Articles Posted in DUI Trials

Barone Defense Firm Obtains Not Guilty on Troy Michigan Drunk Driving Jury Trial

The Barone Defense Firm is proud to announce a recent not guilty verdict on a Troy Michigan drunk driving case.  The Barone Defense Firm Trial Attorney who handled the case was rising super-star Ryan Ramsayer.  Here is  Mr. Ramsayer’s synopsis of the case, including a summary of the not guilty trial:

Our client’s case arose out of Clawson, Michigan.  The Troy District Court, a/k/a, the 52-4 Judicial District Court, is the court having jurisdiction over Clawson Michigan.  There are two judges in Troy, the honorable Kirsten Nielsen Hartig and the honorable Maureen M. McGinnis, and Judge McGinnis presided over this jury trial.

As with all cases and clients at the Barone Defense Firm, while simultaneously preparing the case for trial, we attempted to avoid trial by engaging in plea negotiations with the prosecuting attorney.  Despite Mr. Ramsayer’s best efforts to avoid trial, the arresting officer and prosecution would not offer less than an impaired.  Our Client (hereafter BH, client’s initials used only so as to protect client confidentiality), had to then make the decision of whether to plead guilty take his case to trial.  BH looked at the difference in penalties and decided that the trial was his best option.  BH works in the auto industry setting up factories for production.  For the last year he had been away most of the month in Spring Hill, TN or Buffalo, NY.  His biggest fear, outside of driving, was that he had to go through Canada to get to Buffalo.  Also, they have a factory in Canada that he could eventually be required to work at.  To add extra intrigue, BH just found out that his wife is pregnant while this case was going.  This complicated his decision because he knew that an OWI conviction would make it difficult to impossible to get into Canada, and so he knew if he was convicted he would probably lose his job.  This meant there was a lot riding on the outcome of this trial.

Am I Eligible for Sobriety Court?

Many courts throughout Michigan employ an alternative form of sentencing for drunk drivers that emphasize treatment over punishment. Collectively, this approach to sentencing is called sobriety court.  Such courts utilize a 2011 Michigan statute codified in Michigan Compiled Laws § 257.304.  This law established new procedures and sobriety court participation provides advantages not available with traditional sentencing.  Eligibility to participate in a sobriety court program varies depending on the location of your arrest and the court where your case is presiding. Sobriety courts are only available to repeat offenders arrested after 2011.  Some courts also impose residency requirements, meaning the offender must live within the jurisdiction of the court.

Sobriety courts are not available in all jurisdictions. The admission into sobriety court is at the discretion of the Judge presiding over the sobriety court. You will only be admitted into sobriety court if you are able to demonstrate a strong commitment to sobriety. If you are considering sobriety court it is best to discuss the specific requirements of your court with your lawyer.

In the sobriety court environment, the judge unofficially acts as a recovery group facilitator.  In addition to the judge, who presides over the official sobriety court sessions, you will also be involved with someone from the prosecutor’s office, a defense advisor, one or more probation officers, including the probation supervisor, and a variety of treatment providers.  All of this takes place in a non-adversarial context and is far less formal than typical court proceedings.  Most of the courts that use this model require a minimum of 18 months of supervision.  The intensity of the probation, including the amount of alcohol and drug testing, support meetings, etc., is greatest at the beginning of the probation period and is gradually reduced as you demonstrate your ability to stay in compliance with the terms of your probation and have demonstrated the ability to maintain your ongoing sobriety.

Misdemeanor and Felony Procedures in a Michigan DUI/OWI Case

After you’ve been arrested for DUI/OWI in Michigan the next step will be for the arresting officer(s) to prepare a narrative written police report, including any supplemental discovery materials. Depending on the nature of the office, this report and investigation will include a description of the basis for the initial police contact, usually a traffic stop, a description of the entire roadside investigation, including your performance on any field sobriety tasks, the results of any chemical tests, copies of any search warrants, one or more video recordings, and copies of any witness statements.  If there was an accident, and injury or death occurred, then the police reports may include an accident reconstruction, medical records, and the coroner’s report relative to cause of death.

Once these reports and materials have been signed off on by the senior officer in charge, they will be forwarded to the prosecuting attorney.  At this time the prosecutor will review your prior record, and the facts of the case, to determine what charges should be issued.  If you were issued an appearance ticket, these final charges may or may not be the same.  The prosecutor will then prepare an arrest warrant which will be issued by the court, and this, or the appearance ticket, will start the court-related steps.

