As a former prosecutor, I was in the middle of 1000's of negotiations with defense attorneys both in New York City and in Michigan.   The majority of defense lawyers would just throw out requests without justification; many times if their client had no criminal record, their request would happen by default and procedure.  No record? Sure, let's make a deal on most charges. 

The challenging cases were the cases where the defendant has a prior criminal record and were not good fits for "dismissal programs".  No defense lawyer wants to sheepishly walk over to their client and say "no deal, you need to plead guilty".  Sure, a lot of benefit can come from having a lawyer for sentencing (but majority of defense lawyers have no idea how to properly leverage sentencing), but the main reason why someone is hired by a client is to "work something out".  When you can't, a client says WHY DID I HIRE YOUR SORRY ASS! 

Now, that client in that position has the right to go to a trial, but most of the time, more harm can be done by going to trial in this situation.   If you're guilty and the evidence is strong, you're just going to piss off the judge (judge will never and cannot admit this) by setting a trial where you probably should just step-up and take responsibility for your actions.  I would never tell a client they have to plead guilty in this situation, but should a client just go to trial on a case where the evidence is strong and they don't have a defense, or is there another way to handle a case like this? 

When my client has a criminal history and the prosecutor won't budge or can't budge due to lack of eligibility, it's time to get creative and rely on our proactive approach. 

I've written articles and books on being proactive, so I won't touch on it much here, but every one of my clients is working on 4-5 different things during the case to take responsibility from day one, and get themselves heading in the right direction; classes, counseling, community service, proactive testing etc.  

Here are three ways this type of case can play out:

1. No deal - client pleads as charged with no deal in place and moves to sentencing.
2. No deal - client goes to trial on a strong case, is found guilty, is sentenced after jamming the court up.
3. No deal - call a timeout, maybe set for a bench trial, have client keep up proactive work for another month

Now deal #3 works because it's a compromise with the prosecutor.  You're not setting for a jury trial, hauling in people from the community, forcing a prosecutor to prepare for trial and making the court invest an entire day for a trial that is not going to go in your favor. 

By setting it for bench trial, you're asking a prosecutor and judge to sprint down the road vs running a marathon.  Maybe you tell the prosecutor that if all the witnesses show, your client will plead guilty, but ask the prosecutor to keep an open mind with your request and there is more good work to be done by the client.   

By not kicking down the prosecutor's door on a jury trial that is just silly to set, but still exercising your client's right to a trial, this is a happy medium of sorts.  My client continues their proactive work for another month then when you return with the prosecutor, you were that reasonable person who is trying to work with everyone, and there's no running for what happened. 

I tell prosecutors on a regular basis, YES my client is super guilty - the client is comfortable with that, because why run from something? There's an opportunity to work on yourself and use this as a learning experience.  Once we get over that hurdle of "fighting" guilt vs innocence, we can rely on solid relationships, common sense and merit.  And in this scenario, we rely on time and continued progress.  Once a guilty client gets over the hump of feeling the need to "defend themselves" we can get to work on great outcomes.  Some cases have real defenses and constitutional issues to explore, but the majority of cases do not.   

Using this strategy, I have turned "no deal" into "well, your client has done X, Y and Z, and well it seems reasonable, OK, I will agree" 

In no part of this scenario did I have to pull my sword - I knew had nothing to fight over in the evidence, but I had common sense, merit and time on my side.  I believe all prosecutors have a reasonable side to them, and I rely on my experience as a prosecutor to bring that out of them.  My client needs to back up my requests with an impressive track record of proactive accomplishments, but if they do, I have the tools needed to be creative.  

I work with many clients each year on cases resulting from incidents at DTW (Metro Detroit Airport).  People believe that crimes charged at the airport may result in federal charges, but most of these cases are handled at the Romulus 34th District Court a few miles away from the airport. 

I've worked with clients who have had items confiscated by TSA at the checkpoint, clients who have been accused of stealing from a store in the airport, fighting, damaging property, even clients who have entered the wrong door/breached security, accused of improperly storing animals and not having the proper paperwork for their guide dogs.  The stories I hear and the charges I see even surprise me on some days, but each and every one of these type of cases are manageable with the right approach.  

Patience is limited when it comes to airport personnel as their main focus is protecting the sky from passengers trying to board plans with dangerous items.  It makes sense that they don't have the time to sort things out, and just decide to write the ticket and move onto the next issue.  It's very likely the person will be allowed to board their plane and travel despite the incident, but a criminal charge is sent to the 34th District Court.  

I am contacted by clients all of the time for "airport cases".  Here is how things usually play out if the client is prepared to work hard and earn an exceptional result.

1. Client reaches out to me and explains the situation (typically does not live in Michigan)

2. I ask the client to send me any paperwork provided to them at the airport or sent in the mail

3. We create a proactive plan for my client to begin in their home state, which helps me  showcase my client as an otherwise responsible and hardworking person who happened to find themselves in this isolated situation at the airport.  We don't want the client to be "judged" solely on this airport case.  

4. I reach out to the court, prosecutor and police to inform them that I am representing the client, and we work to have the client excused from returning to Michigan for court, which saves the client the cost of airline tickets, hotel, transportation, time lost at work and family, and stress. 

