Getting Through a Michigan DUI Charge

By Jeffrey J. Randa

The greatest thing a DUI defense attorney can do for his or her client is to find a way to “beat” the charge. If the whole DUI case gets thrown out, then there isn’t even the possibility of jail. That, of course, would provide the best possible relief from this stressful situation.

As a starting point, note that the actual term under Michigan law for what everyone calls a “DUI” (and some call “DWI”) is actually “Operating While Intoxicated,” or “OWI” for short. We’ll use those terms interchangeably throughout this piece. A DUI is really 3 things:

1. A criminal offense.
2. A traffic offense, and
3. A criminal traffic offense.

Whatever one calls it, the first thing we must do in all drunk driving defense cases is to obtain and then carefully review all relevant evidence. This requires more than just “looking it over.” Instead, as DUI lawyers, we must begin with the mindset that there IS some way to “beat” the case, and that we must keep digging until it’s found.

Of course, even the most determined mindset of the criminal defense lawyer won’t change the evidence or the facts, but, often enough, that kind of tenacity leads to us find what could have been overlooked with a less intensive search.

That, in turn, provides us with things we can use to negotiate a better deal (like a plea bargain or sentence agreement).

The simple fact, however, is that in most DUI cases brought in the State of Michigan, the evidence is NOT fatally compromised, and there is, often enough, no question that the person did drive under the influence of alcohol.

The reality is that getting a DUI case thrown out of court is always the exception, and not the rule.

A drunk driving charge, is, after all, a criminal charge, and one of, if not THE most common kind of criminal case seen in just about every local court.

The moral of the story, though, is that the only way to find an exception is to look for it.

What About Jail?

Everyone’s first worry is about going to jail. Not surprisingly, the chances of getting locked up increases with each subsequent DUI conviction. The law does, in fact, provide for the possibility of jail in all driving under the influence (DUI) cases.

Fortunately, possible does NOT mean probable.

The good news is that being able to stay out of jail is NOT just limited to the first time a person runs afoul of Michigan’s drunk driving laws.

Of course, one of, if not THE primary reasons anyone hires a DUI defense attorney is to avoid jail. Even when someone has numerous prior DUI convictions, it’s understood that the OWI lawyer’s first objective is to keep any incarceration to an absolute minimum.

Let’s see how this usually plays out in 1st, 2nd, and 3rd offense cases.

1st Offense OWI in Michigan

Anyone facing a first offense OWI charge shouldn’t stress out and waste mental energy thinking about jail because it’s not likely to be on the menu – even in most High BAC cases.

Very often, and despite when the evidence is rock-solid, we can still negotiate a plea bargain down to the least serious DUI charge of OWVI (short for “Operating While Visibly Impaired”).

Once you know that you’re not going to jail, getting through that DUI, whatever the final charge, means avoiding and minimizing the other legal consequences (like losing your license and being on long and/or difficult probation) that are realistically possible.

Make no mistake, there is plenty of other potential fallout to manage, like preserving one’s ability to drive.

2nd Offense OWI in Michigan

Fortunately, jail is not a “given” for 2nd offense DUI, either. In fact, in many cases, it CAN completely be avoided.

The mechanics of what needs to be done to properly defend a 2nd offense charge are different than those in a 1st offense. There is much more work involved. However, even if your case is a nightmare and you wind up in front of a tough Judge, any realistic jail term is usually measurable in days, NOT weeks or months.

No matter what the facts, or who the Judge is deciding your case, unless it is dismissed outright, you can count of getting probation for anywhere from 1 to 2 years (18 months is not uncommon).

Probation, by its very nature (especially in a 2nd offense case), requires that you do all kinds of things, including NOT drinking and providing regular breath and/or urine samples to prove you aren’t. In addition, Michigan law requires that all 2nd offenders MUST be ordered into some kind of “help,” be it classes, counseling, and/or rehab.

Sometimes, in addition to the above, you’ll also be required to attend support group meetings (like AA) and do community service, among other things.

These are exactly the kinds of things we need to help you avoid and/or minimize.

