Michigan Prosecutor’s DUI Arrest Places Job at Risk

On May 11, 2020, a Southwest Michigan prosecutor arrested for DUI after crashing his car. He was later observed pouring  liquid out of a container in an apparent attempt to conceal evidence.  The container was later determined to have contained alcohol, and so the prosecutor was charged with open intoxicants as well as drunk driving.

If Convicted of DUI in Michigan He May End Up in Jail

The potential penalties for a first offense DUI, called OWI or Operating While Intoxicated in Michigan, include a maximum penalty of up to 93 days in jail. Additional sanctions include a fine of up to $500 fine, court costs and cost recovery, in addition to a crime victim rights fee and a judgement fee.  On top of this, if convicted of DUI this prosecutor is likely to serve a term of probation, be ordered to complete up to 45 days of community service, be ordered to complete some form of counseling and could even lose his car through vehicle forfeiture.

If convicted of DUI, the prosecutor also faces driver license sanctions imposed by the Michigan Secretary of State. On a first offense OWI this sanction includes a suspension of his driving privilege for 180 days, with no driving at all for the first 30 days of this suspension. Thereafter some restricted driving will be allowed, but only if he is driving to and from and during the course of his employment, court ordered requirements (community service, probation meetings, alcohol/drug testing, counseling or AA), counseling, and serious medical treatment for him and his family. Once the suspension and restricted period is completed, he will be able to obtain full privileges upon payment of $125 reinstatement fee.

Although in most of the DUI courts in Michigan the judges do not regularly order jail for a first offense DUI, things might go differently for this prosecutor. The Michigan DUI attorneys at the Barone Defense Firm have handled many DUI cases at the District Court in Centreville for St. Joseph County, and what we know from this experience is that the judges in this County have;

1. Developed a formula (similar to Felony Sentencing Guidelines) that calculates what would be an appropriate sentence based upon the facts of the case, like alcohol level, and the individuals history and background and rehabilitation efforts, and
2. At least one judge that believes that if you serve at least one day in jail from being drunk you deserve at least one day in jail sober, for the true experience.

This means that, depending on the facts of his case, and the judge to which his case is assigned, this prosecutor may well be looking at life behind bars. Even for a first offense DUI!

This Prosecutor Could Also Lose His Law License for a Single DUI Conviction

Like all lawyers in Michigan, prosecutors are licensed by the State Bar of Michigan, and must always comply with the State Bar’s rules of ethics. Additionally, lawyers must prove that they have good “moral turpitude.”  Because of this, all Michigan lawyers, be they DUI criminal defense attorneys, judges or prosecutors, must report a conviction for any criminal activity to the State Bar. Upon doing so, they may face sanctions, which in extreme situations, can result in the loss of their license to practice law.

The Michigan DUI lawyers at the Barone Defense Firm represent may professionals, including those from the legal and health care professions.  We have found that the punishments outlined above as imposed by the judge and Secretary of State are not their main concern. Instead, licensed professionals are usually far more concerned about the potential loss of their license to practice law.

A lawyer convicted of a crime must report the conviction to the State Bar of Michigan and the Attorney Grievance Committee (AGC) pursuant to Michigan Court Rules (MCR) 9.120(A).  This rule also requires the DUI defense lawyer and the prosecuting attorney to report the conviction. This reporting is mandatory and is the start of an investigation. Upon learning of the conviction, the AGC investigator will review the matter, which may include requesting police reports and other official documents, review substance abuse counseling reports, as well as a specific inquiry to the attorney for more information.  The investigation is then submitted to AGC with the summary report and recommendation.

The potential sanction to this prosecutor may be relatively meaningless in that the AGC may simply close the case, or he could be publicly admonished by a report in the Michigan Bar Journal. He could also be placed on probation with requirements, or in rare and extreme cases, he could have his license to practice law suspended.

In a case like this they will determine if there is a substance abuse issue, and whether there are mitigating factors and whether there is a history. This process may be limited to simply submitting the letters required reporting the conviction, or it may require a hearing with AGC.

Our State Bar however has indicated in previous written decisions involving the criminal activities of lawyers that lawyers are lawyers 24/7 and not just 8 hours a day 5 days a week. This means that crimes committed even when not acting as an attorney subject the wrongdoing to Bar sanctions.  Some find it hard to believe, but there is a higher standard that all lawyers are ultimately held to within the legal profession.

How Will the Open Intoxicants Charge Impact Him?

In addition to the DUI, this prosecutor was also charged with the second misdemeanor of Open Intoxicants in a Motor Vehicle. Under Michigan law it is illegal to possess or transport alcohol that is open, or uncapped, or where the seal has been broken within the passenger area of the car. The “passenger area” is defined as the area to seat the driver and passengers of a car while driving and any area that is readily accessible to the driver or a passengers from their seats, including the glove compartment and center console. A violation of this law may result in substance abuse counseling and/or community service, and for the driver it also is abstracted or placed on the driving record along with 2 points.

Is There a Conflict of Interest?

Because he is the elected prosecutor in the county of the offense there will be some special accommodations in his case due to ‘conflict of interest’.  A conflict of interest is when a judge, or prosecutor, or party to the case, has a personal or professional relationship with another person in or on a case, and the law requires them to be removed or recused to ensure fairness and avoid any perception of bias. For example, he is being held in a different county jail.  Presumably, there will be a judge from another county that will take the bench, and the Attorney General’s office will appoint a special prosecutor, often from a neighboring county, to prosecute the case.  These special accommodations are not for special treatment but to avoid possible special treatment and maintain the integrity of the court system.

We hear it in Courts all over the State, that good people make mistakes. We have worked with this prosecutor on a number of cases over the years and have found him to be a professional and reasonable individual. Our hearts go out to him and his family in this difficult time, and we hope that this arrest will not impact his election later this year.  We also wish him well as he deals with the inevitable fear and stress.  Like so many of the good people we represent, he deserves a second change.