Written by attorney Jonathan Andrew Paul

Oakland County DUI Attorney Third Offense - Preliminary Examination 101 Drunk Driving

If charged with a felony DUI in Michigan, your case will begin at the district court level with a preliminary examination. This would be a third offense or more, or a case, which caused serious bodily injury or death.

If charged with a felony, you are entitled to this hearing within 21 days of your arraignment, but can waive this timeframe if you wish to invest more time in conducting discovery, or working a proactive plan in order to open up some options for resolution.

A preliminary examination is put in place to “test” the evidence before the case can go to the circuit court level. The “test” is probable cause; is it probable based on the evidence that a crime was committed, which is named in the information, and is this the person that probably committed it. This is not a test of guilt or innocence, but a safeguard put in place to make sure that someone is not charged based on very thin or problematic evidence.

If there is enough evidence your case is “bound over” to the circuit court. This can be done by holding the examination and having the judge weigh the evidence, or both sides can agree to a waiver.

Many innocent people are “bound” over, because in DUI cases, there is usually enough evidence that it is probable the person arrested broke the law in some way with alcohol or a controlled substance.

For example, there may be evidence that the Defendant tested over the legal limited or had marijuana in their system when driving. That would make it probable that a crime was committed, but not quite guilty. This book is filled with defenses to cases where the Defendant “looks guilty”.

So how do you beat the case at preliminary exam? You can beat the case in two ways. An outright dismissal of charges, or a reduction down to a misdemeanor.

First, outright dismissal is rare for a DUI case, because there will usually be some triable facts, which are better resolved at trial, but what if there is concrete evidence that the Defendant was not the driver? What if it turns out that the roadway, which the Defendant operated was not open or accessible to the public? What if the traffic stop was bogus and the officer lacked a legal reason for conducting a traffic stop? These, and many other situations could lead to a dismissal.

Second, a limited number of counties in Michigan will consider dismissing a felony DUI case, and reducing in down to a misdemeanor. This is a possibility if the current charge is a “true third” meaning you’ve only had two prior offenses.

It helps if the priors are deeper in the past, and not recent, and if the BAC number is somewhat on the lower end of the spectrum, and there was no accident.

I’ve been able to have a lot of felony DUI cases dropped to misdemeanors, but those particular cases had clients who worked their butt off on my proactive program, and were willing to make major commitments to sobriety including daily testing, intensive treatment, and sometimes sobriety court or jail alternative programs like Impact Weekend.

If the case is reduced down to a misdemeanor then it will be handled at the district court level, because a felony is now off the time table along with prison time. A judge will still consider your past offenses, but has less in his/her bag of sentencing tricks, because the offense is now a misdemeanor. The prosecutor decides the charge, the judge decides the sentence.

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