When you were arrested, you were likely taken into custody and held until your blood alcohol level diminished sufficiently in order for you to return home, or until you were bonded out by friends or family. Before you leave, you should have a bond receipt from the jail, a paper driver’s license and vivid memories of what you have experienced since you were stopped by the police.

You should come to your meeting prepared to provide as much information as you can recall involving your arrest and the events leading to your stop by the police. Your DUI attorney will want to know where you were drinking, the names of the individuals you were with, what you drank and how much you had to drink. You will be asked when you had your last drink and whether you drank on an empty stomach or whether you recently ate a meal. You may also be asked information regarding any medications you are currently prescribed. While not advisable, many of the medications you take may have warnings against consuming alcohol. These medications may have the effect of amplifying the appeared on impairment or response time. You may be asked whether you recall operating your motor vehicle. You may also be asked whether you have ever been arrested before and whether you have any prior convictions. Now is not the time to withhold information from your attorney. You need to think of your attorney as your priest, your pastor or your rabbi. The more information you can provide the better. Any information you withhold can come back to harm you and your case. Most attorneys you will speak with have represented many people over a variety of different settings. While you may be ashamed or remorseful regarding your arrest, the more information you can provide and the more honest and forthright you can be the better. Conversations you have with your lawyer are protected by privilege.

While it is never pleasant to find yourself in this position, the stress of the situation can be made more bearable if you make an important decision: hire a capable and knowledgeable DUI lawyer. Despite your desire to hire your cousin, who just got out of law school, or your neighbor, who practices primarily family law, it is important to hire an attorney competent to handle drinking and driving offenses.

What does it mean to be competent? According to the Michigan Rules of Professional Conduct, “a lawyer shall provide competent representation to a client.” A lawyer shall not handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it; handle a legal matter without preparation adequate in the circumstances; or neglect a legal matter entrusted to the lawyer.

As an aside, it is also advisable to hire an attorney who has practiced in the city or county where your arrest occurred and is willing to zealously represent your interests. There is more to the practice of law than simply knowing the law. Your attorney should also know your court, have experience appearing before your judge and that attorney should have experience handling cases with your prosecutor.

Another important factor is that your attorney should be prepared. He should have a copy of the police report, Datamaster log sheets, copies of the in-car and booking video and other documentation specific and relevant to your case. While that information may not be available to your attorney by your first hearing, usually an arraignment or an arraignment/pre-trial, every effort should be made for your attorney to demonstrate to the prosecutor and to the court that this information has been timely requested. It is important to understand that most police departments recycle their in-car videos and booking videos within a certain amount of time, usually within thirty (30) days. Therefore, it is important for your attorney to know how to request this information and how to preserve this information in his efforts to zealously and effectively represent you in your case. Videos can sometimes be made available with a simple discovery request to the prosecutor and sometimes they can be obtained by a Freedom of Information Act (FOIA) request to the police department. This is where knowledge and familiarity by your attorney of the court, the prosecution and the police department is critical. Decisions relative to entering a plea versus scheduling the matter for trial can and should only be made once all information, inculpatory and exculpatory, is thoroughly reviewed.

You are asked a series of questions. The officer will later right in his report that you appeared confused, your eyes were slightly blood shot and the officer detected a strong odor of intoxicants. After asking you more questions, you are asked to step out of your car to perform a Field Sobriety Tests. Unlike testing you are familiar with where if you study and apply yourself, you can be successful, FSTs are designed for you to fail. This isn’t cynicism…this is fact.

FSTs are failure-designed tests. Nearly every motorist, regardless of sobriety levels, fails field sobriety tests. The level and degree of failure is noted by the investigating police officer. Starting any test too early is considered a failure. Performing a test too quickly or too slowly is considered a failure. Failure to follow the officer’s strict instructions is considered a failure. As an example, an officer may ask a motorist on a roadway stop to count backwards from 78, stopping at 59. Inevitably, most people count backwards from 78 but forget when to stop, finally interjecting at 56 a question, “When did you want me to stop?” According to the officer, the motorist has “failed” that field sobriety test at that point.

Because Field Sobriety Tests are failure-designed, a driver should not attempt these tests. These tests are not designed to show whether a driver is sober. Performance of these tests is completely voluntary, and a motorist should not voluntarily submit to these tests.

ALPHABET RECITING

The officer asks the motorist to recite the alphabet without singing. Although people often times complain that an officer requested that the motorist recite the alphabet backwards, this is primarily a myth. More often, the officer will request that the alphabet be recited from C through T. There is no scientific basis for this test, and the test results are not designated as reliable tests for measuring sobriety.

