The number one biggest mistake that a person charged with drunk driving can make is to assume right from the start that there is no defense.
DUI Disposition Options
There are basically three ways to resolve a DUI case. These are plea-bargaining, trial or dismissal. We will discuss your best option with you ONLY after we have completed a through evaluation of your case, and this means reviewing ALL available discovery. We will not take EVER allow you to plead guilty to the charge of drunk driving, or even impaired driving, unless and until we have engaged in complete discovery, and we’ve reviewed the state’s case with you and discussed with you all of your options.
If you are convicted of a DUI/OWI or any type of drunk driving charge, then here are some things to know about sentencing:
2.0 Judicial perceptions - As with jurors and the lay public, the judiciary can be influenced by the negative portrayals in the media. The judiciary is also exposed to a potentially large volume of information provided directly to them by law enforcement, as well as by political action committees that are staunchly anti-drunk driving, most notably, Mother’s Against Drunk Driving. (MADD). This makes the judiciary potentially susceptible to being influenced by what might, upon closer scrutiny, turn out to be highly skewed statistics, data and conclusions. This information is often provided as a “public service” by these organizations, and is ostensibly based on verifiable and objective scientific research.
In this legal and social environment zealous advocacy requires that the practitioner shift the focus of Judge away from the political and social issues to instead be squarely placed on the factual and legal issues of your client’s case.
2.1 General requirements for lawful sentence - The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitation potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. “A judge needs complete information to set a proper individualized sentence." People v McFarlin, 389 Mich 557, 574 (1973).
2.1.1 Factors to be Considered in Determining an Appropriate Sentence - (1) the reformation of the offender; (2) the protection of society; (3) the disciplining of the wrongdoer; and (4) the deterrence of others from committing like offenses. People v Snow, 386 Mich. 586 (1972). The sentence must also be “proportional”.The judicial sentencing guidelines represent the actual sentencing practices of the judiciary, and the second edition of the sentencing guidelines is the best "barometer" for determining whether the trial court has violated the principle of proportionality and thus abused its sentencing discretion. People v Milbourn, 435 Mich 630 (1990).
2.2 Misdemeanor Offenses - While the sentencing guidelines have no applicability to misdemeanor offenses, there are other considerations relative to what is an appropriate sentence for the individual offender. An analysis of an individually appropriate sentence begins with a review of the statutory minimums that apply, as well as a review of the statutory maximum sentence. The Snow factors, supra, also apply, and should be brought to the court’s attention. Ideally this will be in the form of a sentencing memorandum setting forth why a minimum sentence is appropriate in your client’s case.
2.3 Felony Offenses - Unlike misdemeanors, felonies are specifically subject to the sentencing guidelines, and all drunk driving felonies carry mandatory periods of incarceration. trial court must adhere to the sentence ranges prescribed by the legislative sentencing guidelines; thus, a judge’s discretion in departing from those ranges is limited to the legislatively prescribed circumstances for a departure. People v Hegwood, 465 Mich 432, 438-439; 636 NW2d 127 (2001). A trial court may not base its departure on a characteristic of the offense or of the offender already considered by a defendant’s OV and PRV scores unless the court specifically finds from the facts on record that a disproportionate or inadequate amount of weight was given the characteristic. MCL 769.34(3)(b); People v Hornsby, 251 Mich App 462, 474;650 NW2d 700 (2002). A trial court must make an oral record at the defendant’s sentencing of the substantial and compelling reasons for departure, and the court must also make a written record on the appropriate form of the reasons stated at the sentencing. People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987).
2.4 Enhancement using prior convictions - MCLA § 257.625(8) provides for enhancement to a second offense for those offenses committed within 7 years after a prior conviction, or for a new offense within one’s lifetime after 2 or more prior convictions. A determination of whether or not enhancement is appropriate first requires a determination of what a conviction is, and when the conviction occurred. The Michigan Supreme Court has answered this question unequivocally: "The conviction is the finding of guilt. Sentence is not an element of the conviction but rather a declaration of its consequences." People v Funk, 321 Mich 617, 621; 33 NW2d 95 (1948). See also People v Bettistea, 181 Mich App 194, 199; 448 NW2d 781 (1989). Thus, the conviction occurs either when the defendant pleads guilty or is found guilty by the Judge or jury.
2.5 Other sentencing issues - expunged convictions and assignment to HYTA status are specifically included within the definition of "conviction" and are scored as prior convictions. Adjudications set aside under MCLA 712A.18e or expunged are specifically included within the definition of "adjudication" and are to be scored as prior adjudications. MCLA 777.50; MSA 28.1274(60). The guidelines definition of a "conviction" does not include charges which are dismissed after a probationary period without a sentence being imposed for a controlled substances offense, MCLA 333.7411; MSA 14.15(7411), parental kidnaping, MCLA 750.350a; MSA 28.582(1), and domestic violence. MCLA 769.4a; MSA 28.1076(1). The definition of "delayed sentence" status for purposes of PRV6 - Relationship to the Criminal Justice System, expressly includes but is not limited to assignment or deferral of sentence pursuant to those statutes as well as the Holmes Youthful Trainee Act. MCLA 762.11 et seq; MSA 28.853(11) et seq. MCLA 777.56; MSA 28.1274(66).
2.6 Use of out of State convictions - in order for a prior out-of-state conviction to be use, it must be “substantially corresponding”to the Michigan Statute. For example, where the Wisconsin OUIL conviction was based on a law "substantially corresponding" to Michigan's law, its use for sentence enhancement purposes was permissible. Johnson v Secretary of State, 224 Mich App 158 (1997).
2.7 Calculation of time periods - for sentencing enhancement periods, the anniversary dates are calculated from date of prior conviction to date of new arrest. For driver license sanctions, the anniversary dates are calculated from date of prior conviction to date of new conviction. See People vs. Vezina, 271 Mich App 148, 550 NW2d 613 (1996). Thus, in some instances it can be advantageous to dely the imposition of the current conviction because this will avoid a more serious driver license sanction.
DUI & OWI Info
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