I’m going to go through this how I would go through a DUI consultation with a potential client charged with a DUI in Washtenaw County. I will also provide my insight into each aspect, and I go through the questions. This ten-step information gathering process was created based on my years as a prosecutor in both New York City and Michigan, and specifically what I’ve gathered working with different judges and prosecutors in the Washtenaw County.
#1 - I ask the client their age, their job/career, family situation.
I need to know these things, because I need to go inside the mind of the prosecutor and the judge. Being older is generally better for a DUI case, and having a good stable job with a family is good for bond conditions in terms of ties to the community; being married with children is usually better than being single with no kids when charged with a DUI in Washtenaw County.
#2 - I ask the client about their criminal history, and if they have ever been arrested and charged with anything in the past.
Obviously a past DUI offense is relevant in the current case along with any other alcohol or drug offense. An isolated non drug or alcohol conviction is not going to be as relevant, but a long criminal history will be very relevant as the judge and prosecutor see this offense as a long pattern with no end in sight. Jail becomes likely with a long criminal record. If the client has two or more DUI convictions, the case will likely be a felony, but begin at the 14A-1 District Court, before proceeding to the 22nd Circuit COurt.
#3 - We discuss where exactly this happened, what police department was involved, and if they were brought to a hospital or police department.
This helps me determine which court in Washtenaw County the case will be held, and which prosecutor and judge will be handling the case. By determining hospital vs police station, it gives me insight on the timetable for criminal charges as a blood test takes some time to come back for charges.
It also lets me know which police department I will need to contact in order to obtain the police reports, testing logs, test results, audio, video and other records created by your case. Some departments require FOIA requests, some don’t, so it’s important to know which department we’re going to have to contact.
#4 - We discuss how the police came in contact with the client: accident, traffic stop, while sitting idle in a parking lot or parked on the side of the road, and if they were seen in the driver’s seat or elsewhere.
If your case involved a traffic stop, we’re going to need to take a timeout and evaluate the legitimacy of the stop . If an accident was involved, there might be medical records to review, and it’s likely the EMS, fire department and additional police officers were involved who wrote reports, and may have their audio and video.
It may sound silly, but if nobody saw you behind the wheel of the car, the prosecutor still needs to prove you were driving, and that is not always as easy as you may think. I’ve been a prosecutor and a defense lawyer in many of these types of cases where the case went to trial on this very issue.
#5 - The potential client and I then discuss what they may have said to the police about, such as where they were going from, what they had to drink, and statements about driving.
Most DUI cases in Washtenaw County are traffic stops where the cop sees you driving, but if they don’t, and you tell them you were driving then you’ve lost a possible defense. You also don’t need to tell the cop you drank anything, but 95 percent of potential clients admit to drinking alcohol to the police officer. The client also usually tells the truth about where they were coming from, such as a bar, restaurant or party, which is fine, but it doesn’t help your case.
Another underrated element of DUI cases in Washtenaw County is the timetable of alcohol consumption. Cops are trying to pinpoint your timetable, so they can document it in their police reports, and prevent your attorney from making arguments about rising blood, mouth alcohol, and the creative defense of “drinking after driving”. If they can lock you down to your answer you while flustered, and not thinking about possible defenses, you lock yourself in more than you need to at the scene.
#6 - We then discuss what happens once outside the car - what field sobriety tests were performed, how did you do, and did you take a portable breath test.
Once outside the car, there may be a camera recording everything, which may give us an objective viewpoint of everything, but at this point, I need to know what you remember.
Most police reports in Washtenaw County read as if the client failed every test, slurring their speech etc; the perfect drunk driver to prosecute. Usually that is not true, but some elements of the officer’s observations although subjective are likely true. At this point I am looking at the officer’s basis for arresting you. Based on the tests you performed, his/her observations of you, did the officer have enough to place you under arrest, and if not, should everything thereafter the bad arrest be suppressed, and your case dismissed?
I am also looking to see what your blood alcohol content (BAC) was at the scene. Although not admissible at trial (although admissible in very limited circumstances), it gives us an idea of where your BAC was going (up or down) when we compare it to the later result. It also gives the prosecutor strong evidence to show the arrest was valid if the BAC is or above 0.08.
#7 - We then discuss the point when you were arrested, and if you were read any rights, which relate to statements or chemical test rights.
For DUI cases in Washtenaw County, most of the incriminating statements are made during the “investigation phase” while standing at the car, or while performing tests. For the most part, you are not yet in custody and/or under arrest, and statements made at this point likely don’t require Miranda rights.