3rd Offense Felony OWI in Michigan

It should not come as a surprise that a 3rd offense DUI charge is serious. It is after all, a felony, and there is no more serious drunk driving charge. If a person has 12 prior DUI’s, his or her subsequent arrest of number DUI # 13 can only be charged as a 3rd offense.

That brings us to the question: Is jail guaranteed in a 3rd offense?

The answer, fortunately, is no. Let’s explore this a bit more…

Of course, if someone DOES have 12 prior DUI’s, then he or she is not likely to escape getting locked up for number 13. Because a 3rd offense is the most severe DUI charge in Michigan, the first question any good DUI attorney will ask a person is how many priors DUI convictions he or she has.

If someone only has 2 priors, then his or her 3rd offense charge is what’s called a “true 3rd,” meaning that it is, in fact, his or her 3rd time.

The less prior DUI convictions on a person’s record, the better. Here’s why:

Under the law, anyone convicted of a 3rd offense DUI must serve at least 30 days in jail. He or she can be sentenced to a longer period of incarceration, including up to 5 years in the state prison system.

Fortunately, there is both an exception AND a work around to this.

• The exception is that if a person is admitted into a specialty court program, like a sobriety court program, the judge can withhold some or even all the minimum 30 days in jail.
• The workaround is that if a 3rd offense felony is reduced to a 2nd offense (misdemeanor) DUI, then there is no mandatory jail time.

Earlier, we noted that a 2nd offense requires a lot more legal work than a 1st offense. It shouldn’t come as a shock that, in turn, a 3rd offense requires even greater effort. Some of this extra work will play out in court appearances, but much of it takes place behind the scenes.

Avoiding or minimizing jail in a 3rd offense case does NOT happen by accident. It is always the result of diligent legal work done by a skilled drunk driving attorney pursuant to an intelligent defense strategy.

Why Work With Jeffrey Randa and Associates

As genuine Michigan DUI attorneys, the work we do can be complicated. However, it always includes making sure we provide the following assistance to help you get through your DUI case intact:

• Helping to relieve you of the emotional burden and stress from a DUI arrest
• Giving you the security of knowing that we will take care of this for you
• Making sure you know that my team and I will always have your back
• Developing an intelligent strategy to get the best result in your case
• Avoiding as many of the legal penalties and negative consequences as possible

Understanding that you’re in good hands is all well and fine, and that’s certainly comforting, but most people still have 3 burning questions:

• What am I realistically facing?
• What’s being done on my case?
• What is going to happen to me?

The simple fact is that the stress of a DUI weighs more heavily on some people than others. That’s not to say many people just “blow it off,” but some people, like those who are just “nervous” by nature, or who have a pre-existing anxiety disorder, can really become overwhelmed by a pending drunk driving offense.

My team and I understand the importance of explaining things clearly. Providing answers (like to the 3 questions above) can really help a person de-stress. I’m the guy responding to emails at 10:00 p.m. When it comes to answering questions and just “being there” for the client, nobody does it better than us.

We also understand that the whole DUI experience can be different just because of a person’s gender.

Ultimately, what matters most is either getting you out of this situation completely, or, if the evidence is solid, then getting you through it with the fewest legal penalties and negative consequences possible.

After all, success in a DUI case is best measured by what does NOT happen to you.

Moderate Your Anxiety & Don’t Play “Google Lawyer”

Although it may be hard, try to resist the temptation to start playing lawyer based on what you think you’ve learned online about Michigan DUI offenses. I have personally found plenty of misguided information on legal websites. I have also seen so-called defense lawyers put things online that are just plain dead-wrong, as well!

None of that is going to help you get through this. If anything, it will either get you all worked up about things that aren’t likely to happen or create unrealistic expectations that sets the stage for disappointment.

Beyond that, no lawyer wants to represent the newly minted amateur internet legal scholar who thinks he or she has learned enough to direct case strategy. Whoever else you are in life, don’t be that person.

A few days on Google simply cannot provide the same level of knowledge as a formal legal education combined with having handled thousands upon thousands of Michigan DUI cases.