5. I attend court for the client and work with the prosecutor and judge on an outcome which reaches my client's goal, which is usually a chance to keep a criminal charge off my client's record.  We are usually able to do this without my client ever having to return to Michigan for court.  

If you or someone in your life is charged with a criminal offense from Metro Detroit Airport, give me a call at 248-924-9458 or send me an email: jonathan@michiganlawgrad.com 

Today is a big day in Ann Arbor as two of the most historic brands square off at The Big House in Ann Arbor. 
Liverpool will face off against Manchester United in the International Champions Cup

The stadium will be at capacity, and everyone will enjoy a great day, but some fans will end up on the wrong side of the law.  I work with hundreds of clients who are charged with various criminal offenses in the fall during Michigan Football games, and those same tickets will be handed out today.

The most common offenses for today's game will be the following:

- Minor in Possession
- Open Container 
- Public Intoxication
- Entering the stadium with alcohol
- Urinating in Public
- Disorderly conduct
- Fake ID 

All of the above offenses are criminal misdemeanors with the exception of Minor in Possession, but even an MIP could end up suspending your driver's license. 

If you or someone you know is ticketed with one of these offenses, do not take it lightly.  Don't think because you can go pay a fine and be done with it, that the consequences won't be felt in the future.  You could end up with a criminal record this afternoon, which would be a negative turning point in your life.  

When ticketed, the ticket will say you must contact the court within 10 or 14 day; you will then need to go to the courthouse and be arraigned and have a pretrial set for you.  This may not be bad if you actually live in Ann Arbor, but 95 percent of the fans for the game are not from the area, and could be stuck paying for flights, hotels and missing work or school just to return to Ann Arbor to deal with the ticket.  

I encourage you to reach out to me to discuss your ticket as these type of offenses can be resolved (potentially without a criminal record) and we could potentially have you excused from evening attending court.  

I wrote the Ann Arbor Criminal Defense Playbook for a reason.  I'm at the 15th District Court every week, helping clients just like you with their criminal cases.  

Call Me: 248-924-9458
Email Me: jonathan@michiganlawgrad.com

Since the State of Michigan turned an MIP into a civil infraction, I have had far too many calls from out of state clients who plead responsible to this new civil infraction here in Michigan, only to suffer major consequences back in their home State.

Judges, magistrates, prosecutors and police are telling families here in Michigan "oh no big deal, this isn't a crime, pay the ticket and be done with it" - sure that might be true if the person charged lives in Michigan, but other states don't quite view Michigan's change in law as anything that changes the way they view the offense.

I've had multiple clients contact me that their driver's license has been suspended for a full year due to a civil infraction here in Michigan.  That frankly was not the intent here in Michigan when the decision was made to decriminalize the offense, but this change has been a worse result for these out-of-state clients.

In the old days, the client would plead guilty to the original misdemeanor, but go on a non-public probation where the offense is not sent to the Secretary of State, but now that the civil infraction is public; it is being sent to the Secretary of State and those other states are just suspending licenses left and right.

Clients and their families reach out to me for help. Is this something we can fix? The answer is probably.

I like to believe that judges, magistrates, prosecutors and police like to apply common sense and want the law to work for people.  I have been able to reach out to these parties and explain this "extra consequence" and these parties have been open to working with us to reverse the result.

Step one is withdrawing the original outcome.  Resetting the case back to square one.  We then work with the prosecutor to resolve the case with something that is not an MIP in name.  We still pay the fine, we may even do some extra community service or an alcohol class on our own as "currency" to make a deal, but the end result is then sent back to the home state and the license suspension is cleared.  

If you or someone in your life is struggling with this exact outcome, call me at 248-924-9458 or email me at jonathan@michiganlawgrad.com 

As a former prosecutor in New York City and Michigan, I had very different experiences in these roles.  In New York City, defendants would typically receive quick reductions down to non-misdemeanors, with a very limited if any license suspension and rarely did a first offender receive any probation.  In Michigan, drunk driving cases were handled a lot differently.  

In Michigan, a drunk driving case can really vary depending upon what police department makes the arrest, because it determines what courthouse the case is heard, an who the prosecutor on the case is going to be.  Some prosecutors are quick to reduce Operating While Intoxicated or Super Drunk charges down to Impaired Driving, but rarely anything below this offer.  Judges typically put people on at least 12 months of probation, and some courts do send first offenders to jail.  

Prosecutors typically view DUI cases as serious charges, and pretty straight forward to prosecute.  Prosecutors look for evidence of driving the car then the chemical test result being over the legal limit.  If they have evidence of both of those, they are confident in their case, and typically hold firm in standard offers to the defendant.  

Some prosecutors have "policies" and will not make offers or will play hard ball day one, inviting a trial if you don't like the offer.  The majority of prosecutors don't want to set DUI's for trial and make themselves much busier; they have large caseloads and want to resolve cases.  

Most prosecutors will give some benefit of the doubt to someone with no prior DUI convictions, but will look harshly upon accidents, poor driving, an exceptionally high BAC number, and any funny business in terms of acting poorly toward the police officers.  If the case is a clean traffic stop, a relatively common BAC number, there's likely to be an opening offer that might be appealing to some defendants.  ​

​As a criminal defense attorney I don't want to settle for the default/"what everyone else gets" result.  I want to create more options for my client, and we do that by creating leverage both outside and inside the courtroom.  