As for chemical test rights, sometimes the officer reads them at the time of arrest, or in the car on the way to the police station. I will want to know if they were read, and what you recall the circumstances at the time.
Audio and video evidence may be available to learn more about this stage of the case. This could be an in-car device, or a recording device at the police station, otherwise known as a bookin video.
#8 - Assuming you’re brought to the police station, we will discuss observation time, and the DataMaster test.
In Michigan, the police must observe you for 15 minutes prior to administering the DataMaster test. If this does not occur, the results can be suppressed via motion or challenged at trial. If you believe you threw up, coughed excessively or put something in your mouth before the test, I need to know this, because it could impact the results.
The DataMaster is the machine used in Michigan for chemical breath tests, and typically two tests are administered. Generally, if only one test was done, or one of the tests had an issue, that may be a fruitful exploration for dismissal or a defense at trial. This ins and outs of the challenging the DataMaster are discussed in far greater detail in my other books and my websites if you would like to review.
During this time, the officer should have read you the chemical test rights if they have not done so already. You have the option to refuse the breath test, but the officer SHOULD inform you of the consequences, such as suspension of license for a year and 6 points on your driving record.
#9 - If you end up having blood drawn, we will discuss how you got there, and the impact on your case
If the officer takes you to the hospital by his/her choice or you go via ambulance (more likely in accident cases), and blood is drawn, this will delay your case as we wait for results. If the officer wanted to do the DataMaster test, but you refused, we will discuss the Implied Consent issues triggered, and your options.
If you refuse the DataMaster in Washtenaw County, you have 14 days to send in the paperwork for an appeal; if not, your license is gone and you have six points on your license. The Implied Consent process and the hardship license option is beyond the scope of this book, and available in my other books, and my website for your review.
#10 - The final conversation is about possible court dates, and beginning my proactive plan immediately.
Some clients already have a court date when they contact me, but some are still waiting for a court date. Some clients have a ticket, which says they must contact the court within X amount of days. Either way, if we decide to work together, we will likely call a timeout and have this first court date waived or adjourned. Beyond going through these steps, we now need to acquire all of the evidence, which the prosecutor and judge already have in their possession. We need to get on an even playing field as we explore all possible defenses.
We also need to begin my proactive program, which will be geared to the specific facts of your case, and take into consideration the assigned judge and prosecutor. Ideally, I like to create about a 30-day window.
#1 - I ask the client their age, their job/career, family situation.
I need to know these things, because I need to go inside the mind of the prosecutor and the judge. Being older is generally better for a DUI case, and having a good stable job with a family is good for bond conditions in terms of ties to the community; being married with children is usually better than being single with no kids when charged with a DUI in Washtenaw County.
#2 - I ask the client about their criminal history, and if they have ever been arrested and charged with anything in the past.
Obviously a past DUI offense is relevant in the current case along with any other alcohol or drug offense. An isolated non drug or alcohol conviction is not going to be as relevant, but a long criminal history will be very relevant as the judge and prosecutor see this offense as a long pattern with no end in sight. Jail becomes likely with a long criminal record. If the client has two or more DUI convictions, the case will likely be a felony, but begin at the 14A-1 District Court, before proceeding to the 22nd Circuit COurt.
#3 - We discuss where exactly this happened, what police department was involved, and if they were brought to a hospital or police department.
This helps me determine which court in Washtenaw County the case will be held, and which prosecutor and judge will be handling the case. By determining hospital vs police station, it gives me insight on the timetable for criminal charges as a blood test takes some time to come back for charges.
It also lets me know which police department I will need to contact in order to obtain the police reports, testing logs, test results, audio, video and other records created by your case. Some departments require FOIA requests, some don’t, so it’s important to know which department we’re going to have to contact.
#4 - We discuss how the police came in contact with the client: accident, traffic stop, while sitting idle in a parking lot or parked on the side of the road, and if they were seen in the driver’s seat or elsewhere.
If your case involved a traffic stop, we’re going to need to take a timeout and evaluate the legitimacy of the stop . If an accident was involved, there might be medical records to review, and it’s likely the EMS, fire department and additional police officers were involved who wrote reports, and may have their audio and video.
It may sound silly, but if nobody saw you behind the wheel of the car, the prosecutor still needs to prove you were driving, and that is not always as easy as you may think. I’ve been a prosecutor and a defense lawyer in many of these types of cases where the case went to trial on this very issue.
