Interviewer: What are the major elements and what’s the process and how long is the timing of each thing?
Following the Arraignment, the Case Is Set for a Pre-Trial Conference
Attorney Tafelski: The first thing that happens after you’re arrested is you have the arraignment. At the arraignment, they set a bond and make you aware of the charges. Then the court sets the case for what’s called a pre-trial. Between the arraignment and trial is when the attorney needs to gather the evidence, which is called discovery from the prosecutor.
Within that discovery packet, you should be able to get videotapes showing your bad driving, your arrest, your transport to the station and your being administered the main breath test. In addition, we should be able to get the police reports and the maintenance logs of the data master machine.
All of that needs to be thoroughly reviewed before the trial to determine whether or not you have any valid or viable defenses, any issues to fight on, evidence, anything basically that can help you or hurt you in that case, you want to have it analyzed before that pre-trial.
During the Pre-Trial Conference, Your Attorney Will Counsel You on Proceeding to Trial or Accepting a Plea Bargain
At the pre-trial hearing, the attorney will meet with the prosecutor to discuss the case and determine where it goes from here. In some situations you may want to set the case for trial. In other situations, you may want to accept a plea bargain. You may need more time to think about what’s going to happen. The pre-trial is basically the meeting where the attorney and the prosecutor discuss the course of the case.
A Case Resolved by Plea Bargain Is Usually Resolved in a Few Months
From that, then on it depends what happens as to how fast the case goes. If you did a plea bargain, the next thing will be to come back at different day for sentencing. During the plea and the sentence, the court will do an alcohol assessment on the defendant to determine whether they have an alcohol problem.
The Probation Department will interview the defendant to make the recommendation to the judge as to whether or not they should go to jail, whether there should be counseling, what types of terms and conditions they should have probation.
Then, we’d come back for sentencing and the judge would ultimately impose the punishment. If you accept that plea it takes about two months from start to finish. If you have issues and you want to fight on these issues, such as trying to suppress the breath test results or if you think the stop was invalid or if you think the police did not have sufficient evidence to arrest you, those issues require additional hearings and take more time to address. It’s hard to predict just how long that will all take.
The More Opportunities That Are Discovered for the Defense, the More Opportunities You Have to Prevail at Trial
It’s a step by step process and it all depends on what the evidence reveals and what opportunities the defendant has to fight the case. The more opportunities there are, then the better deal you usually can end up with.
I find that people always want to know about what penalties they face for this offense.
A First Offense OWI/OWVI Is a Misdemeanor in Michigan
A first offense in Michigan is a misdemeanor. It’s punishable by up to 93 days in jail. If you’re convicted of operating while intoxicated, your driver’s license gets suspended for 30 days and then is restricted for 150 days. If you are convicted of operating while impaired, it’s a 93-day misdemeanor and your driver’s license gets restricted for 90 days. Those license penalties are set by law. They can’t be changed by the judge.
There Are Some Judges in Michigan That Impose a Jail Sentence for a First Offense
On a second offense, and what people should know, too, is that some judges in Michigan now give jail time routinely on first offenses. Many still don’t unless there are aggravating factors, if a person has been in trouble before, that kind of thing. Some now are given jail on first offenses. On a second offense, the maximum jail time is up to one year in the county jail, and most judges in Michigan will give some jail on a second offense.
Your License Is Suspended for One Year for a Second Offense
Also, the driver’s license penalty on a second offense is the mandatory revocation of all driving privileges for a minimum of one year. After one year, you have to go before the administrative law judges and administrative hearing officers at the Department of License, or the DLAD it’s called, Driver’s License Appeal Division, and convince them that you are sober and likely to remain sober. Then, if they do give you a license back, it’s a restricted license for one year with an interlock device in your car. It’s a very severe punishment.
A Third OWI/OWVI Offense Is a Felony; the Penalties Escalate with each Subsequent Conviction
If you get a third offense ever in your lifetime, it’s a felony punishable by up to five years in prison, with a minimum of 30 days in jail by statute. If this is your second revocation within 10 years, that revocation of your license is for a minimum of five years. The penalties get exponentially worse with each offense and are also aggravated by prior histories involving drinking, even minor infractions such as MIPs.