FINGER TO NOSE

The officer asks the motorist to extend his or her arms and close their eyes, sometimes instructing the motorist to tilt their head back, touching the tip of the nose. There is no scientific basis for this test, and the test results are not designated as reliable tests for measuring sobriety.

The SFSTs are as follows:

WALK AND TURN This test requires a driver to walk heel to toe and turn. It must be performed on a surface where a clean line is visible and where there is a level, non-slippery surface. Failure includes:

→Loss of balance during instructions. Be careful if you have balance problems going into this test. You may be questioned whether you have any health concerns that can affect your balance.

→Starting before officer’s instructions are finished. You are nervous. This is a normal response considering your predicament.

→Stopping or pausing while walking.

→Failing to touch heel-to-toe on each step

→Stepping off of line (often times the line is imaginary)

→Using arms for balance (this is subject to broad interpretation by the officer)

→Losing balance while turning/incorrect turn (also subject to broad discretion of officer)

→Performing the incorrect number of steps

Why is this important? Canada considers a drinking and driving conviction to be a very serious offense. While this is not a unique view, Canada goes so far as to prevent those individuals with a DUI conviction from crossing into its borders. Consequently, this can have very serious consequences for someone whose job duties require frequent travel into the Canadian provinces. Michigan clients arrested for drinking and driving offenses are not often aware of these barriers to entry until it is too late. The inability to enter Canada can lead to job loss or missed job opportunities. One SMDA client was in medical equipment sales where part of his territory included Ontario. When he was charged with a drinking and driving offense, the first consideration was how a conviction could lead to a loss of employment. Another recent circumstance involved a Michigan resident charged with a DUI offense who worked as a contract engineer in the auto industry. He had just been offered permanent employment with one of the big automakers, but his job involved a transfer to Ontario. An even more tragic example involved an SMDA client whose young son was living in Windsor, Ontario. This client encountered difficulties in crossing the borders even to see his child. Thankfully, he maintained a good relationship with his ex-wife, and she accommodated visitation by driving to the United States for visits. Not only are their legal and financial consequences to DUI offenses, there are also family and job-related consequences, too.

Regardless of the length of time Canada has made this classification or whether this classification was heightened following the events of 9/11, this Inadmissible status prohibits an individual from entering Canada and remaining within its borders. This status even prevents entry when they are simply passengers in a vehicle and not even the vehicle operator.

A definite strategic consideration employed by SMDA attorneys is to interview clients about visits to Canada and the anticipated need to cross the borders. It is with this Inadmissible classification in mind that these inquiries are made.

All hope is not lost in that Inadmissible status can be removed through an application for a Minister’s Approval of Rehabilitation. However, this can be a lengthy and cumbersome undertaking equivalent to some of the most frustrating of bureaucratic hoop jumping. However, a Michigan resident can visit Canada before the Inadmissible status is removed through a Temporary Resident Permit. The Temporary Resident Permit allows entry into Canada for a single purpose or for a limited period. Be advised, though, that this process requires completion of forms and paying fees. You are advised to plan ahead and to employ the services of an experienced attorney to handle this process on your behalf. An attorney will know how to expedite the request, and they will not make mistakes causing delay.

The journey begins at the time of arrest.

The arraignment will be your first appearance in court. At this time, the judge will formally read the charges against you and give you an opportunity to enter a plea. Typically people will plead ‘not guilty’ at this stage regardless of how they plan to proceed.

It is important to realize that you will not be going to a trial of any type during your arraignment. In many cases it will be largely a formality, and your lawyer may elect to file paperwork waiving the arraignment meaning you will not have to appear at the court.

During the arraignment, the judge will set a bond amount and impose bond conditions, such as imposing daily preliminary breath tests.

Discovery is a process in which both the prosecution and the defense are given the opportunity to understand all of the facts and evidence of the case. This process is usually not done in court, but rather through a series of communications between your lawyer and the prosecutor. During this phase, you will have an opportunity to written reports, video evidence, official test results and other evidence that apply to your case.

Once discovery is exchanged, the next step is typically a pre-trial conference between the defense lawyer and the prosecution. While this is often done at the court, it is not done before a judge or jury. This is basically an opportunity for both sides to discuss whether or not a plea agreement can be reached without the need for a trial. So, if you’re attempting to plea your case, this is when you’ll find out what plea the prosecutor will accept.

Following the conference, both the defense and the prosecution will appear before the judge for purposes of either resolving the case in the form of a plea or to set the matter for hearing on pre-trial motions and/or trial.

This is the last phase before your trial will begin. Basically, during this phase your attorney may submit written pleadings attempting to persuade the judge to dismiss the case or to suppress evidence. This can be a very complicated stage and usually requires a skilled lawyer to help navigate.