We create leverage outside of the courtroom by being proactive and changing the perception of the case from day one.  When the case begins depending on your record, the prosecutor and judge will view you as a dangerous drunk driver who is lucky to not have killed someone. 

As a criminal defense lawyer I anticipate the perception of my audience and look to expand the information pool with positive information about my client's past, present and future.  When I say information, I don't just mean telling the prosecutor my client has a good job, a family and he's a nice guy.  The information comes from real action, which begins with a substance abuse evaluation with a follow-up on recommendations.  

The majority of my DUI clients are not frequent drinkers, they typically don't have more than 2-3 drinks, and have no criminal record.  They have good jobs, pay their taxes, respect the law, and agree that drunk driving is not a good thing, and there should be punishment for the crime.  They find themselves facing a DUI charge unexpectedly due to some variable changing on the day of the offense. 

It usually stems from not planning ahead, because my client has no intention of drinking too much.  The night begins without plans in place, and the environment, surroundings, people involved are different than expected, and my client drinks more than usual, and they are unfamiliar with this situation, and don't put the breaks on.  The drinks keep flowing and those drinks impact positive decisions.  The client's decisions are no longer completely their own and they trick themselves into believing "risking it" is a good trade off to leaving a car in a parking lot, missing an early doctors appointment or their kids little league game.  They make the decision to drive, because the chances are more likely they get home ok without incident. 

They fail to weigh the consequences, even if smaller and less likely - what if I get caught? Worse, what if I kill someone?   

If we can make this situation make sense to a prosecutor and judge, we're going to get a lot further along in our case.  Essentially we can isolate this poor choice and get away from any perception that this is typical behavior, an addiction, something we can't control.  If we can pinpoint how we got there and work on that, a prosecutor and judge will view my client in a different light.  

Overcoming the "dangerous drunk driver" perception starts with identifying the true issue, demonstrating that you're taking it seriously, and ready and willing to work on it.  With the evaluation comes a recommendation, which is usually counseling, alcohol education, Impact Weekend, AA attendance.  We do proactive community service, MADD panels and most importantly daily alcohol testing.  Yes, we voluntarily begin alcohol testing, because we need to show that alcohol is not a friend, and it's not something we rely on, we're dependent on, and rather than say "I learned a lot, I don't even a want to drink", we go ahead and show it.  

This is how we create leverage outside of the courtroom.  I've used this leverage to turn DUI cases into non-DUI cases, probation cases into non-probation cases, and saved people's career, family and possibly their life.  Prosecutor's don't like to go outside of the box, but if they do, it will require currency to justify their decision.  

Being proactive outside of the courtroom is going to lead to better deals with the prosecutor, and more favorable sentences from probation and the judge, but the best outcomes also have leverage inside of the courtroom, which means we need to find something within the facts of the case to push the buttons of the prosecutor a bit - create some sort of holes or uncertainly in the case. 

As a defense lawyer I view DUI cases within three windows:

1. The traffic stop
2. The arrest
3. Chemical tests

Traffic stop requires reasonable suspicion, an arrest require probable cause, and chemical tests must be done correctly to be admissible against my client.  A full review of reports, videos, audio, and other evidence will hopefully provide us something to work with in terms of creating leverage.  This could mean leverage for pretrial motion or at trial. 

Defeating the stop could mean everything after the stop is inadmissible.  Showing the arrest was not based on probable cause could suppress any field sobriety, statements, and chemical tests.  Suppressing the blood or breath test could leave a prosecutor quite thin on evidence for trial. 

The goal is not necessarily to file the motion or set for trial, because that runs the risk of losing control of the outcome or losing a plea offer, but having the leverage to proceed with either option - something more than a blanket "I'll set for motion or trial" - that's a bluff and prosecutors do not bite on those.  You need to show them the leverage in a reasonable way - don't pull out your sword, just talk about the sword a bit.     

Win with consensus,  work toward a compromise that works for everyone.  I've had prosecutors offer disorderly conduct and dismiss drunk driving because it was the right outcome, but I needed both the leverage within the evidence of the case, and my client needed to back it up outside of the courtroom.  

As a former prosecutor I used to think field sobriety tests were a golden ticket to conviction.   Along with the chemical tests, I had my police officer administering a number of super reliable tests and the results were typically favorable to prosecution.  I would look at the police room and boom, boom, boom, I had the defendant sinking his/her own case.  It wasn't until a few skilled defense lawyers began taking apart these tests that I soon realized they were not as reliable as I once thought.  

In Michigan a witness, typically a police officer is allowed to testify to Standardized Field Sobriety Tests  (SFST) results and how they relate to impairment if the witness is qualified by knowledge, skill, experience, training, or education.  The law specifically states that the Horizontal Gaze Nystagmus (HGN) is admissible under this provision by an officer trained in how to perform the test. 

In Michigan “Standardized Field Sobriety Test” means one of the standardized tests validated by the National Highway Traffic Safety Administration (NHTSA). A field sobriety test is considered a SFST under this section if it is administered in substantial compliance with the standards prescribed by NHTSA.

In simple terms if the police officer is qualified and follows the rules then the evidence can be introduced to the trier of fact or at a evidence hearing.  The problem for many people charged is their attorney simply reads the police report and doesn't look into if these tests were done correctly.  A cop is NOT going to say they did them wrong in the report - it takes watching the video and listening to the instructions to confirm compliance.  

