What To Do If Arrested For A DUI In Michigan Neil A. Davis, PLC
ARRESTED?

Once you are arrested, it is essential you contact an attorney immediately. A lawyer can protect you from making statements to police or witnesses that could later be used against you. Also, your attorney can then start his/her investigation into the case while witnesses' memories are fresh and evidence is more readily accessible.


Say Nothing To The Police & Demand An Attorney

It is your constitutional right to remain silent. Use it. As most of us know, "anything you say can and will be used against you." This type of evidence can sometimes be very difficult to overcome and the police know this. They will use many tactics to get people to talk including threats of charging you with additional or more serious crimes. Sometimes the police will play the "good cop" role and act friendly and sometimes even joke around with you to put you at ease in the hope you will begin talking. Don’t fall for this. You have too much at stake to make any statements at all. Your only response should be to politely tell the police, "I want a lawyer."

BOOKING & BOND

When a driver is first arrested for drinking and driving, he or she is required to stay in jail from 4 to 24 hours, depending on the blood alcohol level. Once arrested, fingerprints will be taken as well as a photograph or mug shot. The defendant will be brought before a magistrate judge to determine the amount, if any, of an initial bond to ensure the defendant will appear for all further court proceedings. The amount of the bond is required by the Constitution to be in accordance with the severity of the crime. Minor crimes will generally have little or no bond amounts while serious crimes may require a significantly high bond. In establishing the amount of the bond, the court will also consider whether the defendant is at risk of fleeing and whether the defendant is a threat to the community.

ARRAIGNMENT

Once an arrest warrant is served, the defendant will be arraigned in either District Court or Circuit Court depending on the nature of the charges.

District Court

A Defendant will first appear in the District Court for the jurisdiction in which the offense occurred for any misdemeanor or felony. Once charged and arrested, the defendant appears in the District Court for arraignment where he/she is advised what the charge(s) is (are) and the maximum penalty if convicted. The Defendant will also be told about his constitutional rights to a jury or bench trial, appointed attorney, presumption of innocence, etc. The charging document is called a Complaint. The conditions and amount of bond are again determined with respect to a Defendant’s release pending trial. All further pre-trial procedures are determined by whether the defendant is charged with a felony or misdemeanor:

Misdemeanors

Most people charged with drinking and driving for the first time are charged with a misdemeanor which is generally punishable by a maximum jail sentence of up to 93 days. At a misdemeanor arraignment, the defendant will be given a chance to enter a plea to the charge(s): 1) Guilty, 2) Not Guilty, or 3) Stand Mute (remain silent, which is treated by the court as if the defendant pled not guilty). If a Defendant pleads guilty, the Judge may sentence the Defendant at that time or may reschedule the case for a sentencing date, which will give the probation department time to prepare a pre-sentence report including background information about the defendant and the crime and any concerns about Defendant’s alcohol and/or substance use or abuse. Following that investigation, the probation department will make a sentencing recommendation and a sentencing hearing will be held before the judge at which time he may adopt the sentencing recommendation or deviate from it in accordance with the law and what he/she believes is proper for the case.

Felonies

Three or more drinking and driving convictions will generally result in felony charges against a Defendant. At a felony arraignment in District Court, the defendant does not plead guilty or not guilty. He is advised of his right to a preliminary examination within 14 days of the arraignment. The court reviews requests for court-appointed attorneys at the arraignment.

At a Preliminary Examination, The Prosecutor presents witnesses in an effort to convince the Judge that there is probable cause to believe that a crime was committed and that the defendant committed the crime. Because the burden of proof is much less than at a trial, the Prosecutor generally calls the victim, eye witnesses and some of the police witnesses to testify. The defendant, by himself or through an attorney has the right to cross-examine the witnesses, and can present his own evidence (including witnesses). If probable cause is proven, the defendant is "bound over" (i.e., sent to) Circuit Court for trial. If probable cause is not proven, the felony charge can be dismissed or reduced to a misdemeanor for trial in District Court. A defendant can also decide not to have a Preliminary Examination at which time, the case is sent to the Circuit Court for arraignment.

Circuit Court

After the case is sent to Circuit Court, the defendant is again arraigned (given formal notice of the charges against him or her with a charging document called an Information. He or she is again advised of his/her constitutional rights, and enters a plea to the charge (guilty, not guilty or stand mute).


