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Jared Austin, J.D. | Article

How I Approach a Michigan OWI/DUI Case Part Two

2/25/2013
My first objective is to see if there is any way possible that the charge can be outright dismissed. That's always my goal right out of the shoot. If that proves to not be the case, now we move on to what I call minimizing the damage. That means I try to work out the best plea possible with the prosecutor and the best sentencing outcome as well. The standard plea in most jurisdictions for a first offense Operating While Intoxicated (OWI), is Operating While Visible Impaired (OWVI) or Impaired Driving. This may not work for some people as while it has it benefits from the OWI charge (restricted as opposed to suspended license, less points on your driving record, lower fines and driver's responsibility fees) it is still a substance-related offense which may not help some people depending on their profession or educational pursuits. If that is the case, the tactics must switch to pursuing a non alcohol-related conviction such as Reckless Driving.

On it's face, such a plea doesn't look like a suitable offer considering it carries the same points and driver's responsibility fees as the OWI charge plus a hard suspension meaning no driving for 90 days. At best it seems a lateral plea but the benefit it that it doesn't carry the stigma of a substance-related conviction like impaired driving. Also, if you unfortunately get charged with a DUI later on, you will be charged as a first and not a second offender. In the long run, this may help some clients even if the initial pain is more severe. You would think prosecutors wouldn't be so reluctant to the plea but due to political pressure to get a “drunk driving conviction” they consider it a concession and usually will not willingly offer it unless persuaded with good reasoning by your DUI attorney. Financially the township, city, or county will come out the same, if not better, but it's not as big of a feather to stick in their cap as an impaired or OWI conviction. Your best bet in obtaining Reckless Driving is on your first offense and the lower your blood alcohol content the better. If it's your second offense, it's harder to convince them to have sympathy for the detriment it's going to have on your career. Absent some problems with their case to use as leverage, your best bet at getting a reckless plea is for your first offense.

Once a conviction or plea has been entered, the next step before the sentencing is the mandatory alcohol assessment by the probation department. A lot of people and attorneys just don't realize how critical this is. It is vital that your client score the lowest they can on the assessment thus demonstrating that they are a low risk. The higher the score, the higher they look as a risk which means the worse the recommendations are from the probation department. Often the higher the score the more cumbersome and expensive the recommendations too. While jail is still a rarity for first time offenders, other punishment comes in the form of reporting probation with random and/or scheduled pbts, community service, alcohol educational classes, attending a MADD Victim Impact Panel; all of which cost money on top of your fines, court costs, driver's responsibility fees, and higher insurance premiums. That's why it is possible to get the best score you can on the assessment. I often spend an hour or more preparing the client for the assessment and sometimes have them get an assessment shortly after hiring me to 1) give me an idea as to what their assessment will reveal, and 2) if it's good use it as leverage with the prosecutor for getting a better deal. This is an important step than many attorneys overlook or downplay.

The conclusion of your DUI case is the sentencing. This takes place last after you and the judge have read the Presentence Report completed by the probation department. Many judges strictly or at least closely follow the recommendations but there are some that can be persuaded otherwise. That is where having a good, experienced attorney comes in handy. I prepare for sentencing just like I do the other phases of the case. It's important to not only go over the Presentence Report for errors, but on how to respond or mitigate any unfavorable comments. It's also important to present your client in the best light possible. This can include bringing documentation of any educational or professional accomplishments, volunteer work, family support, evidence of any AA attendance or alcohol classes that they have attended, letter of support or character reference. I prepare to point out as many good qualities that my client has in order to show the court not just their redeeming qualities, but to show the occasion that gave rise to their DUI was an anomaly, uncharacteristic, and not who they truly are. I then prepare the client on how to address the court if they wish to. I encourage clients to but some don't and I respect that as not everyone is comfortable speaking infront of the judge in a crowded courtroom. It's better to remain silent than for them to speak and make matters worse.

That is how I prepare for and approach a DUI case. Hopefully you can see the value in hiring someone experienced in this complex area of practice. It can be a lot of work, but the results can also be very rewarding and my goal is to always strive to get the best possible resolve for my client whether that is a dismissal, a good plea deal, or go to trial. Whatever the outcome, it all starts with preparation.