ask Michael to send me any court paperwork in his possession, which will allow me to see the charges, the court, the judge, when the offense happened, and any bond conditions in his case.  It is important to make sure that Michael understands his obligations, the rules for his case, and an idea of potential next steps.

It turns out that Michael is charged with a number of felonies in relation to breaking into property of another, with allegations he had a dangerous weapon, and there was a brief confrontation with the homeowner, which lead to felony assault charges.  As a former prosecutor, I understand that a prosecutor will charge as many offenses as possible upfront.  

I ask Michael to provide me background on himself, including age, education, work history, family, and any prior criminal history.  Michael tells me that he has some juvenile cases back in the day but is not sure of the charges; we make a note to obtain this record going forward. 

I learn that Michael is a recent college graduate with a 3.5 GPA, and has plans to apply for jobs in the near future; he comes from a stable family with two parents, siblings, and otherwise is on a good track in life.
As a former prosecutor, I explain to Michael that the prosecutor and judge will view his case from the four corners of the reports.  He will viewed as a dangerous young man who showed up at someone’s house with a weapon, and things could have ended up with someone killed.  You do not get the benefit of the doubt when you enter someone’s property with a gun and get into a confrontation. 

Michael hearing this is fearful of his future, because having multiple felonies on his record will deter his ability to thrive and survive going forward.  Although Michael is off to a bad start with perception of his case, we now explore what the heck he was doing on this evening, and to provide the context and reasons behind it.
 
Although these facts have created a bad first impression, we now need to explore the possibility of creating a true impression for the prosecutor, and judge in order to work away from worst case scenarios.  Without further context of this incident, it will be difficult to create a path for a reasonable resolution.

Michael explains that the house belonged to one of his friends who had some personal items that he had taken from Michael.  After digging more into the story, it sounds like Michael showed up in the middle of the night and was trying to retrieve his golf clubs from the other person’s garage. 

He agrees that he was not invited over, or had permission to do so, but Michael had won a bet, and he was supposed to receive the golf clubs. He was able to access the garage, and while looking around, the other boys parents woke up and confronted him in the garage with a baseball bat; Michael threw a golf club at the other person and ran out of the garage. 

I explain to Michael that these circumstances don’t necessarily create a defense to “win his case” but it does help us provide context to a prosecutor and judge; this was not a random act, he didn’t bring the dangerous weapon with him, and he did not initiate the “violence”. 

For sure Michael broke the law, potentially in multiple ways, but his presence there was justified in his mind (good intentions?), and his goal was to avoid interaction with the homeowner and leave with property be believed was rightfully his own.  While this version of the case may be something to explore at trial, we make it a goal to create alternative outcomes.

The ideal outcome for Michael would be a path to having no criminal record from this case, a chance of dismissal, but a period of time to reflect, and learn that his made a stupid choice to break into someone’s garage in the middle of the night to retrieve property.  He made it even worse by throwing a dangerous object at someone when confronted and running away. 

Some may say, well how was he going to get his property back? At 22 years old, this plan seems like a good idea; the goal is to learn that this is NOT the way to handle conflicts with other people even if justified in your mind.  There are other means, maybe more complicated, time consuming and “annoying” but ways to handle it without threatening your entire future.  Michael agrees that working toward a solution where he can make amends, apologize, learn, but also potentially earn a great outcome makes the most sense for all parties. 

This plan all starts with a timeout and taking a few steps back.  We need to reframe this case from dangerous burglar to “stupid kid trying to get his property back from another stupid kid”.  And I use that casual language on purpose; there is a tendency to apply stiff words and legalese to all cases, especially felonies. 

Legally speaking this looks like a profoundly serious case on paper, but reframing it in more casual, easier to digest terms, takes some of that heat off the case, and bridges the gap to a reasonable outcome.  If we can get the prosecutor to see this as two stupid kids fighting over a set of golf clubs, my client becomes a lot more human, reasonable, and someone you may want to better understand, and give a second chance. 

Reframing the case only begins here, we now need to show that Michael is not this “stupid kid” all the time; this is not a pattern of bad choices or a prediction of future actions.  We agree that taking a few proactive steps will be to our benefit in showing who Michael really is; the ambitious young man with a strong GPA, community involvement and big plans. 

We agree that the foundation to our entire plan begins with establishing a relationship with a counselor, especially if we can find a counselor that works with younger clients.  We want to start a strong relationship where Michael can be open and honest about his emotional and mental health.  At 22 years old, we don’t have all the answers; I tell him that even at 45, we don’t have those answers, and that’s ok, but we need to express what’s on our mind, and resolve conflict in responsible ways.  Michael agrees to research a good counselor to begin working with.

Next, we want to establish and reaffirm that Michael is a positive member of his community; he has a history of community service, but we want to reengage; essentially fill up our calendar so much in the present that we are too busy to get in trouble.  We need to counteract the moment where he stepped into that garage, and involved a homeowner, police, prosecutor and court.  Any hour we give back to the same community, helps us put positive vibes into the situation.