Based on my experience as a prosecutor, I know that the prosecutor has not watched the video or firmed up these tests; they just assume they are done correctly.  This means if I look further into the issue and spot problems, they WILL NOT be prepared to respond at a hearing or trial, and I have a good shot at making a statement in front of a jury or judge and hopefully discredit these tests.  

According to a State of Michigan law enforcement memo, the SFSTs are designed as divided attention or psychophysical tests which involve requiring the subject to concentrate on both mental and physical tasks at the same time.

These tests are designed to mimic the different abilities and tasks involved in operating a motor vehicle.  These include information processing, short-term memory, judgment and decision making, balance, steady and sure reactions, clear vision, small muscle control and coordination of limbs.

As a criminal attorney, I am only looking for the BIG THREE: HGN, Walk & Turn and One Leg Stand, because any other test is not standardized and a fiction of the officer's imagination.  An officer can just as easily as my client to recite the Detroit Tigers lineup as he can the alphabet - I am going to discredit anything outside of the BIG THREE right away.  

According to various studies, the HGN is only 77 percent accurate, the Walk and Turn is 68 percent accurate and the One Leg Stand is only 65 percent accurate.  

As a prosecutor, I would quickly glance at the officer's narrative and just assume "LOOKS GOOD" and move on.  As a criminal defense lawyer, I dig into the details and test the officer narrative to the video/audio.  Even a small difference between report and video could mean putting the officer in a position of trying to make his report/narrative more favorable and really discredit the whole process.  We get the benefit of the doubt on the things we can't see and hear if what we can see and hear is not 100 percent accurate, and it's so important to make a big stink about it, because a jury doesn't know any better. 

The first test is always the most fishy - the HGN, because there is no video or audio of what the officer is actually observing on my client since it's his eyes - I am looking for proper or improper instructions and if I can see how the officer is actually administering the tests.  If he does it by the book, I am hoping that his credibility is put into question on another test, which I can see better such as the one leg stand or walk & turn, so I can argue that it simply taints all the tests.  

According to the officer training manual here are the proper instructions:
​
1)Please remove your glasses (if worn).
2)Put your feet together, hands at your side. Keep your head still and follow this stimulus with your eyes only. 3)Keep looking at the stimulus until the test is over.
4)Do not move your head.
5)Do you understand the instructions?

The officer will then position the stimulus 12-15 inches from the suspect’s nose and slightly above eye level. He or she will first check to see if both pupils are equal in size (if they aren’t, this may indicate a head injury). The officer will then make sure the eyes are able to track together (called equal tracking) across the suspect’s entire field of vision.

Here the officer is looking to see if the eyes track the stimulus together or if one eye lags behind the other (this would indicate medical disorder, injury or blindness). After this is done, the officer continues with the test as listed below:

The officer is now looking for the three clues in each eye, so 6 total clues. 

1) The Lack of Smooth Pursuit –the eyes can be observed to jerk or bounce as they follow a smoothly moving stimulus, such as a finger or penlight. The eyes of an unimpaired person will follow smoothly, i.e., a windshield wiper gliding across a wet windshield; whereas the eyes of an impaired person will follow in a jerking manner, i.e., a windshield wiper moving across a dry windshield.

​a.Instruct the subject to hold their head still and to follow the stimulus with their eyes only. 
b.Move the stimulus smoothly, all the way to the subject’s left, then all the way to the right, then back again all the way to the left, then once again all the way back to the right.
c.While the eye is moving, examine it for evidence of a lack of smooth pursuit. 
d.Each eye counts as one clue for scoring purposes.  

2) Distinct and Sustained Nystagmus at Maximum Deviation –distinct and sustained nystagmus is observed when the eye is held at maximum deviation for a minimum of four seconds. People’s eyes exhibit a slight jerking at maximum deviation even when unimpaired, but this jerking will not last more than a few seconds.  In alcohol-impaired individuals, the jerking is larger, more pronounced, sustained for more than four seconds, and easily observable. Nystagmus at maximum deviation is observed when the eye is moved to the point where there is no longer any white left in the side of the eye.  The nystagmus can be observed to act in a back and forth “popping” motion.

​a.Position the stimulus as before.
b.Move the stimulus all the way to the subject’s left side and hold it there so that the subject’s eye is turned as far to the side as possible.
c.Hold the eye at that position for a minimum of 4 seconds to check carefully for any jerking that may be present.  d.Then move the stimulus all the way to the subject’s right side and hold it there for a minimum of 4 seconds checking again for any jerking that may be present. 
e.Repeat both steps b and d (check each eye twice).
f.A definite, strong jerking must be seen; a slightly or barely visible tremor is not sufficient enough to count as a clue. 
g.Each eye counts as one clue for scoring purposes. 

3) Onset of Nystagmus Prior to 45 Degrees –the point at which the officer first observes nystagmus or jerkingin the eye. If the jerking begins prior to 45 degrees (typically when the stimulus is aligned with the subject’s shoulder),recent studies have shown that the jerking corresponds with a 0.08-plus BAC. The higher the degree of impairment, the sooner the nystagmus will be observable. 
​
a.Position the stimulus as before.
b.Slowly move the stimulus to the subject’s left side, carefully watching the eye for the first sign of jerking.  c.When you think that you see the eye jerk, stop moving the stimulus and hold it still.
d.Make sure to verify that the eye is in fact jerking. 
e.Once you have established that you have located the point of onset, estimate the angle.
f.Repeat this procedure on the subject’s right eye.
​g.Repeat both steps b and f (check each eye twice).h.Each eye counts as one clue for scoring purposes. 