#5 - The potential client and I then discuss what they may have said to the police about, such as where they were going from, what they had to drink, and statements about driving.
Most DUI cases in Washtenaw County are traffic stops where the cop sees you driving, but if they don’t, and you tell them you were driving then you’ve lost a possible defense. You also don’t need to tell the cop you drank anything, but 95 percent of potential clients admit to drinking alcohol to the police officer. The client also usually tells the truth about where they were coming from, such as a bar, restaurant or party, which is fine, but it doesn’t help your case.
Another underrated element of DUI cases in Washtenaw County is the timetable of alcohol consumption. Cops are trying to pinpoint your timetable, so they can document it in their police reports, and prevent your attorney from making arguments about rising blood, mouth alcohol, and the creative defense of “drinking after driving”. If they can lock you down to your answer you while flustered, and not thinking about possible defenses, you lock yourself in more than you need to at the scene.
#6 - We then discuss what happens once outside the car - what field sobriety tests were performed, how did you do, and did you take a portable breath test.
Once outside the car, there may be a camera recording everything, which may give us an objective viewpoint of everything, but at this point, I need to know what you remember.
Most police reports in Washtenaw County read as if the client failed every test, slurring their speech etc; the perfect drunk driver to prosecute. Usually that is not true, but some elements of the officer’s observations although subjective are likely true. At this point I am looking at the officer’s basis for arresting you. Based on the tests you performed, his/her observations of you, did the officer have enough to place you under arrest, and if not, should everything thereafter the bad arrest be suppressed, and your case dismissed?
I am also looking to see what your blood alcohol content (BAC) was at the scene. Although not admissible at trial (although admissible in very limited circumstances), it gives us an idea of where your BAC was going (up or down) when we compare it to the later result. It also gives the prosecutor strong evidence to show the arrest was valid if the BAC is or above 0.08.
#7 - We then discuss the point when you were arrested, and if you were read any rights, which relate to statements or chemical test rights.
For DUI cases in Washtenaw County, most of the incriminating statements are made during the “investigation phase” while standing at the car, or while performing tests. For the most part, you are not yet in custody and/or under arrest, and statements made at this point likely don’t require Miranda rights.
As for chemical test rights, sometimes the officer reads them at the time of arrest, or in the car on the way to the police station. I will want to know if they were read, and what you recall the circumstances at the time.
Audio and video evidence may be available to learn more about this stage of the case. This could be an in-car device, or a recording device at the police station, otherwise known as a bookin video.
#8 - Assuming you’re brought to the police station, we will discuss observation time, and the DataMaster test.
In Michigan, the police must observe you for 15 minutes prior to administering the DataMaster test. If this does not occur, the results can be suppressed via motion or challenged at trial. If you believe you threw up, coughed excessively or put something in your mouth before the test, I need to know this, because it could impact the results.
The DataMaster is the machine used in Michigan for chemical breath tests, and typically two tests are administered. Generally, if only one test was done, or one of the tests had an issue, that may be a fruitful exploration for dismissal or a defense at trial. This ins and outs of the challenging the DataMaster are discussed in far greater detail in my other books and my websites if you would like to review.
During this time, the officer should have read you the chemical test rights if they have not done so already. You have the option to refuse the breath test, but the officer SHOULD inform you of the consequences, such as suspension of license for a year and 6 points on your driving record.
#9 - If you end up having blood drawn, we will discuss how you got there, and the impact on your case
If the officer takes you to the hospital by his/her choice or you go via ambulance (more likely in accident cases), and blood is drawn, this will delay your case as we wait for results. If the officer wanted to do the DataMaster test, but you refused, we will discuss the Implied Consent issues triggered, and your options.
If you refuse the DataMaster in Washtenaw County, you have 14 days to send in the paperwork for an appeal; if not, your license is gone and you have six points on your license. The Implied Consent process and the hardship license option is beyond the scope of this book, and available in my other books, and my website for your review.
#10 - The final conversation is about possible court dates, and beginning my proactive plan immediately.
Some clients already have a court date when they contact me, but some are still waiting for a court date. Some clients have a ticket, which says they must contact the court within X amount of days. Either way, if we decide to work together, we will likely call a timeout and have this first court date waived or adjourned. Beyond going through these steps, we now need to acquire all of the evidence, which the prosecutor and judge already have in their possession. We need to get on an even playing field as we explore all possible defenses.
We also need to begin my proactive program, which will be geared to the specific facts of your case, and take into consideration the assigned judge and prosecutor. Ideally, I like to create about a 30-day window.