The most important element of this entire plan comes down to getting the homeowner onboard with the plan.  Michael cannot have any contact with the homeowner, and I remind him of that condition, but the prosecutor will speak to the homeowner, and can communicate all the proactive things that we are doing.  The prosecutor can also investigate beyond what is in the police report.  The reports by the police are created to prosecute, not to give a balanced two-sided account with context. 

By having a good relationship with the prosecutor, I can get them to dig a bit deeper into the case and see what is going on with the golf clubs.  The prosecutor can also review our counseling progress and community service work. We are also willing to pay any restitution for any damage during the incident; we want to work this out but need the “victim” in the case to agree.

By calling a timeout, regrouping and reframing the case for the prosecutor, she was willing to do some legwork for us.  It turns out that the young man who resided at the home admitted to his parents that he did have a bet with Michael, but he didn’t think the result was fair, so he refused to give them to Michael. 

This confirmation is not a defense for Michael, but it is a confirmation that at a minimum there was a dispute over the ownership of the clubs, and Michael had a reasonable argument of ownership.  It makes Michael seem a bit more reliable and reasonable in his actions; still against the law, but potentially closer to justified in his intent. 

This confirmation does not excuse the breaking into the garage or throwing a golf club, but it does show this was not a random act, and it’s likely to be isolated in nature; Michael had a reason to be there, even though he did it in an illegal fashion. 

This does not create a scenario where the prosecutor apologies to Michael, and drops the case, because those results are not common, and should not be expected; Michael overreached his legal ground. 
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What it does create is a path to a reasonable solution for all parties; potentially a path for charges to be reduced and dismissed.  A path where Michael can stand before a judge, admit his poor choice, and actions, but an agreement that is approved by homeowner, prosecutor and judge.  Michael will have a long way to go before he is out of the woods but can straight in a place where he has a second chance to have no record and stay out of jail. 
           
Based on reframing the case, providing context, confirmation by homeowner, and Michael’s willingness to be proactive, this outcome is very realistic based on my experience as both a prosecutor and defense lawyer. 

Madison reaches out on a Sunday evening, and tells me that she has been charged with an MIP.  I follow up and ask her to send me any ticket or paperwork from the police officer.  I also ask her for a summary of what happened, and a little background on herself. 

It is quite common for a young client to mention a single charge, when, they have multiple charges.  It turns out that Madison is charged with Minor in Possession, Urinating in Public, possession of a Fake ID and Open Container.  Madison is a college student who was ticketed while leaving a tailgate party and going to the bathroom behind a bush next to the sidewalk.  She is very embarrassed about the event.    
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As someone with no prior record, she is concerned about a criminal record, jail, and what happens next with the case.  She has not yet told her parents, because she is worried, she will get in trouble, and would rather not get them involved. 

First off, I make sure that Madison knows that everything is going to be OK.  Without a prior criminal record, she is certainly in a good position to learn from this and move forward in the right direction.  It is also important that she understands we have three criminal misdemeanors, and one civil infraction. 

We need to acknowledge how a prosecutor and judge will view the case; they do not get the opportunity to meet Madison, and learn about her background, and any future goals.  To them, she is someone who was completely out of control on a college campus; underage drinking in public, urinating and possessing a fake ID.  To them, this is NOT the first time she’s done this, but rather the first time she was caught.  How do they stop this happening again with Madison? Do they need to punish her? Give her a record so others who may wish to hire her know she is a problem child?

As a former prosecutor, I viewed this “college crimes” with a unique prospective.  I was once young and dumb and did things that I regret, but for some reason, there are prosecutors who do not think that way.  Maybe they did not have a good college experience and hold a grudge against youthful offenders who remind them of their own childhood.  It’s rare, but I’ve had prosecutors who want to punish youthful offenders even harsher than adults. 
 
We can’t rely on the fact that Madison has never been in trouble, and she is guaranteed a second chance.  We need to be proactive, and highlight who Madison was prior to this happening, what she is doing in the present to learn from this incident, and her plans moving forward.  Give them a reason NOT to give her a criminal record.   
Madison agrees that it would be a good idea to change the perception of her case; being judged on the ticket alone is not an accurate reflection of who she is as a person.  

It is important to address the elephant in the room; nobody thinks this was not Madison’s first-time underage drinking, and, nobody expects it to her last.  She needs to be more aware of her surroundings; if she were more responsible and simply left the party without the urinating and attention, she brought to herself, she may have not been ticketed.

Underage drinking in college is a bit like speeding; most will do it, most will get away with it, but if you’re going to go 90 MPH or drive in a reckless way, you’re going to be caught and ticketed.  For every 10 people in Madison’s same situation, 9 walked away without issue, but Madison made it worse with her additional choices. 

Now that she has been caught, it’s time to learn a valuable lesson, and make this the most serious time she ever walks into a courtroom.  I tell Madison that she is fortunate; it may not feel like it in the moment, but if this prevents a worse offense, then it will be worth it.  The 9 people who got away with it, may have to learn their lesson with the law with something more serious.
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Madison is confident if she follows my proactive program that the prosecutor and judge will be open-minded about a second chance, and redemption.  