PRETRIAL PROCEEDINGS

Pretrial Conference

In traffic and non-traffic misdemeanor cases, this is the defendant's second court appearance. It is a scheduled meeting between an Assistant Prosecuting Attorney and the defendant (or his attorney) to determine whether the case will go to trial or be resolved with a plea. These meetings focus on resolving the case short of trial. The Judge and witnesses are not involved in misdemeanor pre-trial conferences. If a plea bargain is going to be offered by the Prosecutor, it is done here.

Hearings / Motions

Depending on the nature of the case, there may be pre-trial hearings on Constitutional issues such as the ability to use evidence from searches or confessions. The judge must determine whether evidence will be admitted or suppressed at the defendant's trial, whether there is some legal reason why the defendant should not be tried, or decide other ground rules for trial.

Discovery

Discovery is the exchange of information in the possession of law enforcement or the prosecuting attorney about the facts of the case and which must be revealed to the defendant and his attorney. Examples are any statements that the defendant made to law enforcement or the criminal record, if any, of the accused and any and all "exculpatory" evidence. Exculpatory evidence is evidence that tends to prove that the defendant did not commit the crime or any evidence that witnesses have changed their story. An example of exculpatory evidence is if the prosecuting attorney has a videotape that contradicts a witness statement. If such a videotape exists then the prosecutor is required to turn that over to the defense. This is to help ensure that justice is done.


TRIAL (Jury or Bench / Judge)

A trial is an adversary proceeding in which the Prosecutor must present evidence to prove the defendant's guilt beyond a reasonable doubt. The defendant is not required to prove his or her innocence or to present any evidence, but may challenge the accuracy of the Prosecutor's evidence. Both the defendant and the Prosecutor (representing the People of the State of Michigan) have the right to a trial by a jury. Sometimes, both sides agree to let a Judge listen to the evidence and decide the case without a jury; this is called a "bench trial". In a jury trial, the jury is the "trier of fact"; in a bench trial, the judge is. After the evidence is presented, the judge or a jury will determine whether the evidence proved that the defendant committed the crime. If the judge or jury decides the Prosecutor has not met its burden of proof beyond a reasonable doubt, the Defendant will be found "not guilty" of the charges. If the judge or jury decides the Prosecutor has proved its case beyond a reasonable doubt, the Defendant will found guilty and a sentence imposed.

SENTENCING

Pre-Sentence Investigation and Report

If a plea agreement has been reached or a Defendant has been found guilty of the charges brought against him/her, the court's probation department prepares a report for the judge summarizing the crime, and the defendant's personal and criminal backgrounds. Generally, the victim is also contacted for a recommendation of sentence. The probation officer concludes the report with a recommended sentence.

Sentence

Sentencing in Michigan varies with the crime and can be very confusing. Usually, the sentences are at the judge's discretion and at the time of sentencing, the judge will consider the information in the pre-sentence report before determining the sentence. At the hearing, factual errors in the pre-sentence report can be corrected and additional evidence offered to assist the judge in his or her sentencing decision. For certain felony crimes, the judge will consult the "sentencing guidelines" (established by the Michigan Supreme Court as a reference for framing an appropriate sentence throughout the state, considering factors of the crime and the defendant's criminal background) to determine the minimum jail/prison sentence. The judge may consider different alternatives, such as a fine, probation, community service, a sentence to jail or prison, or a combination. The judge must also order the defendant to make restitution to any victims who have suffered financial harm.

APPEALS

Appeals from the District Court are heard in the Circuit Court while appeals from a Circuit Court or Probate Court order are heard in the Michigan Court of Appeals. Appeals from Court of Appeals decisions are heard in the Michigan Supreme Court.
There are three kinds of appeals:

1. Interlocutory appeal: Attempt to appeal a judge's decision before the case has come to trial or before a trial is finished.

2. Appeal of right: Right to appeal after a final order has been entered by the trial court (either a sentencing order, or an order dismissing the charge). Most appeals of right focus on the sentence imposed because most appeals of right have been eliminated when a defendant pleads guilty.

3. Appeal by leave of the court: Attempt to appeal when an appeal of right is not available (e.g., because an available appeal of right was not filed on time). The appellate court does not have to hear this type of appeal but can by "granting leave."

In an appeal by right or if the appellate court grants leave to appeal, the defendant and Prosecutor file briefs that summarize the case facts, frame the legal issues to be decided, and present persuasive written arguments (supported by constitutional, statutory or prior case decision authority). Either party can request that the case be scheduled before the appellate court judges for oral argument. The appellate court will eventually issue a written opinion which will either affirm the final order, reverse it or remand (send back to the trial court) for further proceedings.