Unfortunately, there is as much, if not more misleading information about things like BAC (blood alcohol content) levels and alcohol testing than there is accurate information to be found online.

A physician friend of mine once posted a meme showing a sign on the window of a doctor’s office that read:

He meant it in good humor, of course, but I’m sure there was a bit of truth behind it.

Now, for all of that, it’s important to also understand that a DUI case has several stages you’ll need to get through. If you’re reading this, you’ve already been through the first part, the arrest and booking. Let’s turn to what happens next.

The DUI Court Process in Michigan

The DUI court process can seem like a mystery to the client. Fear of the unknown is very real. Therefore, knowing what is (and isn’t) going to happen can help relieve some of that stress. Just explaining things clearly can help a person get through his or her DUI with less anxiety.

The nervousness that many people feel is often the result of misplaced worries about what could or might happen. Ironically, while many people want to “get this over with” as soon as possible, that is almost NEVER the best way to handle a DWI charge.

Instead, our goal is always to produce the best outcome in every case we take, not the fastest.

The proper handling of a DUI case begins with getting ALL the facts and evidence. This requires not only getting the police report, but all relevant bodycam and dashcam video, as well. That can’t happen, however, until the case formally begins, and that takes us to the court process:

Arraignment

This is the first “court” thing to happen in a DUI. At an arraignment, a person appears before a judge or magistrate in the district court for the jurisdiction where the arrest took place. Once the case is called, he or she:

• Is told of the charge(s) against him or her and the maximum possible penalty that can be imposed for each,
• Has a bond amount set (if anything was posted upon release from jail, that will usually be enough),
• Learns his or her conditions of bond. In a DUI case, this always includes not leaving the state without the court’s permission, an order for “no drinking” and periodic breath and/or urine testing to ensure compliance,
• Gets advised of his or her constitutional rights (like the right to remain silent, to have an attorney, etc.),
• Is asked to enter a plea (and it should ALWAYS be “not guilty” at this stage), and
• Will be advised either of his or her next court date (for a pretrial) or be informed that a notice will be mailed to him or her with that information.

Pretrial

There is always at least one, but often several “pretrials” in a DUI case. The real-world purpose of a pretrial is to bring the defense lawyer and the prosecutor together so that they can look for a way to resolve the case through a plea bargain or plea arrangement.

Of course, if there is a problem with the evidence (like the administration of the field sobriety tests, or the reliability of the breathalyzer test results) or how it was obtained (was there probable cause to make the arrest?), the lawyer should seek to keep it out of court and try to get the case thrown out.

The simple truth is that most OWI cases are resolved through some kind of plea. There is a whole lot that goes into these negotiations, including the ability to stand firm and NOT accept an offer if there is a better one that can be had.

Knowing that is the product of experience.

This is a key reason why our firm concentrates its DUI practice in the courts of the Greater-Detroit area, meaning Wayne, Oakland, Macomb and the surrounding counties. We deal with the same prosecutors and judges every day, and that kind of experience is invaluable.

Trial

A trial occurs when there is no agreed way to settle a case. To be clear, plenty of DUI cases get set for trial, but of those, almost all of them get resolved through some kind of plea arrangement before a trial takes place.

This is because among all the DUI arrests in Michigan each year, the number of people who go to trial and get acquitted (found “not guilty”) is EXTREMELY low. It has NEVER even risen to .2%. To be clear, that’s zero POINT two, meaning less than 2 tenths of 1 percent.

Put another way, over 99.8% of all people arrested for a DUI do NOT win at trial.

Behind those numbers, though, is the fact that a trial is a huge undertaking for both sides. Even if a case is rock solid, the prosecutor is going to have to put a lot of work into preparing and presenting it. NOT having to do that frees up a lot of time. This is one of the incentives for the prosecution to relent and agree to a better deal.

A trial can be held before a jury, or by a judge alone, without a jury, in what’s called a “bench trial.” Lawyer will sometimes call a bench trial “a long, slow, guilty plea.”

If you’re facing a DUI, about the only reason to go to trial is if you have a clear shot at winning.