We start by addressing the alcohol usage; in no way do we consider Madison to be an alcoholic or a problem drinker at this point.  We focus on awareness, insight and experience-based learning.  We want Madison to focus on making good healthy choices in college; to focus on her grades, and to not jeopardize her own safety.  Consuming alcohol in college goes beyond avoiding the cops; drink too much and you can find yourself unaware of your surroundings and be hurt or taken advantage of by another.
Most college campuses have alcohol awareness program geared toward their students; it’s usually 1-2 sessions and convenient to accomplish.  If the school does not have this program, I refer the client to another program, which will accomplish the same goal.  We get a certificate of completion for the program and have made a big step in the right direction. 

I also have my young clients attend 1-2 AA meetings locally in the area in order to get a better understanding of “what could happen”.  My clients are not in a position where AA is necessary and we are likely not at a dependency or sickness, but we never want to be there.  If we can learn about the pitfalls of alcohol at age 20, we can avoid those worse case scenarios at 35 or 40 when my clients have careers, families and more to lose. 
Madison agrees to sign up for the class at her school, and plans to attend two AA meetings, going once a week for two weeks.  We also decide it would be beneficial for Madison to write a letter to herself that she could have put on her nightstand the morning she woke up on the date of her incident. 

We can’t go back and change what happened, but what would we tell ourselves is going to happen, and why? Hopefully attending the awareness course and some AA meetings will make this clearer to understand.  It also helps Madison when we go to court if a judge inquires on why did this happen, and what did she learn form it?
A prosecutor and judge need to hear that Madison understands how she found herself in this situation, and what she is doing moving forward to avoid it happening again, or something worse.  There are some judges that see these types of offenses as a gateway to more serious drug offenses, and drunk driving.  We want to avoid the client being hammered into deterrence.

Madison shares her letter with me, and she realizes that she drank way too much, didn’t pour her own drinks, wasn’t aware of how much she drank, and barely ate anything that morning.  Because she was at a crowded party at a house, she was not familiar with, she did not feel comfortable using the bathroom.  She hoped to find a business to use their bathroom but was not able to do so.  She simply had to use the bathroom, and just went. 
It is also important that Madison understands how serious possessing a Fake ID is for a potential background check in the future.  While most think of a Fake ID as a way to underage drink or get into a bar, the charge will look very different on a background check. 

Phrases like fraudulent identification, altered government documents are NOT what you want on a criminal charge on your record.  There is no explanation that says “Madison was only 20 and wanted to be 21 to go to her favorite bar”.  A grad school, future employer, customs or anyone reviewing it will not have that context. 
Madison makes sure to address this in her letter to herself and urges her to remove this from her wallet as it is a ticking time bomb.  It is important we acknowledge this for a prosecutor and judge. 

Madison also agrees that it would be worthwhile to spend two days volunteering with a non-profit in her college town.  While she has volunteered in the past, we want something fresh and new; a self-imposed penalty for breaking the law.  We need to counteract these criminal charges with some positive vibes of her own.
Because Madison has followed my lead, and agreed to be proactive, she is in an excellent position to resolve her case in a favorable way.  Despite three misdemeanors, we can likely create a path to have no criminal record from this incident, and limit court supervision. 

Depending on the court, and prosecutor, it may also be possible to avoid the civil infraction for an MIP.  While this seems less serious than a misdemeanor, a civil infraction will always be public, and will go on your driving record.  I have seen clients have more difficulty explaining an MIP on their record than the original criminal misdemeanors. 

Fortunately for Madison, our prosecutor agrees to dismiss all three criminal charges, and the one civil infraction in a view different way, and the judge is agreeable.  With such an extraordinary outcome, some judges may question the outcome, but we have justified the deal we received, and all parties are in agreement that Madison has earned a second chance.  

Name: David
Age: 55 years old
DUI from 20 years ago on record
Profession: Consultant
 
I get an early morning voicemail from David, who has just been released from custody. He informs me that he was arrested for domestic violence and is now staying with his brother.  He was told not to return to his home with his wife and kids.  David is scared and has a piece of paper with a court date and a list of bond conditions.  He wants to talk and find out what the next steps for his case would be with an attorney.
 
After reviewing this information, I reach back out to David to learn more about his background, the case, and some goals for the case. 
 
David tells me that the incident involved his wife who he has been married to for 28 years, they have two children, and he has not had any issues with the law since he was much younger; I clarify when and what is in his past, and he tells me an old DUI from about 20 years ago. 
 
David is a consultant to travels often and is the main financial support for his family; he is worried that his wife may divorce him, and he won’t be able to see his teenage children. 
 
We then discuss what exactly happened; David is honest and says he drank way too much, and he got into a verbal fight with his wife about him not being home enough, and she suspected he was cheating on her while traveling during the week.  Eventually this led to his wife swinging violently at him, yelling, and David reacted by shoving her against the wall, which caused her to hit her head.  One of the teenage children called the police, and he was arrested.
 
David is extremely apologetic about his actions, and admits that without drinking, this would not have escalated to violence.  He didn’t mean to hurt his wife, but she would not stop swinging at him, and he didn’t know what to do.  He is worried about international travel and his job with a domestic violence offense on his record.
 
It’s very common for clients to assume that if the “victim” wants to drop the case, that it can just go away.  For the most part, this is NOT true.  A prosecutor prosecutes a case on behalf of their city, town, village or county, not on behalf of the victim; even if the person alleged harmed wants the case to go away, that is not their decision. 
 