Next up is the Walk and Turn - officer is looking for 8 clues.  Here are the instructions, which I am looking for compliance or non-compliance.  

1)Put your left foot on the line, then your right foot on the line ahead of your left. Keep your arms at your side.  (Demonstrate)
2)Do not start until I tell you to do so.
3)Do you understand? (Officer must receive an affirmative response)
4)When I tell you to begin, take heel-to-toe steps on the line. (Demonstrate) To turn around, keep one foot on the line and return nine steps.
5)When you turn on the ninth step, keep your front foot on the line and turn taking several small steps with the other foot. (Demonstrate) Take heel-to-toe steps back down the line.
6)Keep your arms at your side at all times, watch your feet, and count each step out loud.  Once walking begins, do not stop until you’ve completed the test.
7)Do you understand the instructions?
8)You may begin.
9)If suspect doesn’t understand some part of the instructions, officer should repeat only that part which suspect does not understand.

Here are the 8 clues the officer is looking for during the test.

​1)Can’t balance during instructions
2)Starts too soon Walking Stage clues:
3)Stops while walking
4)Doesn’t touch heel-to-toe
5)Steps off line
6)Uses arms for balance
7)Loses balance on turn or turns incorrectly
8)Takes the wrong number of steps

Officer will be quick to point out which clues he observed, but it's important to point out what he didn't observe. Let's say the officer lists 3-4 of them, well that means you didn't see the other 4-5, which means something.  

Finally, we have the one-leg-stand - here are the proper instructions:

1)Stand with your feet together and your arms at your side. (Demonstrate)
2)Maintain position until told otherwise.
3)When I tell you to, I want you to raise one leg (either leg) approximately six inches off the ground, foot pointed out, both legs straight, and look at the elevated foot. Count out loud in the following manner: 1001, 1002, 1003, and so on, until told to stop.
4)Do you understand the instructions?
5)You may begin the test.

The timing is very critical during this test. The original research has shown that many impaired subjects are able to stand on one leg for up to 25 seconds but that few can do so for 30 seconds or more. 

The One-Leg-Stand is divided into two phases:

1) Instruction Stage and 2) Balance and Counting Stage.

During the Instruction Stage, the subject must stand with their feet together, keep their arms at their sides, and listen to the instructions.

During the Balance and Counting Stage, the subject must perform and complete the exercise as instructed.

There are 4 clues that an officer is looking for during the OLS exercise.

They are as follows:

1)Sways while balancing
2)Uses arms for balance
3)Hops
4)Puts foot down

Same as the walk and turn, if the officer points out clues he observed, it is important to point out what he didn't see.  

These field sobriety tests are so ripe for attack by a defense attorney, but it takes some extra work.  Field sobriety test issues can be used to challenge an arrest or can be used to help argue a close call BAC case.  A chemical test result can be presumed to be what the driver would have registered while driving, but that assumption is not required.  If I have a 0.09 BAC an hour later, but the field sobriety tests are actually pretty good, I can argue the deviation, plus timing, plus rising blood that my client wasn't above the limit while driving.  I can also use the field sobriety tests to challenge an arrest, especially if there is no PBT result over the limit.  

The possibilities are endless, you just need to be prepared to look deeper into the issue.  
​

As a former DUI prosecutor, I worked on 1000's of cases; the main piece of evidence was typically a chemical test, which was either a blood draw or a breath sample.  In Michigan, the breath sample is collected with the Datamaster machine.  Under Michigan law, the trier of fact is allowed to assume that the blood alcohol content result collected via chemical test was the same as when the driver was operating the vehicle.  

As a former prosecutor my favorite lines were "over the legal limit" "more than double the legal limit" "he/she failed the test".  I would push and push that chemical test being over the legal limit - what else was there to consider, the person was guilty! Anything that silly defense lawyer tells you is just smoke and mirrors - there was a test, and they failed it, end of story, find them guilty. 

Many prosecutors try to over-complicate the issue and act as if they need to defend the chemical test number - the more complicated you make it, the less a jury focuses on the "failed test" concept.  As a prosecutor, I did the very opposite - make it as simple as possible - juries don't want to think too much, and if you spend so much time defending something, they lose confidence in the issue and question the reliability of the evidence. 

As a former prosecutor I had a different view of the blood vs breath results.  In my experience, a blood test is considered to be more reliable by the "criminal law community", because well it's tested at the Michigan State Police lab, and there's supposedly less variables that can impact the result, because it is coming directly from your body.  The person testifying about the result (lab tech) is also supposedly more knowledgeable  and a better witness than a police officer who does the Datamaster machine. 

Both prosecutors and defense lawyers tend to give the blood result more weight and if it's over the legal limit for an OWI (0.08) or Super Drunk (0.17) then there's less incentive to challenge it.   I completely disagree with this perception, and bring this mindset to my criminal defense practice.  Here's why:

1. In Michigan, let's say the police stop my client at 2 am.  A Datamaster result would usually happen within the hour of this traffic stop, and makes for a better argument when you're telling a jury to believe the BAC level is the same as when the person was driving the car.  A blood test in contrast happens hours later at the hospital, or you have to wait for someone to come to the jail to draw the blood.  Typically double or triple the time goes by - a good defense lawyer will jump on that argument.  

