DUI Offense Court Procedure – Step by Step

This article will seek to provide a summary of the litigation of a criminal misdemeanor operating under the influence of alcohol offense. The procedure for a felony in Michigan is somewhat different and will be the subject of another article. In general, things will go in the order presented but not in every criminal case.

Every case and manner of how it is introduced to the attorney can be different. Additionally, is written from the perspective of an expert DUI attorney who has been retained to fight a driving under the influence case. Accordingly, other attorneys may do things differently.

Also, some of these hearings may not be applicable, like a chemical test refusal hearing or a sentencing hearing (if the case gets dismissed). The following information presumes that the attorney retention has begun immediately or soon after arrest, and will begin with the Initial Client Interview.

All meetings with the client are very important, but this one is the most important. Not only does this meeting allow the attorney to gather all of the necessary information, but it also the opportunity for the attorney and the client to get to know each other.

It is important that the client get to know the lawyer as well since they will be working closely together over the next few months. The client must feel comfortable with the attorney and begin to trust them. If there is no trust, there will be a difficult relationship moving forward.

The attorney should feel free to share personal details about themselves if he/she can expect the same in return. The attorney must also obtain all necessary information to begin representation. This includes:

  • the facts of the matter,
  • family and employment history,
  • previous mental and physical health issues (which includes substance abuse issues).

Witness information and anything the client believes to potentially be important must also be taken into consideration. The attorney should be humble, not cocky or arrogant. However, at the same time, they must instill confidence in their ability to do everything necessary and expected by the client. They also must reassure them that they believe in the client’s ability to recover from their misfortune.

An arraignment is the first court appearance which is held before a magistrate or a judge. At this hearing, the defendant is first officially advised of their charges and of the rights they have in defending against them.

For instance, all persons charged with an offense have the right to be presumed innocent, the right to have a fair trial and a right to have an attorney of their own choosing represent them. The defendant is also advised of the maximum possible jail term and other penalties such as license suspensions and fines.

Finally, a bond is set in an amount that is determined necessary to ensure the defendant appears in court. It may be a cash bond or a personal bond. Often times, the bond that was posted at the time of the arrest is imposed so that no additional bond is required. However, if the magistrate discovers additional facts of importance, they may increase the amount of the bond.

They most likely will impose bond release conditions, including an order to refrain from the use of drugs and alcohol. Additionally, they will impose random or daily drug and alcohol testing.

Because of all of this, it is a good idea to have the attorney at this hearing. They can provide the magistrate with all of the necessary information and argue to ensure a reasonable bond amount and bond conditions.

It is common that courts will permit a waiver of the arraignment with an attorney’s written appearance. In which case, a personal appearance by the lawyer and defendant are not necessary.

It is important for the attorney to obtain necessary investigative information immediately. If the booking room video is not obtained within two weeks from the arrest, it will be destroyed. Often times, the booking room video holds extremely valuable information such as the recording of the entire breath test. This is critical for evaluation.

Additionally, it is important to obtain the following:

  • police in-car video,
  • police reports,
  • paramedic records,
  • hospital records,
  • breath test simulation records,
  • breath test calibration records,
  • breath test traceability records,
  • breath test maintenance records,
  • arresting and breath test operator training records, and
  • blood test analysis data from the Michigan State Police.

All of these items (if applicable) must be received and reviewed before a negotiation or discussion with the prosecuting attorney.

If a person arrested for DUI refuses the chemical test, either breath or blood, the officer will fill out a refusal form and send it to the Secretary of State (SOS). A hearing will then be scheduled to determine if there was a refusal and whether it was unreasonable. This hearing is not in court, but rather in the driver license appeal division before a hearing officer. The arresting officer must be present and testify under oath about what happened. They are then subject to cross examination by the defendant’s lawyer.

This is a good opportunity to conduct discovery and question the police officer while he is under oath. The prosecuting attorney will not be present. If the hearing officer believes there was an unreasonable refusal, they will order the driver license to be suspended for any number of months. A circuit court judge has the ability to order a hardship restricted license during the period of time.

The defense lawyer should try and negotiate this hearing anyways. The officer may not want to appear since they generally work midnights and these hearing are typically first thing in the morning. Normally, the officer would be in bed. The prosecutor has the ability to cancel the hearing and will often do so if requested. Additionally, the officer has the right to withdraw the hearing and if requested, will sometimes do so.

The hearing can also be won with a proper strategy and solid facts to demonstrate that there was a reasonable refusal. For instance, if a person arrested for driving while intoxicated asks to speak to an attorney before taking the breath test and that opportunity is not given, the refusal can be ruled reasonable and the license suspension will not be imposed.