The first court-related step will be the arraignment. The purpose of the arraignment is for you to appear before the court and learn of the charges you are facing.  The court will also set your bond, including any conditions to your bond. Provided you can make bond, you will leave the courthouse with a new date to appear.  At this point the steps will depend on if you are charged with a misdemeanor or felony.

How Much Will a DUI Lawyer Cost?

There is at least a ten-fold difference in the amounts Michigan lawyers charge to handle a first offense drunk driving case. Fees usually start at around $1,500.00 for a newer less experienced lawyer.  From there, fees increase to as much as $15,000 – $25,000.00, including trial, for a top DUI lawyer.  Where death or serious injury is involved, fees can be even higher.

With such a wide range of fees you may wonder if it is worth spending more to hire a great lawyer?  For some people the answer is clearly yes while for others the answer is more elusive.  Either way, it’s a personal decision that depends on many factors. Before making the investment in a top DUI lawyer, you may wish to consider the following questions:

Is the Lawyer Available to Answer my Questions? If you’re spending a lot of money for a lawyer then you should expect plenty of communication.  Facing a criminal charge can make you feel like you are standing on the edge of an abyss staring into the great chasm of the great unknown.  Your attorney will be your guide helping to bring order into the chaos you are facing. Consequently, when needed, you should have an easy ability to contact your lawyer without delay or hassle.  No lawyer is going to be forever available, and consideration should be given for time spent in court and handling other client’s cases.  Nevertheless, you should expect to be in contact within a reasonable amount of time under most circumstances.  A good way to determine if the lawyer you’re considering will be good with communication after you’ve paid them is to start paying attention from the first time you contact the Firm.  You will begin to get a feel of how important communication is to the lawyers and staff involved. Consider such things as whether a person answers the phone, or it goes to voicemail; does your attorney provide a cell phone number to call or text; how much time does it takes for someone to get back to you for an initial consultation; how much time does the attorney give you in the initial consultation, before you’ve even paid them. If communication seems labored or difficult, then this is a warning sign that will lead to an increase in stress as your case moves through the system.

The Steps in a Michigan DUI/OWI Case

This article covers only the steps in DUI/OWI case that take place in court after a lawyer has been retained.

The first step in a Michigan drunk driving case is an arraignment on the warrant, ticket, complaint or information.  At the arraignment, a plea of not guilty will be entered on your behalf and the judge or magistrate will set a bond. Your case will then be set for a pretrial.

A pretrial conference or hearing will occur at your next appearance in court which is usually roughly three or four weeks after the arraignment.  Depending on the court and the prosecutor this may be the first time your lawyer can review all of the evidence against you. You will have four choices at a pretrial, and your lawyer should discuss them with you prior to the pretrial conference so that you know what to expect and how to proceed.  The four choices are to request a continuance or adjournment, in which case the pretrial date will be reset for some day in the future, to set the matter for a motion or evidentiary hearing, to set the matter for trial or to plead guilty.  The typical outcome of the first pretrial is an adjournment because your attorney’s investigation of your case will be incomplete. Once all evidence has been received, then at the next pretrial your lawyer will either set the matter for a motion and evidentiary hearing, set the matter for trial, or you will be pleading guilty.

Understanding the Arraignment Process after a Michigan DUI/OWI

The arraignment is the first court hearing that will take place after a Michigan DUI/OWI arrest.  This hearing can take place before a judge or magistrate, and in some courts, can be waived.  The purpose the arraignment is to inform you of the offense charged.  The court rule covering arraignments in Michigan is found at MCR 6.104, which indicates in part as follows:

(E) Arraignment Procedure; Judicial Responsibilities. The court at the arraignment must

(1) inform the accused of the nature of the offense charged, and its maximum possible prison sentence and any mandatory minimum sentence required by law;

The Misleading Concept of Alcohol Tolerance in Michigan DUI Cases

Many judges, prosecutors, and defense attorneys have mistaken beliefs about alcohol tolerance.  In a drunk driving trial, these mistaken beliefs can lead to misleading arguments which might further lead to wrongful convictions.  A recent article from the peer-reviewed science journal article Psychopharmacology[i] helps support a defense lawyer’s attempt to preclude a wrongful conviction based on these misleading arguments.

Generally speaking, most drunk driving trials include observations of the police leading up to the arrest and a subsequent breath or blood test, generically called a “chemical test.”  Therefore, winning a drunk driving trial requires reasonable doubt as to both.