I ask David to send me the bond conditions which he was provided, and we go over what the no-contact order means.  He must not return to his home, and cannot have any contact with his wife, even via third party.  There is nothing on the no-contact order about his children, so he would be able to reach out to them and arrange to see them and talk to them. 
 
David is ok staying with his brother on a temporary basis, but is curious about when he can go home, and I explain that it’s a process, and it’s not happening just yet.  
 
I explain to David how a judge and prosecutor view his case.  In his mind, he drank too much, he took it one step too far, but this has never happened again, his wife ended up being shook up, but unharmed, and he is extremely remorseful.  It’s easy to think that this can blow over and move on with better intentions.
The prosecutor and judge know nothing about David, and do not take the same approach.  They will assume that David is a drunk, a dangerous man, and his violence threatens his family if he returns to the home. 
 
They can see his part DUI history, and while not directly related to domestic violence, it is a history of alcohol and breaking the law.  It doesn’t help our case that in the police report, David blew a 0.19 BAC on a PBT while in police custody. 
 
David, and I begin to work together, and I file my documents with the court, police and prosecutor so we can receive police reports, statements and any audio, and video.  We also want to confirm the first court date, and open lines of communication with the prosecutor. 
 
Once we receive the police reports, we are also provided a copy of a 911 call, which captures some audio from the incident, as one of the teenagers was calling the police on David. 
 
In the 911 call, you can hear the teenager fearful that his dad was going to hurt his mom.  More alarming, David threatening to kill his wife; something that David, and myself agree was the alcohol and his frustration peaking, and not his true thoughts or intentions, but again, the prosecutor and judge are going to think very different of these words.
 
While David maintains that the motivation for pushing his wife was her swinging her arms at him, I explain that the only way to present that theory of the case is at a trial, and that option is on the table, but we need to explore other means of resolution. 
 
Because of his documented intoxication, the teenager calling to report dad as the offender, and the audio of the death threat for any jury or judge to hear, it’s not exactly the best case to try in court.  David agrees that an alternative resolution may be in his best interest. 
 
I explain that any favorable resolution would need to be approved by a prosecutor, the judge, and most importantly his wife.  He is confident that she would be open to working toward a suitable outcome if presented to her.  I explain that the prosecutor will likely use a victim advocate to learn of her wishes, and her position on any outcome.
 
While we have a solid roadmap in place, we now have a lot of work to do in order to change the perception of David’s case.  A superior outcome is a longshot if we do nothing proactively. 
 
David sees the value in beginning a series of proactive steps on my program.  Because of the documented alcohol in David’s system, he has been ordered to do random alcohol testing as part of his bond, and we discuss how to comply, but we agree to go above and beyond and begin using a portable breath testing machine.  We agree that it’s our goal to have the court adopt our more aggressive testing, but for now, he will do both. 
 
We want to show the judge and prosecutor that alcohol is not an underlying issue for David despite his past from 20 years ago.  When told not to drink, he can comply, and he is not a threat to get drunk again and hurt someone he loves. 
 
We also agree to begin a proactive program geared toward domestic violence cases, because David admits that he handled the situation poorly, and can certainly learn valuable lessons in deescalating situations; he wants to work on himself, because he’s been drinking more than usual, working long hours, and very stressed. 
 
His actions don’t reflect how much he loves and respects his wife and children, but his underlying stress and drinking turned him into something he doesn’t want to become that evening.  If that’s the worst incident that happens between him and his wife the rest of his life, he will be grateful, but he admits he needs help, because when he drinks, he can be someone he doesn’t want to be. 
 
David is grateful to begin a program with specialized counseling, which incorporates a substance abuse component.  I also advise David that I want him to go to a few AA meetings, and get a sense of how alcohol has impacted others.
 
It’s more educational at this point, because I want David to hear from the people who have lost careers, been divorced, lost respect of friends and family because of their drinking. 
 
David also agrees that his actions caused a domino effect of public resources with the police, jail, prosecutor, court and judge all touching his case, because of his poor choice.  He believes doing a few days of community service in the same city as his case would be a way to begin to counteract what happened and put positive vibes and energy back into the system. 
 
Within 24 hours of this terrible and regrettable incident, we now have a realistic set of goals to keep domestic violence off his record, avoid jail time, and help him learn from this incident, and be a better husband and father. 
 
We embrace that this happened for a reason; nobody was seriously hurt, and we can turn this into a manageable situation.  David understood that words, promises and best intentions don’t move the needle, and agreed to a comprehensive proactive approach to the problem. 
 
We are now addressing the alcohol concerns, the conflict resolution and therapeutic issues, and counteracting breaking the law, by giving back valuable time and resources to the same community. 
 
Imagine if David didn’t agree to all of this? That’s what 99.9 percent of people who are charged with domestic violence do every single day in Michigan.  They allow the four corners of the police report to define them, and not a single thing changes when they go to court. 
 
 David is now on the path to creating a “true impression” of who he is, and where he plans to go in the future with the lessons learned from this case.  He is in an excellent position to reach all of his goals, and return home to his family. 