2. Once the blood is drawn, it's supposed to be sealed in a tube for testing, but that sealed tube sits around and is transported to the lab over the course of a few days.  Just picture that sealed blood sample bouncing around the mail truck as it heads to Lansing in an uncontrolled environment.    Throw in freezing temperatures of winter or 95 degrees in August, and that sample is compromised.  The best is when the lab tech brags about the sample being stored in a controlled environment prior to testing (but after bouncing around the mail truck in 95 degree weather for 3 days) - all I have to say is REASONABLE DOUBT.  

3.  It's a pain to get the lab tech to come to court to testify and limits your flexibility to set the case for trial.  It's so much easier to have the police officer available to come in and testify.  

​Sure a Datamaster has it's faults, but cops are trained not to know enough to be challenged.  They have a procedure and if they follow it, that's it.  They are not required to know how the machine works or why it does X, Y and Z but rather to follow steps.  If the jury likes the cop and they believe he followed the steps then they will probably buy into the result and not find reasonable doubt.  There's also usually two tests (not required), but the second result can confirm the first result vs a single blood test result.

As a criminal defense lawyer, I find that prosecutors are more confident in the blood draw, but at trial those are easier to challenge.  And the goal is not to show the test is wrong, faulty or an error, but rather just raise enough doubt to get a not-guilty verdict, and the door is wide open on the blood test.  

With the Datamaster, I am looking for numbers close to the limits of 0.08 and 0.17 as there are built in margins of error listed in the training manual for the operator.  I am also looking for a police officer who is going to be chatty and give me open windows.  Officers are trained not to discuss how the machine works or WHAT IF's but human nature makes most officers answer questions and be open to possibilities.  If the officer answers YES IT"S POSSIBLE to enough questions then that's my reasonable doubt.  After all it's a machine and the person pressing the buttons doesn't know how it works, why should be believe the result? 

As a former prosecutor I worked on 1000's of drunk driving cases, and one of the main concerns of the person charges was their ability to drive.  A person doesn't realize how important the ability to drive actually is until they are no longer able to do so.  It means you can't drive to work, school, drive your kids or family around, go grocery shopping, leave the house to eat or entertainment.  Losing your license can be a huge burden on a spouse or friends and family, and I have seen relationships ruined because someone can't drive their car.  

One role that a prosecutor has in Michigan is on a circuit court hardship appeal.  If someone violates the implied consent law for refusing a chemical test and that ruling is upheld on appeal, a petitioner (the defendant) has the option to file a hardship appeal with the circuit court on the basis of hardship if this is there first implied consent issue.  Some counties will have a representative from the Attorney General's Office as a representative for the Michigan Secretary of State, while others will actually have the county prosecutor act as the representative.  

The court is ultimately looking for a real hardship tied into your ability to work, go to school, perform obligations of your probation and other listed issues.  They also want to be sure that public transportation or reasonable alternative accommodations are not available to the petitioner.  If you lived down the block from where you work, you could not claim a legitimate hardship to get to and from work as a basis of receiving the license.  

Many people walk into court and simply say "here is where I work, and here is where I live, I need to drive".  That is lazy and not the most effective way to convince both a judge and prosecutor to OVERTURN a license suspension.  Think about what that means - you violated the law (implied consent law), your license was suspended because of it, and now you're asking for that decision to be overturned, and all you're going to do is show where you work and where you live?  

As a former prosecutor I witnessed too many of these situations go wrong, because people did not over-prepare and take the process as seriously as they should from day one.  As a proactive criminal defense attorney, we may be shifting gears from our criminal case to the circuit court, but we can use all of our proactive accomplishments for these stage as well.

The most important parts will be the substance abuse evaluation and any subsequent following of that recommendation along with the daily alcohol testing.   Neither is required, but the substance abuse evaluation is expected, and daily alcohol testing is usually the cherry on top of receiving the hardship license. 

I can't tell you how many times I've been out in the hallway with the prosecutor/AG representative with another attorney, and all they have is "well it's his first implied consent, and he works 20 miles from where he lives" - I sometimes wish I was the prosecutor again so I could tell that defense attorney - "well he shouldn't have refused the chemical test, I'm not changing the suspension for you" - that's just lazy lawyering - the client could have done the same thing in court.  

I have my substance abuse evaluation ready, AA meeting logs, alcohol insight class completion certificate, counseling letters and printout of our daily alcohol testing.  We're showing the prosecutor that from day one we were open about learning from the situation, followed the recommendation of the health care professional, and you should grant this hardship, because my client HAS NOT BEEN DRINKING and here is proof of that.  Not all petitioners are being alcohol tested or even on probation with a court so there's concerns about handing someone a license who is actively drinking - what better than to show proof that my client is not drinking? 

I always believe in building consensus with a prosecutor, because I learned if you want to go toe to toe with a prosecutor, they will prevail more than they are defeated, because a judge is naturally more familiar with that person and it's the more conservative thing to do.  Handing my client the ability to drive soon after a DUI incident is risky, and I acknowledge that - that is why my clients work their butts off to show they should be granted the opportunity to earn back the trust of the prosecutor, judge and community.  