Issue With Alcohol Tolerance

There are many ways to approach the defense of a drunk driving crime, and a defense should always be matched to the facts and science of a particular case.  However, one way to explain to jurors that there is a reason to doubt the chemical test is to show that there is a disparity between the breath or blood test result and the physical and mental condition of the driver.  This might occur in cases where the driver performs well on the field tasks, such as the one-leg stand or walk and turn.  This evidence, usually collected at the roadside, is often referred to as the “observational evidence.”

I Was Arrested for Drunk Driving, Should I go to AA?

If you were arrested for drunk driving in Michigan, then going to Alcoholics Anonymous, or AA, may help your case.  But that is only one reason to go AA, and probably not the best one.  You and your Michigan OWI lawyer should discuss this question in collaboration with a mental health professional.

From a purely legal standpoint, meaning from only a lawyer’s perspective, the question should be whether the judge hearing your case will treat you differently, and better, at sentencing because you’ve started attending AA on your own.  The reason a judge might be more lenient is because it helps show that you are self-motivated, acting a responsible way, and are in all other ways a candidate for rehabilitation instead of in need of more severe punishment.  Rehabilitation in this context usually means probation instead of jail time. If you decide to begin to voluntarily go to AA, or if you are ordered by the court to go to AA, then make sure you collect signatures each time you go, using an appropriate AA sign in sheet.

However, AA is only part of the rehabilitation equation, and this is where the therapist comes into the equation.  Keep in mind that a single drunk driving arrest does not, itself, prove that you are an alcoholic.  On the other hand, from multiple drunk driving arrests, a different picture may emerge.  This is because arrests resulting from the use of alcohol is one of the diagnostic criteria used by therapists to diagnose a substance use disorder.  This diagnosis is usually contained in a substance use assessment (SUA) or substance use evaluation (SUE). For more information on this, see the Michigan Criminal Defense Lawyer’s Guide to the DSM-5 for Substance Use Disorders that appeared in the November 2016 SADO Criminal Defense Newsletter.

What it Means to “Operate” a Vehicle In the Context of a Michigan DUI Charge

In some situations, the police can charge you with drunk driving in Michigan even if the police never saw you driving your car.  However, the legal analysis in these cases is very fact specific, and the law is quite complex.  In some situations, courts have upheld convictions when the police never saw anyone operating the car. But in other cases, courts have held there was no operation.  To understand why this difference exists, and why a court might allow such a non-witnessed drunk driving case to stand, you need know a few things about the drunk driving laws of Michigan.

To begin with, the crime of drunk driving is called OWI or “operating while intoxicated.”   Michigan does not use the word “drive” so Michigan’s drunk driving law is not called driving under the influence (DUI), or driving while intoxicated (DWI).  The word operate is much broader than the word drive. The Michigan Motor Vehicle Code defines “operate” or “operating” as “being in actual physical control of a vehicle” whether licensed or not. MCL 257.35a. Thus, the plain language of the statute requires that driver’s actions must establish “actual physical control” of the vehicle.[i]   But the analysis doesn’t end there.  What happens for example if a person is asleep or unconscious?

A question sometimes raised in this context is whether a sleeping or unconscious driver can be found to be in “actual physical control.”  In these cases, which often have unique facts, the Michigan Supreme Court has expanded the term “operation” such that ‘operating’ is defined in terms of the danger the OUIL statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property. Accordingly, “[o]nce a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.”[ii]

What is the Difference Between a Question of Law and a Question of Fact?

The short and simple answer is that questions of law are for the judge to decide whereas questions of fact are for the jury to decide.  However, while technically correct, this short answer is incomplete.  Especially if you are charged with a crime like intoxicated driving.

As with any other crime in Michigan, if you are charged with intoxicated driving, then you have an absolute right to a jury trial.  You have this right regardless of whether the intoxication is allegedly caused by alcohol, marijuana, or some other drug.

Because this right is yours and no one else’s, it will be up to you, not your lawyer, to decide if you want a trial in your case. However, in making this decision you will need to discuss your case with your lawyer, and then decide if you should plead guilty or whether a trial is in your best interest.  As part of this discussion, it may be helpful for you to understand the role a jury plays in a trial; and that role is to be the finders of fact. In a jury trial, this principle is set forth in standard Michigan Criminal Jury instruction 3.1 as follows:

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