​RECKLESS DRIVING/LEAVING THE SCENE OF ACCIDENT
 
Name: Michael
Age: 31 years old
Prior traffic tickets/no misdemeanors
Profession: Auto Industry
 
Michael reaches out to me about several charges on a traffic ticket.  He starts by telling me he’s charged with Reckless Driving; I ask him to send me the ticket, because most of the time, a ticket has multiple charges listed, and a few issues to discuss. 
 
When I receive the ticket, I see a handful of charges; Reckless Driving, Careless Driving and Leaving the Scene of an Accident.  
 
As I am reviewing the tickets, I ask Michael to give me more information about himself, including past criminal/driving history, background on his family, career, and a summary of what happened. 
Michael tells me that he has no criminal history, but a history of speeding tickets, and he works in the auto industry at Ford Motor Company as an engineer.  He is single, ambitious and is required to have a driver’s license for his position.  He was also driving a company car at the time of the incident. 
 
In his summary of the events, Michael tells me that while driving about a mile from his home, he was cut off by another driver.  He sped up and chased the other car down; during this chase, both cars ended up colliding and on the side of the road.  Both drivers got into a verbal argument, and Michael drove off and went home with the intention of calling the police. 
 
When a client tells me what happened, I understand that it’s the best version of their case; meaning, they may leave out some facts, twist some facts for it to sound better.  That’s ok; it’s very natural to have a fight or flight, and sometimes we say what we wish we did, rather than what we did.
 
I have to strike a balance with a new potential client at this point.  I want to be supportive of their version of the story, but it does me no good if I simply say OK, and we go with their version of the story.  I find it helpful to ask a series of follow-up questions, because I view every single potential case from both the defense side, and the prosecution, and how a judge would view the case. 
 
Remember, the prosecutor and judge are just going to read the police report; they were not present, and my client does not get to file a defendant’s report to read. 
 
Based on what Michael told me, he acknowledges he was out on the road, had some sort of traffic incident with another car, and admits he left, but with the intention of calling the police. 
 
First follow up question would be, did you call the police?  Michael says no with a few reasons why he did not; the only key fact there is he didn’t call the police; even if he did, he still left the scene of an accident.  He tells me he was scared of the other driver, that’s why he left; this makes more sense, and is more relevant. 
 
So we have Michael’s version, but we won’t know the full picture until we see the police report, accident report, and any other evidence.  For now, I do my best to educate Michael on the charges.
 
   Some people view a traffic ticket as less serious than “criminal charges”; unfortunately, many traffic tickets are misdemeanors, and they are more serious. 
 
     Not only are they potential criminal charges on your record, but they also go on your driving record, give you points, could impact your driver’s license, and there are NO dismissal programs for traffic tickets.  Under the current law, there is also no way to expunge a traffic offense.
 
    The Reckless driving is misdemeanor, which carries 6 points, and a 90-day hard suspension of your driver’s license.  This charge has more serious driver’s license consequences than drunk driving, the same or more points, and is a misdemeanor. 
 
    The Careless Driving is a civil infraction, and 3 potential points on your license.  The Leaving the Scene depending on how it is categorized is either 0 or 6 points, and a criminal misdemeanor. 
 
    When confronted with multiple charges, I think back to my day’s as a prosecutor; we always charged as much as we could to create leverage to make deals.  If we only charged one thing, we lose the ability to work something out. 
 
    Also relevant to this case is Michael’s past driving record for speeding.  While by no means a serious flaw in Michael’s life, it’s strong evidence in the prosecutor’s eyes that Michael speeds, and may not be the most cautious driver.  For every speeding ticket you receive, you probably get away with it another 99 times. 
 
   We have to overcome the “asshole factor” with the prosecutor.  Although Michael is a hard-working professional, the prosecutor never gets to meet him, and will only judge him on his speeding record, and this case.  A prosecutor creates an image in their head based on their own driving interactions, and people who have upset them, or they’ve witnessed driving in dangerous ways around them. 
 
   Once Michael and I begin working together, we track down the police report, which is completely one sided, because the other driver reported the whole incident to the police and failed to mention their role if any in the incident.  Michael is labeled a dangerous driver who chased down the “victim” and was verbally abusive and put the other driver’s well-being in grave danger. 
 
   Michael certainly has the option of going to trial on all three charges, but there is great risk there.  There is no independent witness who can tell the “real story”; it’s the guy who was responsible and called the cops vs the guy who allegedly drove off.  In order to have any chance of contesting the case, Michael would likely need to testify, which opens up potential additional liability for testifying under oath.  It also opens up the door with the judge for potential harsher sentencing. 
 
    Simply put, if you work out a deal on most traffic offense, a judge is barely going to notice the case, assess some fines and may not even consider probation, and certainly not jail.  You make a judge sit through a trial, hear testimony, and all “dirty details”, and you’re convicted, you then get on the judge’s radar big-time. 
  
    I advise Michael that we’re going to keep all out options open, but let’s explore best case scenarios.  We make it a goal to work toward an outcome, which doesn’t lead to any criminal record, no loss of driver’s license, and no probation.  If we can walk away from this case with our driver’s license, no criminal record, and no court supervision, we agree that we likely would accept that outcome. 
 