If no plea was reached and your attorney was unable to have the case dismissed, this is the next step. Typically you will have the opportunity to choose between a jury trial (which will be with six jurors, not twelve) or a bench trial (in which case there will be no jury and the judge will decide your case).

At the end of a trial, you will either be found ‘guilty’, in which case you will proceed to sentencing, or you will be found ‘not guilty’, in which case you’ll be free to go.

Drinking-and-driving offenses in Michigan fall into three categories. Convictions for operating while intoxicated (OWI) and operating while visibly impaired (OWVI) carry maximum penalties of up to 93 days in jail, $300 to $500 in fines and costs, license sanctions, and 45 days of community service. A blood-alcohol content of 0.08 or greater is considered legally drunk, which prosecutors can count as an additional charge.

Refusing a chemical test can raise additional consequences beyond the traffic stop. Under Michigan’s implied-consent law, drivers are presumed to have given their permission for such a test. Failure to do so can mean a one-year suspension, which increases to two years for second offenses. Any attempt at preventing a one-year driving suspension first requires a separate hearing with the Secretary of State. Depending on the outcome of that hearing, a hardship appeal is an option at the circuit court. However, no hardship appeals are allowed for repeat offenders.

To address serious crashes involving alcohol, state lawmakers created the felony categories of OWI and OWVI causing serious injury or death. Both offenses carry maximum terms of up to five and 15 years in prison, respectively. Spending up to 20 years in prison is possible for anyone who causes an emergency responder’s death. These penalties apply for first and subsequent offenses.

Forfeiture of the vehicle is a distinct possibility in Michigan, which allows the sentencing judge to decide that issue. The less severe sanction of vehicle immobilization is another possibility. Moreover, the sentencing judge isn’t bound to consider who owns or uses the vehicle. Defendants may also receive a restricted license for driving to community service, probation, school, work or substance abuse treatment. Proof of destinations and driving hours must be carried at all times to satisfy law enforcement. Drive for any other reason and you run the risk of being charged with new criminal activity and/or further driving sanctions.

The first thing that your Michigan DUI lawyer should do when interviewing you or when reading a police report is to determine the basis for the stop by the police in the first place. The way SMDA attorneys explain this to clients is to determine from the interview whether there was an independent reason for the stop, other than suspicion that the driver was drinking and driving. In other words, would there have been a stop but for this suspicion? If not, this may form the basis for a motion to quash blood alcohol evidence based on fruit of the poisonous tree.

Specifically, was there a reasonable basis for the stop? Of course, the basis for the stop can be substantiated in a variety of different ways, including the in-car video running before, during and after the stop. Be careful in requesting the in-car video, though. It can be a double-edged sword. Most jurisdictions in Michigan cycle through in-car videos in thirty (30) days or less. In order to preserve this evidence, it is necessary to either contact the police directly through a Freedom of Information Act (FOIA) request or through the prosecutor, as part of a demand for discovery. There are circumstances where the in-car video can be very helpful to your client in that it can demonstrate sober driving when the police report indicates impaired driving, or it can reiterate and amplify impaired driving. The prosecution may have otherwise overlooked the in-car video, but when the request is made by a Michigan DUI lawyer, it can also draw curiosity and can and will be used by the prosecution during an evidentiary hearing or trial.

According to the National Highway Traffic Safety Administration, the five most common bases for police stops in drinking and driving cases are:

1. Turning with a wide radius
2. Straddling center of lane marker
3. “Appearing to be drunk”
4. Almost striking object or vehicle
5. Weaving

Moreover, the vast majority of Michigan DUI arrests occur at night and on weekends. It is noteworthy that speeding is absent from this list. Notwithstanding, prosecutors will commonly argue that speeding is “risk taking” behavior indicating diminished judgment spurred by the consumption of alcohol. Conversely, based on the facts and circumstances, an argument can be made by the defense that the ability to speed and safely maneuver a vehicle while weaving in and out of traffic are indicative of highly sober driving demonstrating a high level of responsiveness which would be presumably absent with an intoxicated or impaired driver. more A Michigan DUI practitioner takes his clients and the facts of the case as they come. While, in hindsight, an attorney would have liked to have advised his client against speaking to the police officer when stopped for suspicion of drinking and driving, as an attorney, we were not present for the stop. So, while the articulable basis for the stop is necessary to analyze for potential defenses, statements made by you may inadvertently erode these defenses. This is why a successful DUI defense is very fact intensive. Asking the right questions comes from experience…the type of experience possessed by SMDA attorneys. If you find yourself stopped by the police, despite your level of intoxication and/or anxiety, don’t volunteer any information to the police. Then, contact an SMDA attorney to ensure that your rights are protected.