Pre-sentence Investigation (PSI) and Screening

There are really 2 parts to this:

The Screening

Under Michigan law, before a person is sentenced for a DUI, he or she must undergo an alcohol and/or substance abuse assessment. This is sometimes just called a “screening,” or “alcohol screening.”

This takes the form of a written “test” administered by the court’s probation department:

• Each answer has a point value,
• Those points are totaled up,
• That number is compared to a scoring key.
• The scoring key measures whether the person has an alcohol problem, or,
• If he or she at risk to eventually develop a drinking problem, or
• He or she is just a normal drinker.

Ultimately, this information is used by the probation officer to recommend what kind of education, counseling, or treatment a person should get as part of his or her DUI sentence.

This can get very deep, but our key concern here is that there is a clinically recognized risk in the court system for what’s called “over diagnosis.” This term refers to the fact that the courts tend to “see” problems that don’t exist, or to see any that do as being worse than they are.

Part of the reason for this is based on a verified yet competing fact: Multiple studies have proven that, as a group, people who have even a single DUI have a higher rate of drinking problems than the population at large.

Thus, anyone walking into court following a drunk driving arrest is (correctly) seen as part of a higher risk group.

The PSI and Sentencing Recommendation

In addition to the alcohol assessment, the probation officer is also going to look at the facts of the case (like the BAC result), the person’s prior record (this includes both his or her criminal record and driving record), if any, and his or her background:

• Where and to whom was he/she born?
• Where and with whom was he/she raised?
• What kind of childhood did he/she have?
• What level of education has the person received?

In addition, the probation officer will collect detailed information about the person’s:

• Current employment and work history,
• Current relationship/marital status,
• Children, if any,
• Substance use history, and
• Future plans.

All of this culminates in a written sentencing recommendation that is sent to the judge, advising him or her what to do to the person for his or her DUI. It’s important to know that just about every judge, in every court, follows these recommendations very closely.

Basically, the pre-sentence investigation (often called a “PSI” for short) is the blueprint for what’s going to happen to someone. This means that it’s important to get a better (as in more lenient) recommendation than it is to get one that’s “tougher.”

Sentencing

This is the final court stage of a DUI, and it’s the point where the judge decides exactly what he or she is going to do to the person. The judge has the option of sending a person to jail (or even prison, in a 3rd offense felony DUI case), imposing a probationary sentence, or a combination of both.

The judge can also impose any conditions of probation he or she feels appropriate, like alcohol counseling, substance abuse treatment, community service, etc.

The Michigan Probation Process

After sentencing, you’ll be done going to court. For most people, that means starting a term of probation.

Probation for a drunk driving offense means remaining out of jail if you do certain things, and DON’T do a few others. DUI probation always comes with standard conditions. These require, among other things, that you –

• Not be convicted of any other crimes (some probation orders specify that you don’t even get arrested for any reason),
• Not leave the state without the court’s permission,
• Completely refrain from drinking any alcohol or use any drugs without a prescription
• Provide periodic breath and/or urine samples to ensure compliance with that “no drinking/no drugs” order,
• Report to your probation officer every month, or as directed (this can sometimes be avoided), and
• Complete some kind of alcohol and/or substance abuse education or counseling.

In some cases, you’ll have to do community service. This is most often required in Oakland County, sometimes required in Wayne County, and least often required in Macomb County.

There are a few Judges (thankfully, very few) who, depending on the facts of the case, may the order the use of an ignition interlock device (technically called a “breath alcohol ignition interlock device,” or “BAIID” for short) even when not required by law, as following a conviction for a High BAC drunk driving offense.

Probation can be easy, or it can be difficult. There are certain courts where, if a 1st offense DUI is correctly handled, the whole case can be wrapped up and you could only wind up get getting 6 months of non-reporting probation.

In some places, a person can get away with a very short stint of rather “easy” probation. Of course, there are other courts that seem to “pile on” the probation conditions.

No matter what, there will always be one court that is the most lenient, another that is the toughest – with most falling somewhere in between.

For anyone going through a DUI, dealing with the conditions of probation is where you’re going to “feel” this the most.