  Unfortunately, we still need to overcome the one-sided facts, and my clients driving record.  Here is where we get proactive and change the perception of the case. 
I ask Michael to keep an open mind, and even if he disagrees with some of the police report and statements of the other driver, we need to acknowledge that the prosecutor is going to consider that to be the truth in working out any deal.  We need to isolate what happened, and work on presented a more in-depth, accurate and fair background on his past, present, and future. 
 
   I ask Michael for his resume, so I clearly understand his education and professional success.  I also ask him to meet with a counselor one-time to talk about what happened.  I understand from my experience, that my client is going to be more open with a professional therapist who is trained to ask the right questions.
 
   Along with this counseling session, I will request a report from the counselor to better help me understand what happened.  It turns out that Michael had a bad day at work, and the other driver triggered him.  He is remorseful for acting in that way and admits that he could have handled it better. 
 
   This is very helpful, because Michael is now in a better mindset, and understand what happened.  It helps me provide some context to the prosecutor that Michael isn’t a dangerous/irresponsible person, but he is currently dealing with stress at work, and is learning alternative methods to work on these issues such as mediation, exercise, and has breathing techniques to move past these feelings. It’s these little angles and insights that help move a prosecutor off their initial feelings on a case. 
 
   The fact my client cared enough to meet with a counselor, and I have this official report created on the session.  We also back this up with a driver improvement course approved by the State of Michigan, and a day of community of service within the court’s jurisdiction. 
 
   Michael has demonstrated how serious he is taking this isolated poor choice in his life.  He realizes that he should have handled it better; he is humbled by what happened and is ready to resolve the case with our goals in mind. 
 
    Because of Michael’s proactive efforts, the prosecutor agrees to an outcome of no criminal record and no suspension of his driver’s license.  I remind Michael not to blame the other driver before the court, accept the reduced outcome and be positive.  Because Michael follows my lead, the judge assesses a fine, and warns my client to drive safe, and not come back to his court.  Agreed! 

Here is a typical kind that I handle in Michigan for clients charged with MDOP. 
 
Name: Brian
Age: 45 years old
No prior criminal history
Profession: Teacher
 
Brian reaches out to me about a recent incident involving a neighbor.  Brian is a family man who has never had issues with the law but doesn’t get along with his next-door neighbor. 
 
He has two children and has been teaching at the same high school for 20 years.  He loves what he does professionally but is now charged with Malicious Destruction of Property.  He is worried about losing his job and having a criminal record due to an isolated poor choice.
 
Once Brian reaches out, I confirm his age, criminal history, his job, if he holds any licenses through the State of Michigan, such as a CPL, CDL or professional license.  We then get into the details of the case.
 
Brian has been frustrated that his neighbor has been leaving his gardening tools on the sidewalk.  Brian has tripped over these tools in the past and is worried that his kids can’t safely ride their bikes with tools laying around. 
 
When this happened in the past, he would either storm away furious, but leave the tools, or toss them back onto the neighbor’s property. This last time, he was so mad to see the tools on the sidewalk that he snapped one of the tools in half and tossed them onto the neighbor’s grass.  He went into his home and started making dinner for his family.
 
About an hour later, he got a knock at the door from the local police department.  The neighbor had witnessed what happened and showed the police video footage from his security camera.  Confronted with this information, Brian was honest and admitted to breaking the tool, but tried to give the backstory to the police; they did not care, issued Brian a ticket and left. 
 
So, this is quite common.  A client who respects the law, works hard, is a good family man, who is law abiding and generally gets along with everybody.  If you told any of Brian’s friends that he was charged with a crime, they would be shocked.  But this is how people get in trouble with the law. 
 
Someone comes home after a long day, is frustrated about something, feels justified in their actions, and acts out in an irrational manner, which at the time doesn’t seem like a big deal, but when they reflect back, they realize how short-sighted their decision was.  The neighbor appears to be wrong doer here; he leaves out his tools on a regular basis, and “deserved what happened”.  Morally, maybe, but the law charges Brian.
 
The police did not care to hear Brian’s story, and Brian is now left with his entire future in jeopardy.  Here is how we approach this case in a proactive fashion. 
 
We are dealing with facts where my client is 100 percent guilty of the offense.  We likely don’t have any viable defense here.  He purposely destroyed someone’s property without permission. 
 
The police had no interest in the background of the case, and a prosecutor may not care either.  How do we change this?
We need to take the focus off the five seconds of lapse in judgment here.  Brian’s future should not be determined by this flash in time.  That’s not equitable; nobody was injured, tools can be replaced, and Brian genuinely feels bad about what he did, and 100 percent regrets what he did.  The problem we run into is “words mean very little” when we go to court. 
 
As a former prosecutor I would review the case and know that Brian clearly broke the law, and there’s punishment for that.  I would also picture Brian as an angry person who does this all the time, I have no idea that he is a teacher, with a family and no prior history.  The prosecutor will never go outside the four corners of the police report without Brian and his attorney being proactive.
 
