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Monday, September 26, 2011

MICHIGAN OWI-DUI-OUIL CASES REQUIRE JUDGE TO CONSIDER SUBSTANCE ABUSE ASSESSMENT - MICHIGAN'S DUI EXPERTS OVERTURN JUDGE'S SENTENCING DECISION BASED ON STATEMENTS MADE BY THE ACCUSED

By Michael Nichols

In Michigan, a Judge is required to review and consider a substance abuse assessment in order to determine the needs of an offender charged with violating Michigan's OWI-OUIL-DUI law. MCL 257.62 and Michigan Court Rule (MCR) 6.425 require that a judge must review the assessment before imposing a sentence. The law says that the court must review a substance abuse assessment in order to determine the level of need the person may have for purposes of rehabilitation or treatment for substance abuse.

A 24 year old Michigan man was nearly victimized by his own honesty during a substance abuse evaluation for his sentencing on a first offense for owi. "The judge started asking the client several questions about the content of the evaluation," said owi attorney Wendy Schiller-Nichols. The man was given 7 days jail.  At first, Schiller-Nichols was frustrated. "I was really bothered by the way I felt my client was treated," she said.

Schiller-Nichols thought about it all night after the sentencing hearing. "I decided to appeal the sentence and move the circuit court for a stay because 7 days in jail is much higher than normal for an owi 1st offense," she said. Schiller-Nichols added "I said in my motion to stop the sentence from being carried out pending our appeal that it appeared that the sentencing judge treated this person more harshly because of his honesty during the substance abuse assessment."

In the meantime, The Nichols Law Firm client was on his way to jail, scrambling to find sitters for the 4 and 2 year old kids over who he has primary physical custody. Schiller-Nichols convinced the sentencing judge to give her client until 6pm to make arrangements and reluctantly let his employer know he was out of commission for a week.

It also gave Schiller-Nichols time to form a strategy. The wheels were in motion at the Nichols Law Firm that night. Documents were filed the next afternoon to free the client. A circuit judge agreed to free him while his appeal was pending. By 5 pm the next night the man was released. He spent almost 24 hours of a 7 day sentence in jail. Says Schiller-Nichols: "We don't know if the sentence will ultimately stand but sometimes you have to fight for what's right ... And what happened to my client was wrong and I couldn't take it lying down."