At the Law Offices of Barton Morris, we like to establish a relationship and contact the prosecutor before the pre-trial. This is a great way to properly prepare for the pre-trial and put ourselves in a better position for negotiation. By knowing how they feel about the case or establishing what they know, or don’t know, we are placed at an advantage which is important. Walking into the pre-trial after discussing the case already is highly recommended.

The pre-trial is the next court hearing after the arraignment. At this hearing, the defense attorney and prosecuting attorney talk privately about the case and what may be done to resolve it. It is at this hearing that plea negotiations are conducted. Discussions about existing discovery or next steps can also be planned.

Sometimes, a case will resolve at the first pre-trial. However, it often is not. If an acceptable plea is negotiated, it can be placed on the record. If not, the court will schedule either:

  • another pre-trial,
  • a sentencing hearing (following a plea),
  • a motion hearing, or
  • a trial (jury selection), whichever is appropriate.

If a party seeks to present a legal argument to the court for its decision, a motion hearing can be scheduled. For instance, if defense counsel argues that the traffic stop was not legal and therefore, the case should be dismissed, this would be argued at a motion hearing. At least seven days before hearing, a written motion must be filed with the court and served upon the other side.

The purpose of a trial is for the prosecutor to prove whether a person is guilty of the crime they are charged with. If proof is not demonstrated beyond any reasonable doubt, the defendant is not guilty and cannot be tried again for the same crime. The defendant does not have to prove anything, so it is not a hearing to be scared of.

It can strategically be used in a variety of ways. If for any reason, the prosecutor cannot prove their case, obtain their witnesses, produce their evidence, or form a satisfactory foundation for the introduction of their evidence, it cannot be introduced or otherwise suppressed. It is important for the defense attorney to be creative and not scared of the process. We must embrace it and take advantage of it.

The trial begins with jury selection followed by opening statements. The prosecutor will then present their witnesses. Then, the defense lawyer will have the opportunity to question or cross examine each of them. It is the trial court’s responsibility to make sure everything is fair.

When a resolution has been reached between the prosecution and defense, a plea of guilty or no contest must be conducted before the judge. At the hearing, the defendant must do three things:

  1. Be advised of the maximum possible penalties for the offense to which the defendant is pleading.
  2. Be advised of their trial rights should they choose not to plead guilty.
  3. Admit the facts necessary to establish a factual basis.

On a DUI charge, one of these facts is the amount of alcohol consumed prior to driving. It is important that the defendant not minimize the amount if the BAC is not consistent with that amount. For instance, if a person had a BAC of .14 and the defendant states they had two drinks, it will be seen as dishonest and not taking responsibility for the offense to which they are pleading guilty.

Unless there is a complete acceptance of responsibility, there cannot be an acceptable plea and it will not be received. A plea to any alcohol related driving offense depends on the pre-sentence report and substance abuse evaluation pursuant to state law. It usually will be completed by the probation department.

A no contest plea is the same as a guilty plea, but without the need to establish a factual basis. It can only be permitted if there was a lack of memory (which as we know, happens when people become drunk).

To permit a judge to provide an individualized sentence, they often require a pre-sentence report, substance abuse assessment and recommendation prepared by their probation department. This is always done before a drinking and driving plea. Sometimes, it is required by a non-DUI plea.

The probation officer will give the defendant a form to fill out which seeks to obtain personal details like income, family, profession, and health. They will also require a written substance abuse test, which is designed to identify and diagnose a substance abuse problem. This will be followed by a personal interview, from which a report and recommendation will be created.

This report will be available for review by the defendant and his/her counsel before the sentencing hearing. We try and obtain this report at least one day before in order to properly prepare. While the circuit court will always provide the report at least two days before the hearing, some district courts may not.

The sentence will be imposed at the sentencing hearing. First, the court will inquire and ensure that the defendant had the opportunity to review the pre-sentencing report. They will then ask if the defendant had any corrections or additions to the report. After the report comments, the defendant’s counsel will have the opportunity to make all appropriate comments.

The defendant will then have the opportunity to make their statement, which is important. Counsel for the defendant should prepare them for what to say. The defendant’s statement can be impactful and meaningful, with a small amount of advance preparation.

If a probation sentence is served without any issue, a motion to terminate probation early is often granted. One should be filed approximately six months after the sentencing date. There should be no violations; all fines/costs should be paid, and community service completed as soon as possible.

The Law Offices of Barton Morris offer free case evaluations. Schedule an appointment with one of our drug crimes attorneys in Royal Oak by calling (248) 541-2600.

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