As Brian’s attorney, I recommend that he sit down and meet with a counselor.  Someone who is professionally trained in mental and emotional health, who can help Brian best understand what triggered his reaction.  It’s important that Brian fully understand what built up to his rash choice to break the neighbor’s tool. 
 
It’s also important that this third-party professional have a chance to meet Brian, and can put together a full report for our case.  A report that highlights his past, present and his future plans.  It carries more weight for this counselor to lay this out in an evaluation, vs me as his attorney.
 
To be able to say a counselor met with Brian, and here’s why it happened, but also the counselor has determined that stress from work, and a continued triggering by the neighbor’s behavior lead to this incident.  The counselor recommends that Brian come twice per month and continue to express his feelings, and work toward better conflict resolution. 
 
We have now made sense of the case for the prosecutor and provided the “other side”.  Nobody wants to hear from Brian, because it sounds like a bunch of excuses.  Having an attorney go in there and say all this is hot air too, but I’m not trained to evaluate Brian’s mental and emotional help and help him deal better with conflicts. 
 
Brian is no longer a “wild card”.  He is no longer someone unpredictable with an assumed history of violent acts of destroying property of others.  We have made his family, career and lack of past criminal history relevant, and provided context and a future plan to ensure this does not happen again.  We also realize that breaking the law should carry a punitive measure, and we certainly don’t want that to be jail or 24 months of court supervision.  There is no alcohol or drug use here, and we would like to avoid expensive testing.
 
We decide to do two days of proactive community service with a local charity as a way to give back and put positive vibes back into the community.  Breaking the neighbor’s property was a negative act, so we do our best to counteract that.
 
We of course fully agree to replace the gardening tool, even buy the neighbor a better version of the tool if he chooses. We are willing to write an apology letter and have no further contact with the neighbor if that is their desire as well. 
 
With all of these positive vibes in the case, and our willingness to make things right, the prosecutor is now in a position to justify working with us on an extraordinary outcome.
 
Because all courts, prosecutors and judges are different, I don’t want to get into any specific outcome, but based on what we did for Brian so far, I would be confident that the prosecutor would give us a path to potential dismissal, the ability to move forward without a criminal record, and for the judge to our proactive work without the need to impose jail, or any long-term court supervision.  We may be in a position where we continue our progress with the counselor, pay the gardening tool, and have no further incidents during a short period of time; if we achieve all of that, we have given Brian a true second chance of redemption.
 
Brian has learned a valuable life lesson that you need to think twice about your decisions, even if they feel justified, or you’ll get away with doing it.  Assume the worst could happen and learn how to deal with conflict going forward. 
 
We have no turned Brian’s case into a success.  Things happen for a reason, and without this run-in with the neighbor, something worse may have happened in the future without this intervention. 
 
Brian in the end created a manageable outcome for himself, because he was open to be being proactive, and took steps to address the underlying issues before being told to do so by a prosecutor and judge.  He realized that despite the stress, anxiety and worries during this case, that he is in a better position to go forward as an educator, family man, and member of the community. 

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.  

People have good intentions, but life is not easy.  There are going to be good and bad times with family, finances, jobs and overall life.  This might mean that at some point in your life you may have had some sort of traffic case, misdemeanor or felony at a court somewhere in Michigan. 

Either intentionally or in error, you simply didn't handle the case at the time.  Unfortunately the prosecutor and judge don't know why you didn't show up, even if you had a really good reason.  Somewhere in a courtroom days, weeks, months or years ago, your case was called and you weren't present.  The judge issued a warrant for your arrest, and it's been sitting in that status this entire time. 

You have even been hired for jobs, been pulled over and lived a relatively normal life with this warrant; this doesn't mean that it won't impact your life at some point.  Chances are if you're reading this right now, something has motivated you to try to clear up a warrant on a case.  Well that's just the first step.  

Hiring a lawyer to help you clear up a warrant may or may not involve you coming to court with the lawyer and explaining yourself to the judge with the help of your lawyer.  You need to convince the judge by appearing, they should cancel the warrant, and agree to let you eventually leave the courthouse, and trust you again.  

When you have a warrant, it usually means your case still needs to be handled in a pretrial stage, you missed sentencing or you violated probation or didn't pay some fines on a ticket.  Depending on the status of your case, you may be starting at square one or in the middle or end of the case.  People are not rewarded by fleeing for days, weeks, months and years, so be prepared to take it seriously and work closely with your attorney to figure out your options, and put this issue behind you.  

A lot of clients come to Michigan find themselves charged with a crime; the problem is they don't live in Michigan, and now find themselves needing to leave town and get back to their daily life.  Well, what are they going to do about the serious criminal charge in Michigan?

Sure, you can come back to Michigan, go to court a few times, spending money on travel, hotels etc, and that's if the judge even agrees to allow you to leave the State, or you can reach out to a lawyer and see what other options might be on the table.  

Most courts in Michigan will work with an attorney and client on resolving a case if a client resides outside of the State.  It does help to have an attorney that the court is familiar with, because they know the client had paid that lawyer money, and is motivated to resolve the case; why pay a lawyer money to just ignore the case? 

Depending on the case, you may be able to limit your appearances in Michigan to one or two, or may be able to avoid coming to Michigan; it's really case by case, and judge by judge, but having an experienced lawyer who is familiar with the prosecutor, judge and court staff puts you on the right path to putting this major headache behind you. 

