LEGAL GUIDE
Written by attorney Jonathan Andrew Paul | Apr 28, 2017

Drunk Driving Felony Third Offense Washtenaw County 22nd Circuit Court Ann Arbor Attorney

OWI Third Offense - Washtenaw County

Jennifer - 35 Years - Drunk Driving Third Offense

Our client Jennifer was pulled over for speeding in downtown Ann Arbor by the Ann Arbor Police Department, and upon further investigation, was suspected of drunk driving.

Jennifer refused to take all field sobriety tests, refused the preliminary breath test, and when driven to the station refused to take the DataMaster test. We will get into greater detail on drunk driving cases later in this book, but for purposes of this example, Jennifer was then brought to the hospital where her blood was drawn, and then was released from custody once she no longer had alcohol in her system.

In Michigan, blood results, even in felony cases could take weeks or months to determine, so the police department simply keeps the client in custody until their blood alcohol level reaches 0.00. The client is told that charges will be issued pending the results of the blood test.

During this time, Jennifer is strongly advised to contact attorney because of Implied Consent Issues (more on this later), and she should begin a proactive program during this waiting period. It is quite rare that the blood results come back below the legal limit, and even if they do, most prosecutors will still charge the case under the theory of retrograde extrapolation (more on this later).

This example is different than Michael’s example above, because Michael was kept in custody to see a judge the next morning, because the police had enough evidence to issue the charges immediately. Things happened quickly for Michael and he had to act immediately. His case was processed immediately, and he may had three to four court appearances within a month.

In Jennifer’s example, she is likely to wait at least a month before anything happens. In her case, the police are waiting on results, and once they get them back, the case will be submitted to the Washtenaw County Prosecutor’s Office for review and warrant. Let’s assume the blood results come back at 0.11, and the prosecutor identifies two prior drunk driving offenses (more on this later). Jennifer will be charged with Operating While Intoxicated - Third Offense, which is a felony in Michigan.

In our case, Jennifer was smart to hire an attorney immediately who protected her Implied Consent rights (more on this later) and kept her driver’s license appeal rights alive, and her attorney has been tracking her case everyday to see if a warrant has been issued. If Jennifer had not engaged an attorney immediately, her license would likely be gone for at least the next year with six points on her driving record without even being charged with a ctime. Even more, she would likely have been arrested at her home, at work or while driving around for having an active warrant out for her arrest.

Because Jennifer hired an attorney, that attorney was able to track the case and determine that a warrant was issued. Jennifer and her attorney would schedule what is called a walk-in arraignment at the 14A-1 District Court, and was able to avoid the embarrassment of an unsuspected arrest.

At this point Jennifer has been following her attorney’s proactive program for weeks, has alcohol testing in place, and is already in counseling and attending AA meetings. When Jennifer appears before the judge to voluntarily cancel the bench warrant with a proactive plan in place, she is likely to receive a personal bond, and continue what she is already doing in terms of testing and counseling during the case.

Jennifer, like Michael will now proceed down the same path of various court dates, with the same options on the table. Jennifer’s example ended up being similar to Michael, because she was aware of the warrant immediately and went to court with her lawyer. Without taking this approach, Jennifer was likely to be surprised by the warrant, and arrested during a minor traffic stop. Jennifer would be brought in front of the judge as a fugitive, who was running for the law (whether true or not). She is likely to have to post a significant monetary bond for her freedom, and will likely spend weeks in the Washtenaw County Jail with a pending case. She will not be afforded the luxury of calling a timeout on her case, because she is not free to work, take care of her kids and family, and she simply wants to sprint to some kind of result in her case, because she is desperate to get out of jail.

We explored all of the options beyond the Arraignment for Michael; those same options will apply to Jennifer. Let’s assume in this example, the Preliminary Examination is held in Jennifer’s case, because the prosecutor is not willing to make any plea offense, and Jennifer and her attorney were not willing to waive the Examination. After hearing the evidence, the judge decides to bind the case over the Washtenaw Circuit Court. In Washtenaw County, the judge will tell you when your first court date will be at the Circuit Court and confirm the judge handling the case.

Now that we’ve made it to the Circuit Court with Jennifer’s example, the case is usually set out about a month or two after the last court date at the 14A-1 District Court. The name of the first court date is a Pretrial; there is no testimony, trial, guilt or innocence determination or anything other than somewhat of a status update on the case. Your attorney and the prosecutor handling the case have likely had some conversation about the case before court, and this court date is to bring the judge up to speed on things.

The 22nd Circuit Court feels more formal, because it is; serious felonies are handled in this building and the stakes are higher. Depending upon which judge is assigned to your case, your attorney will check-in with the court staff, and the cases are called on a first-come first-serve basis with limited exceptions. Your attorney should be motivated to be one of the first attorneys to arrive so they can garner the full attention of the prosecutor when they arrive, and have first crack at speaking to the judge.

At the Pretrial, your attorney is likely to “approach” the judge with the prosecutor and have a conference “off the record”. The conversation is quite useful to all parties as both the attorneys and the judge can speak a bit more directly about things without being part of the public record. Common topics are setting a case for trial, a motion or evidentiary hearing, requesting an adjournment or working out a sentencing agreement with the judge.

Once a case is at the felony level at the 22nd Circuit Court, a reduction down to a misdemeanor is quite rare, so a client is faced with filing motions to have the case dismissed, going to trial or pleading guilty or no-contest, but with a sentencing agreement in place. At the felony level, prison time is on the table along with a strong likelihood of jail. You and your attorney may set a goal to avoid prison time or jail, and be granted probation. This off the record conversation can test those waters with the judge, and possibly gain an agreement with the judge and prosecutor on the sentence. It’s also for an opportunity for Jennifer’s attorney to tell the prosecutor and the judge about her progress on the proactive program she started weeks or months ago.

Depending upon the charge, the client’s criminal history and the judge, the case can now go in a number of directions. Here are the different directions:

Option #1 - After an extensive review of the evidence and the options in the case, Jennifer decides she wants to avoid a lengthy prison or jail sentence, and her attorney at this first Pretrial works out a sentencing agreement with the judge. From here, the judge would take Jennifer’s plea of guilty or no-contest, and the case would be set for Sentencing in about four to six weeks. The client will be interviewed by probation before Sentencing and Jennifer’s final court appearance would be her next appearance.

Option #2 - Progress is made at the first Pretrial, but there are additional issues to sort out, and an adjournment is sought where all parties agree to come back a few weeks later. The next court date will also be called a Pretrial.

Option #3 - Either after one or multiple Pretrial conferences, a case can be set for a Motion Hearing where the parties will submit motions and briefs to the Court for review of various issues. A common motion to file would be a Motion to Suppress Evidence, where Jennifer’s attorney has identified an issue in the case where a good argument can be made that some evidence was illegally seized and the judge could suppress the evidence, which could lead to a dismissal of the entire case. Sometimes a judge will determine that not only a motion needs to be filed, but testimony needs to be heard by the court with an Evidentiary Hearing

Option #4 - Assuming that Jennifer has not resolved her case with Option #1, and she never elected Option #3 or the case was not dismissed after exploring that option, Jennifer is now faced with electing to go to trial on the charges. In Michigan, Jennifer is entitled to a bench or jury trial on the charges. She will either be found guilty or not guilty at trial. If there are more than one charge, you can be found guilty or not-guilty on some or all of the charges. If found not-guilty on all charges, the case is over; if found guilty on at least one charge, the case will be sent for Sentencing where the judge will determine the sentence. For felonies in Michigan, this could be prison, jail, probation, a mix of these or none at all.

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