To my team and I, getting through a DUI means avoiding as much of this as possible and winding up with the fewest things you must do and those you cannot.

Remember, success in a DUI case is best measured by what does NOT happen to you.

A High Profile Michigan DUI Case That was Both Exceptional – and Typical

About 1 month after being hired as a defensive line coach for the University of Michigan football team, Greg Scruggs was pulled over by a police officer and arrested for a DUI in Ann Arbor. Although the case made national headlines because of Scruggs’ new position under a newly named head coach, there was nothing unusual about it.

In terms of a DUI stop, the field sobriety tests and everything else that followed, this was an entirely garden-variety DUI case, with no legal issues to challenge.

Here is the initial story.
Scruggs had 2 prior alcohol run-ins dating back to his college days and shortly after. Likely because of that, and the general belief that he should stand as a role model while working with students, this new DUI would have likely cost him his job.
Instead of waiting to be fired, he resigned from his $650,000 per year position (his contract provided for a $75,000 signing bonus within 30 days if he passed a “background,”) and a raise to $750,000 after his first year on the job.
Here is the follow up.

What Happened in Court

Court records show that Scruggs’ DUI defense attorney was able to plea-bargain his original OWI charge down to the less severe offense of OWVI (Operating While Visibly Impaired).

That saved him fines, costs, points on his driving record as well as a hard suspension of his driver’s license imposed by the Michigan Secretary of State.

My team and I do this all the time. This is part of a typical day’s work for us.

We can safely assume that, like EVERYONE facing a DUI, Scruggs was worried about what was going to happen to him.

Unlike almost everyone else, however, fear about losing his job wasn’t unfounded.

What Does This Mean for Me?

Over the course of 30-plus years, and having handled thousands upon thousands of DUI cases, I can only recall one client ever losing his job as the result of a DUI, and that’s because he had recently been hired as a driver for a large shipping company. As a result of his DUI, he lost his commercial driver’s license (CDL). This is required by federal law ANYTIME a person is convicted of an alcohol-related traffic offense.

For just about everyone else, a DUI will NOT have such catastrophic consequences.

Here are 3 questions we get asked almost every day:

1. Will my [boss, job, neighbors, friends or family] find out about this?

Not unless you tell them.

1. Am I going to lose the ability to drive?

A key goal for us is to prevent or minimize any license suspension or revocation.

1. I have a professional license; what’s going to happen to it?

If handled properly, probably nothing other than you having to report your DUI.

Our firm has represented everyone for OWI charges, from bakers, dentists, dental hygienists, doctors and lawyers to plumbers and teachers, and just about every occupation in-between. They all come to us worried about what’s going to happen.

Precisely because we are DUI defense lawyers, we know how to protect our clients and their interests, and we make sure they know that, too. Unless you’re that kind of one in a million like the 2 DUI cases discussed above, you’ll be fine.

We’ll make sure that happens for you.

Jeffrey Randa & Associates Are Here for YOU

As we noted above, a DUI charge, whether a misdemeanor, or even a felony, is not the end of the world. The goal is always to avoid and minimize as many legal penalties and negative consequences as possible, and we know exactly how to do that.

As noted above, we take pride in helping good people out of bad situations.

Of course, you will always do better if you hire a better lawyer. My team and I are genuine DUI lawyers. Our law firm handles Michigan OWI charges all day, every day, in Wayne, Oakland, Macomb, and the surrounding counties. If you’re facing a DUI, we have the skill and unsurpassed experience to help you out of this mess.

For your part, be a good consumer and read around. Pay attention to how different criminal defense attorneys break down the DUI process, and how they explain their various approaches to it.

Then, start checking around. Nothing beats talking to a live person, and that’s exactly what you’ll get when you call our office.

My team and I are very friendly people who will be glad to answer your questions. We offer a free consultation that is confidential and done over the phone, right when you call. We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 586-465-1980. Or contact us here.

Frequently Asked Questions

What Are Some Tips for Moderating Anxiety After a DUI?

One of the best ways to deal with the stress of a drunk driving charge is to know that you’ll get past it. If you’re our client, you can take comfort knowing that with kind of care we provide, you’ll get through your DUI case with the fewest legal penalties and negative consequences possible.