I spend every single day of my life hearing from potential clients who find themselves on the wrong side of the law.  I rarely talk to a person who I would consider a "bad person" - 99.9 percent of the people who contact me are good people, with jobs, families and big goals in life.  

Some clients reach out and tell me they made a "mistake" - I quickly address that mindset, and help the client discover that they made a "choice" rather than a mistake.  I also tell them that it's OK if they did something they regret, and with the right approach, we are very likely able to successfully address the majority of their concerns, and help them learn from those choices. We are human, we are not always using out best judgment, and sometimes "A" happens to avoid "B" from happening, and we need to embrace what life brings us, even if life gets difficult or stressful - it's likely a short-term thing rather than long-term.  

Events in life happen for a reason - it may not seem like it in the moment, but choices and outcomes do happen for a reason.  I tend to think that a manageable situation happens before something that is not manageable happens at a later point.  The clearest example is a drunk driving case. 

Drunk driving outcomes (levels of severity) are based on "the other parties".  A person driving drunk will get away with the crime if they don't encounter a police officer; in fact more people drive drunk each day, and don't get caught then do get caught.  Everyone agrees drunk driving should be against the law, but when you're arrested, you tend to feel bad for yourself and wish you didn't get caught.  That's a very normal human reaction, and an isolated incident alone does not make you a bad person.  I want people to learn from it, and never do it again, rather than bury their heads in the sand and do it again.  

But let's add an element to the case and view the "it happened for a reason".  If you have no prior drunk driving offenses, or maybe one prior, a DUI arrest is still a misdemeanor.  Yes, there could be jail time, loss of license and a criminal conviction, but all of those can be negotiated, avoided or amended.  Your life goes on, and hopefully you never find yourself back in that situation again.  But what happens if this arrest never happened?

What if we add another vehicle or a pedestrian to the facts? What if you drive the same exact way, but now with added parts, your actions seriously injure someone else, yourself, or someone is killed? There is no going back from that, and there is nothing to negotiate or  fix - those are permanent outcomes.  

You made a bad choice, it's likely manageable if handled the right way, let's get to work.  

Whenever I work with a juvenile client, we expand the case.  A juvenile case is a lot more than the single incident and the charge; we are talking about a young man or woman who has not fully developed mentally, emotionally or physically.  Whatever the criminal charge is, it's most likely as a result of failing to distinguish between sound short vs long term decision making. 

Most young adults do understand that the actions they take in some form or another are against the law, and could end up getting them in trouble, but they actually don't quite comprehend the consequences, chances and long-term impact of these choices.  

If one of my clients is charged with possession of marijuana, it doesn't mean the young man or woman doesn't know that for them marijuana possession is illegal, but frankly "they don't care" - they'd rather focus on the short term thought of being cool, fitting in and enjoying the marijuana vs weighing the downside of "well what happens if I am caught with marijuana?" 

That may seem like an odd way to look at the problem as an adult, but that's exactly why the proper proactive plan and context must be placed on a juvenile case from day one.  The prosecutor and judge are going to be grown adults and unless they have significant experience with 1000's of juvenile cases they may just view the client the same way they might view an adult.  Failure to see the real issue will result in a marijuana case becoming just another marijuana case or a shoplifting case just being an another shoplifting case.

In reality these cases are just maturity and undeveloped decision making cases - they come in different forms and results, but the root of the issue is a common theme.  When I work with a juvenile client, we take a few steps back and focus on everyone going on in the client's world.  From school, family life, community engagement, job and future goals and plans.  

I hold my juvenile clients accountable beyond what a court may order, add extra layers of formal education, insight and experience based education to drive the message home and help push that client in the right direction.  Shifting the focus from purely short term choices to a focus on middle to long term choices.  It's always important to create a path for the prosecutor and judge to view of the client; hand them the directions to where you and the client are planning on going, and how we are going to get there.  I like to get the prosecutor and judge to see our vision and adopt our plan.  

Recently had a client get lectured by a judge for stealing when she had a good job, and the means to pay for the items; she was highly educated and successful .  The judge seemed like he wanted to send a message to this client that she has all the advantages in her favor, yet she still stole.  

Luckily for this client, she had been working on a proactive plan the entire time leading up to court and was able to spend some time reflecting on her poor choice and had a better understanding of why she did it.  Retail fraud in Michigan is rarely about lack of means, but rather an issue of mental and emotional instability that leads to good, hard working and responsible members of society making poor choices.  It's no different than someone who has an alcohol, drug or eating disorder.  Deep down you know your behavior is not "healthy" and is not a wise long-term choice to make, but in the short term and in the moment, it pushes you to put your good judgment aside and act on the urges and short-term feelings of satisfaction and want.  

Judges and prosecutors don't understand this, because I was a prosecutor in New York City and here in Michigan, and I used to view shoplifters as dishonest thieves with bad intentions - nothing can be further from the truth - it's not an excuse for their actions, but there's very good and reasonable explanations for what they do, and it's important for everyone involved in the case to understand this situation.  Words alone will not carry the day, but rather the actions you take to change the perception of your case.