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7 Mistakes Lawyers Make in DUI Plea Bargaining

Sep 2nd, 2016 DUI Trials

A recent article that appeared in the Champion Magazine suggests that there are 7 rules to plea negotiations in DUI (criminal) cases.  This is an interesting article because many lawyers who “specialize” in defending Michigan DUI cases fail to follow these 7 rules.

If you’ve been arrested for DUI in Michigan, make sure your lawyer “has not become a cog in the criminal justice machine.” First and foremost, be sure your lawyer will take the time to actually represent YOU and your best interests.  A failure to follow even one of these rules can result in your lawyer allowing you to plead guilty “because it is the easier course” and because they “do not care enough about the fate of their clients.”

Rule One: One: Get to know the client as soon as possible.

The point made here is that many lawyers fail to take the time to actually get to know their clients.  As indicated in the article:

The defense attorney cannot assume that all of her clients have the same goals. Thus, to learn about her client’s interests, a defense attorney should get to know her client as soon as possible. This will help gain the confidence of clients by conveying a sincere interest in helping them while projecting the image of a competent, knowledgeable lawyer. For example, the attorney should know whether the client’s biggest goal is to avoid a felony conviction so that he can keep his job or avoid jail time so that he can be at home to help raise his kids.

Rule Two: Get to know the case early.

Prosecutors are often interested in taking care of the case with the least amount of work possible.  Unless your lawyer is diligent in your defense, this means the offer might come before your lawyer knows much about your case.  This is why a detailed interview early on, usually combined with extensive questionnaires, are an essential part of good lawyering.  As indicated in the article:

Practically, this means that lawyers and/or their investigators need to go out and investigate, talk to witnesses, do legal research, and assess the case as soon as they get it. And because memories fade and physical evidence is lost or destroyed with the passage of time, conducting a fact investigation right away is also more likely to yield information than waiting months or weeks.

Rule Three: Take cases to trial.

The sad truth is that many of Michigan’s self-proclaimed DUI specialists never or rarely take cases to trial.  Perhaps they really have “become a cog in the criminal justice machine,” or maybe they just don’t know how to try a drunk driving case.  Here the article makes this point:

If a defense lawyer is perceived as someone who will advise her client to take the plea offer in every case, that lawyer is unlikely to receive good plea offers. If, on the other hand, a lawyer is perceived as one who is not afraid to try cases, prosecutors will generally make better offers to ensure that the case will not go to trial. Of course the best offers will go to the attorneys who not only try cases, but win them.

The article then goes on to talk about why many defense lawyers don’t take cases to trial.  The reasons include (1) not wanting to spend the additional time necessary to prepare and present a trial; (2) they don’t know how; (3) they have too much anxiety.

Even if you think you want to plead guilty, be sure you pick a lawyer who has a record for successful DUI trials.  If you do, then you might end up with a far better deal.

Rule 4: Provide good advice.

This sounds simple, but in practice it is not.  Many points are made here in the article, including that you should be made aware of the plea bargain offer right away, and not be rushed to make a decision.  You should also be given a clear view of what your options are, including the trial option, and that your lawyer should offer subjective “experiential” advice about their case, the jurisdiction, the prosecutor and the judge.  Exactly what’s in store insofar as sentencing is concerned should also be clearly explained.

Rule 5: Explain collateral consequences.

“So to the extent possible, a defense attorney should explain every ramification of the conviction that she can envision. To do this means really knowing the client and the case.”

There are many dozens of potential collateral consequences to a Michigan drunk driving conviction.  These consequences are not imposed by the judge or the Secretary of State, but rather, happen because you have been convicted of an alcohol related crime.  The article goes on to indicate several possible collateral consequences:

For example, some jobs bar people with criminal convictions, which may have an impact on the client depending on his profession or future aspirations. Federal law makes it illegal to own a firearm if one has a felony conviction. The lawyer should determine if the client has plans for higher education because even misdemeanor drug convictions make one ineligible for federally subsidized financial aid.

For a list of collateral consequences specifically applicable to DUI cases in Michigan, see:  Michigan OWI/DUI Sentencing: Understanding Potential DUI Punishments.

Rule 6: Negotiate with the prosecutor.

The bottom line here is that many lawyers do not actually negotiate.  To a large extent this goes back to the time thing, because negotiations, real negotiations, take time.  First your lawyer must get to know you as a person, and second your lawyer must be able to use this information to humanize you to the prosecutor.  As specifically stated:

At the outset of the negotiation process, the attorney should come armed to do battle. Not only should she know the strengths and weaknesses of the case, factually and legally, but she should be able to articulate sympathetic factors about the client to make him seem appealing to the prosecutor whenever possible.

Rule Seven: Address obstacles to effective representation.

There are many obstacles discussed in the article, including time, case load, offers that expire before meaningful discussions can take place and the inability to afford trial.  As indicated in the article:

A defense lawyer who finds herself in this position, however, must do everything within her power to obtain the time and the resources to effectively represent her clients during the plea negotiation process.

When thinking about which Michigan DUI Lawyer to hire, make sure your lawyer has the time to perform the required legal research, to conduct the legal and factual investigation of your case, and will take the time to meet with you and the prosecutor before a decision is made.  Ultimately, be sure all 7 rules are followed before accepting a plea of guilty.

When you call the Barone Defense Firm for your FREE case evaluation, we will begin learning about you as a person, learning about your case, and helping you to anticipate all the steps that will happen before you stand trial or plead guilty.  Call today for your no obligation initial case review.