Don’t start worrying about all the negative things that could happen, because most of them won’t. Avoid focusing on some one-in-a-million tragic DUI case. Instead, know that we’ll get you through this intact.

We’ll help you avoid the revocation of your driver’s license and minimize any period of restrictions on your ability to drive.

This isn’t just “talk.” We truly believe our job, as Michigan DUI lawyers, is to take the burden off your shoulders and make things better for you. As noted above, an important part of getting through a DUI is knowing we’ve got your back.

We pride ourselves on helping good people out of bad situations.

How Can I Provide Support to a Loved One Facing DUI Charges in Michigan?

Best way to provide support for anyone going through a DUI is simply to “be there.” That may sound trite, but it’s normal for someone facing a drunk driving charge to stress out.

Beyond just “being there,” here are a few other things you can do, or offer to do:

• Remind the person that the situation is temporary
• Make sure he or she gets a good DUI lawyer
• Don’t let them get stuck on all the negative things that could happen
• Point out that the reason for having a DUI lawyer is precisely to avoid those things
• Learn about the Michigan DUI process yourself
• Drive them, if needed
• Note that most of the scary-sounding penalties for a DUI are NOT imposed
• Emphasize that when properly managed, a DUI conviction isn’t all that bad

Should I Join AA After a DUI?

Let’s begin by noting that AA is a wonderful program, but it’s not for everyone. In fact, it’s not a good fit for MOST people. Thus, we should really reframe this question as follows:

Should I get into some kind of counseling or treatment following a DUI arrest?

The best answer is, “it depends.”

NOBODY should ever undertake any kind of alcohol or substance use counseling, community support or treatment just to “look good” for his or her DUI case. A person should only seek that kind of help when he or she genuinely wants it.

That said, a driving under the influence charge often provides an opportunity for one to examine his or her relationship to alcohol.

Our firm’s practice is almost entirely devoted to alcohol-related matters – DUI cases and driver’s license restoration appeals, which are necessary following the revocation of a person’s license for multiple DUI’s.

Because of that focus, I decided, some years ago, to return to the University classroom and complete a formal, post-graduate program of addiction studies. My team and I use that specialized knowledge every day to make things better for our clients.

Our firm certainly leans to being “recovery based.” One of the most rewarding things we do is help a client find the kind right kind of help for whatever issues he or she may have.

On the flip side, though, we also know how to avoid any unnecessary counseling or treatment for those clients who don’t NOT have any kind problem with alcohol. It makes no sense for a person to get some kind of “help” he or she DOESN’T need, or want.

In that context, real help means NOT getting what you don’t need as much as getting the kind of assistance you do.

The Role of Breath Tests in Michigan DUIs

The role of breath tests in a Michigan DUI case can be confusing, because there are 2 kinds of breath tests:

1. A PBT, or “Preliminary Breath Test” taken by a portable device on the side of the road, and
2. A formal or “big” breath test taken at a police station on the desktop (DataMaster) machine.

The PBT test results CANNOT be introduced against a person to show that he or she was driving while intoxicated. Instead, this test is usually given after the field sobriety tests to establish probable cause to make a DUI arrest.

By contrast, the formal, DataMaster breath test IS used to prove a person’s BAC (blood alcohol content). These machines must be properly maintained and undergo regular calibrations. Each police agency must keep detailed records of such maintenance.

While generally accurate, this kind of equipment can malfunction. I once had a case involving a client who provided 2 samples, one right after the other. The results were miles apart, so the officer operating the machine decided to unplug it so that it could “reboot.”

I was able to get that DUI charge dismissed.

Since COVID-19, more and more departments have been using blood tests instead of breath tests to establish a person’s BAC.

About the Author

Jeff has been a practicing Michigan criminal lawyer, DUI attorney and driver’s license restoration lawyer for more than 30 years. He is passionate about winning and doing whatever it takes to accomplish that. He understands that a pending criminal or DUI charge is stressful and that being unable to legally drive is a huge problem.