If I can get the prosecutor to sign a stipulated order for a hardship license in the hallway and we can walk into the courtroom and BOTH tell the judge we want petitioner to receive a hardship license, what's the judge going to do? Say no? Probably not.  Some judges will still have concerns, especially newer judges or judges who are not that familiar with these type of proceedings, but I use the same proactive tools with the judge to get my client over the hump, and get them back on the road. 

You may not drive until the beginning date shown on the Sobriety Court restricted license that you will receive in the mail. The law requires you to serve a minimum of 45 days without a license. The 45-day minimum waiting period starts on the beginning date of the suspension or denial/revocation shown on your Order of Action and driving record.

The Sobriety Court will notify the Secretary of State directly. If you are eligible and your license has not expired, the Secretary of State will mail the Sobriety Court restricted license to you. You will not need to provide an additional documentation to the Secretary of State.

​However, if your license is expired, you will receive a letter authorizing your renewal at a Secretary of
State office. After you have completed the renewal process, the Secretary of State will mail the Sobriety Court restricted license to you.

A Sobriety Court determines whether you are eligible and accepts you into their Sobriety Court program. You may be eligible if you were arrested for an alcohol-related offense on or after Jan 1, 2011, have a prior alcohol conviction(s), and are approved by a Sobriety Court.

As a former prosecutor my main goal was to prosecute the case; marching orders were to charge and convict; the defendant was a name and a charge with no backstory.  It was up to the criminal defense attorney to provide additional information for consideration, but this rarely happened.  If someone plead guilty to drunk driving, I would move onto the next case unless there was something unique to address at sentencing.  

In Michigan, if convicted of a second drunk driving offense within 7 years, the defendant loses his/her ability to drive for a full year, there is also a mandatory five days jail with most judges sentencing to more than those five days.  One possibility to work around some of those sanctions is by entering a sobriety court. 

Not all courts have a sobriety court, and different courts have different qualifications to enter the court.  The State of Michigan must certify that court in order for the possibility of receiving a hardship license - there are some courts that call themselves a sobriety court, but they are not certified by the State of Michigan.  

As a former prosecutor I would have no issue with a defendant entering sobriety court as it was an indication that the person was taking responsibility for their actions and seeking help.  Sure they are probably motivated by potentially receiving a license and maybe avoiding jail, but I left that up to the judge, and they would be required to have an ignition interlock on their car to receive this hardship license.  

Depending on the court, it may be a very straight forward process - if you offend and live in the same jurisdiction and there's a sobriety court then great you're probably going to get into the sobriety court.  What happens when the court you offend in does not have a sobriety court, or they do have a court, but they say you must also live there in order to gain the benefit of the court?  Well you can move, but is that realistic? Probably not.  

This is where its necessary to step outside of the box and earn a special outcome.  If the court itself is not willing to take you into their sobriety court or they don't have one, it's time to go shopping for another sobriety court.  Now, why would some other court take you? That doesn't make a lot of sense, and that is exactly why we're proactive from day one and demonstrating the proper commitment, work ethic and mindset to be an excellent candidate for entry.  There's going to be a sobriety court out there who appreciates the work product and will consider your entry into their court, if not only because you will be an excellent example - a superstar for others to aspire to, and an example to point to for the judge.

Sobriety court is no different than a sports team.  The judge is the coach or manager and he has his players (the sobriety court participants).  Everyone knows what everyone is up to and individual performance impacts the team has a whole and their teammates.  If most are not complying or following the rules then it sets a bad example for others. but if it's the opposite, you're going to inspire the other teammates to go the extra mile.  When the safety of the roads of Michigan and the population as a whole are depending on the sobriety court to help people no re-offend, having a good environment is extremely important. 

I am proud that many of my clients have been accepted into other sobriety courts as a transfer case due to their proactive steps and impressive track record.  They went from losing their license and mandatory jail to having a license and the jail being suspended due to entry into the sobriety court, because of their hard work. 

​

As a former prosecutor in New York City and Michigan, I worked on many embezzlement cases.  In Michigan, embezzlement is defined as someone in control of the money or property of another person or of a business, and are accused of converting the money for your own use or fraudulently disposing of the money.

This is different than larceny, retail fraud, home invasion and other theft crimes because embezzlement means you're legally possessing or controlling the money at the time, but you commit a crime when you convert the money to your own benefit.  Retail fraud is shopping at Kohl's and taking a shirt without paying for it; embezzlement is working at Kohl's and creating gift cards for yourself or stealing money from the register.  

In Michigan, embezzlement can either me a misdemeanor or a felony - the differing factor is the amount of value converted for your own good.  Here are the penalties 

​Embezzlement of money or property valued at less that $200 (misdemeanor): Jail time of up to 93 days and a fine of either $500 or 3 times the value of the money or property, whichever is greater.

Embezzlement of money or property valued at between $200 and $1,000, or less than $200 with a previous embezzlement conviction, or under $200 embezzled from a nonprofit or charitable organization (misdemeanor): Jail time of up to 1 year and a fine of either $1,000, or 3 times the value of the money or property, whichever is greater.

