The majority of OWI Cases are settled by Plea Negotiation. Legislators have made convicting people for this crime easy. OWI Cases only go to Trial less than 5% of the time. OWI Cases are politically sensitive, and the Judges are acutely aware of this.
The Prosecutor will generally offer a Plea at the first Pretrial Hearing. Some factors play into this, such as:
- Whether it was your first offense;
- Whether you have a criminal record;
- Whether someone was injured as a result of the incident;
- What your BAC Level was;
- What your occupation is;
- Whether you have a legal defense;
- What your age is at the time of the charge;
- And more…
Negotiating a Reduced Charge
It is possible to negotiate a Plea Reduction in OWI Cases, but whether or not I am able to do so successfully depends on numerous factors:
- Your BAC Level;
- Was there an accident;
- The City or Township the OWI took place in;
- Your prior criminal record; and
- Was anyone injured as a result of the accident.
If a Client decides that negotiating a Plea is the approach they want to take, we'll get creative and think outside the box. What does this look like? One Client I represented comes to mind...
I filed a Motion and a Brief for their Case. We were getting ready to start the Evidentiary Hearing, but because of the facts and circumstances, I was able to convince the Prosecutor to dismiss my Client's OWI charge entirely and let them plead responsible to a Civil Infraction of Careless Driving and Disorderly Conduct.
This meant that instead of walking away with a permanent OWI conviction on their record, my Client only had to settle the fines for a civil traffic infraction and then plead Guilty to Disorderly Conduct – a charge which can be expunged with relative ease. This was a huge victory for my Client. My Client's insurance wasn't placed into the high risk insurance pool, and his premiums continued to be reasonable, and he didn't have an OWI Conviction.
Accepting Plea Deals
During my initial meeting with each Client, I try to get a sense of their expectations for the case and its outcome. Then, based on the facts, I gauge whether their expectations are realistic. The truth is, the facts and circumstances of each case are as unique as each person that walks through my doors, so you never know what you're dealing with until review of the police report, audio/video, and other factors and then you take a close look into the situation at hand.
A case I had not too long ago comes to mind… My Client was charged with Operating Under the Influence of Marijuana. Because of a prior OWI Conviction within the past seven years, his license would have been revoked if he was found guilty of this offense.
However, there are several issues with charges that deal with Operating Under the Influence of Marijuana. The most significant among these issues being the fact that no study proves that having a particular level of THC in your blood correlates with any level of impairment in operating a motor vehicle. Therefore, in my mind, it is challenging for a Prosecutor to prove this and subsequently win a case. Knowing this, I told my Client who had a prior OWI Conviction, that he needed to fight this charge – so that's what we did.
In almost every OWI Case, Judges will set a Final Pretrial Date, called a drop dead date (which varies on a case-by-case basis), where you must either make a Plea or decide to go to Trial.
On the last day the Judge allowed Plea Offers, the Prosecutor offered to reduce the charge to Reckless Driving because we were especially aggressive in our approach. Despite the relatively favorable offer, I told my Client that I thought we could win the Trial. My Client, who did not want to risk anything, decided to take the offer.
As a result, the Judge assessed him fines and costs, did not order him to be placed on Probation, and his license was only suspended for 90 days.
What Happens When You Accept A Plea Deal
If a Client accepts a Plea, we place it on the record. This waives their right to a Trial, as is set forth by Michigan law. People are advised of this multiple times by both Judges and Attorneys before doing so.
The Plea will be a No-Contest Plea or a Guilty Plea. A No-Contest Plea is when the Defendant does not contest the charge. In these instances, Judges can ascertain the facts from the Police Report upon stipulation of Counsel. If it is a Guilty Plea, the Defendant provides the factual basis for the Guilty Plea.
Procedurally, what happens in a No-Contest Plea is that the Judge reviews the Police Report for the factual basis of the Plea instead of the Client providing the factual basis.
The Defendant is usually interviewed by the Probation Officer regarding their life, work, past criminal offenses, education, health, and use of drugs or alcohol. Additionally, a Substance Abuse Assessment will be administered to determine if the Defendant has any alcohol, drug, or mental health problems. The Probation Officer will then write what is called a Pre-Sentence Report which I thoroughly review with my Client, to ensure that they understand everything and correct any errors.
Finally, the Probation Officer makes a recommendation to the Judge regarding Sentencing. (Often, the Judge and Probation Officer are closely aligned on Recommendations and Sentencing standards.) Attorneys may ask to correct or clarify any errors associated with the recommendations. If it is fair and reasonable under the circumstances, I promptly ask the Judge to adopt it. If it is unfair, I highlight the issue and explain why the Court should rule differently.
If you are found Not Guilty of OWI, that is the end of your Case. Your bond is reimbursed, and you can celebrate your victory and a significantly easier life that will follow. If found Guilty, however, what happens next will depend largely on the Judge. When Sentencing, Judges examine an array of things, such as your background, the circumstances of the case, and whether there was an accident, or injuries.
In other states and counties across the US, many lawyers warn of the “Trial Tax” – a term used to describe harsher sentencing imposed by Judges as a penalty for those who reject Plea Bargains and go forward with a Trial and end up losing.
If you have only one OWI or Visibly Impaired Offense and more than five years have passed since your Probation ended, you can petition the Court to expunge your Case. There is a condition to this rule, however: your incident must not have caused Personal Injury to anyone.
The process to do this is quite involved, you must file a Petition with the Court and serve the Local Prosecutor, Attorney General, and the State Police with a copy of your Petition. When you finally appear in Court for the Hearing, the Judge will want to know what you have been doing since the OWI Conviction, especially if you have had any additional problems with alcohol or drugs in the interim.
This can be extremely involved and challenging to do on your own, so I always recommend that those seeking Criminal Expungement work with an Attorney to ensure success.
For more information on What You Need To Know About Plea Deals & Penalties, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (313) 282-7007 today.