Embezzlement of money or property valued at between $1,000 and $20,000, or between $200 and $1,000 along with a previous conviction, or between $200 and $1,000 embezzled from a nonprofit or charitable organization (felony): Jail time of up to 5 years and a fine of up to $10,000, or 3 times the value of the money or property, whichever is greater.

Embezzlement of money or property valued at between $20,000 and $50,000, or between $1,000 and $20,000 along with a previous conviction, or between $1,000 and $20,000 embezzled from a nonprofit or charitable organization (felony): Jail time of up to 10 years and a fine of $15,000 or 3 times the value of the money or property, whichever is greater.

Embezzlement of money or property valued at between $50,000 and $100,000 (felony): Jail time of up to 15 years and a fine of $25,000 or 3 times the value of the money or property, whichever is greater.

Embezzlement of money or property valued at more than $100,000 (felony): Jail time of up to 20 years and a fine of up to $50,000 or 3 times the value of the money or property, whichever is greater.

As a prosecutor my number one concern was always my "victim" and making my victim whole again.   If the person charge stole $1500 worth of value from the victim, my top goal was to get that victim back the $1500.  From there I would focus on the punishment of the defendant, but not without considering my victim first.  

​If the person charge lacked a criminal record, there may be room for negotiations in order to recoup the money from the defendant.  I was more likely to gain a return of that money if I was willing to deal down from a felony to a misdemeanor or potentially deal to a dismissal altogether.  Prosecutors see black and white when it comes to charges - they don't really consider what each type of charge means in the real world.  An embezzlement conviction on someone's record is about the worse thing for ever getting a job or passing a background check.

I use my experience as a former prosecutor  and get inside the mind of the other side.  I realize that the prosecutor is likely most concerned about the financial return to their victim.  If after reviewing all of the evidence it appears the prosecutor has a strong case, we may shift positions and focus on a number of goals such as avoiding jail, a felony, and maybe a criminal record altogether.  

I don't just rely on my client writing a check to the victim to get the deal done, because this will only get us part of the way toward our goals.  We need to acknowledge the perception of our audience and realize that my client was in a position of trust and ripped off someone who trusted them - either an individual person or a company.  Is the prosecutor really going to give them a slap on the wrist and push them out of the courthouse door without any record of this happening for others to be fooled in the future? Probably not.

It's very important to get to the bottom of the issue with the client and try to figure out how they went from being a trusted person to throwing that trust out the window and defrauding someone else.  What's going on in my client's mental, emotional and physical state? Is there something new that triggered this poor choice? 

It could be family issues, alcohol/drugs, stress, work related, financial; whatever it is, we are going to identify it and put my client in a position to work on the issue and hopefully fix it.  We can't ask for the best outcome without solving the problem on our own.  If we can present why this happened, and a solution, a prosecutor and judge don't need to worry about pushing my client out the door as a serious threat to society.  There is an opportunity for a true second chance, but it needs to make sense to the prosecutor and judge, and the way to do that is with actions, not mere words. 

In Michigan, a defendant needs permission of the court and/or probation to travel outside of the State of Michigan or to leave the country during probation and during bond.  

As a former New York City and Michigan prosecutor, I was on the other side of many travel requests from defendants.  While I generally left the decision up to the judge, I was often asked by the judge what my position on the matter was - this puts a young prosecutor in a tough position, because a prosecutor brings the charge against the defendant, but isn't necessarily in a good position to determine if someone should be able to travel during a criminal case.   

The problem is most young prosecutors are blinded by their role and believe they must argue against whatever the other attorney is requesting.  This is a very silly and unnecessary thing to do, but most prosecutors don't have a ton of common sense.  As a former prosecutor I would generally tell the judge "we leave that to the discretion of the court" rather than agreeing or disagreeing.  If the prosecutor responses with a "NO, they shouldn't travel" then the judge is in a spot where he needs to decide for one side, rather than agreeing to something both parties are in agreement.  Some prosecutors just don't know how to agree to something even if its the reasonable thing to do.  

As someone who works with clients now, I take this experience and make sure that I speak to the prosecutor before making my request to the judge.  I anticipate the judge probing the prosecutor for a response, and instead of relying on that prosecutor reacting in a reasonable way when surprised on the spot, I give them a heads up and run it by them.  As long as my client is not currently in violation of bond conditions or giving a reason to be concerned, the prosecutor will usually agree "sure, that's fine with me, I don't oppose".  That way if the judge does ask, the prosecutor is already thinking about it, and doesn't need to respond with a rash and quick answer that might jam my client up.

Based on my experience as a prosecutor, I have also developed a proactive approach to all cases, which I discuss in great detail in other writings, books and articles.  This approach is essential in assisting my clients gain permission to travel out of the state or country during a pending criminal case.  If my client is charged with a drug or alcohol offense, we have already been testing more than most are required, and if its alcohol, we are likely on a portable unit, which gives the judge every reason to allow travel.  My clients are typically already in counseling, education programs and on the right path during the case; they have earned a bit of the benefit of the doubt and risk losing that benefit if they run into issue while traveling.  

Lesson is don't assume a judge and prosecutor will apply common sense or give you the benefit of the doubt.  Even if the travel is for work, a family wedding, something "required", that doesn't mean you will be allowed to go. 

​Plan in advance, talk about it with your lawyer and make sure you're doing something than just asking in order to get permission.  Show the judge and prosecutor you deserve that permission, don't assume you'll receive it.