Pleading Guilty to Michigan DUI is a Client Decision

by baronedefensefirm on February 15, 2010

MI DUI Client

Many people arrested in Michigan for DUI have never been arrested before and may have never even hired a lawyer.  For people facing a Michigan DUI for the first time it may be helpful to know what a DUI lawyer can do and what a DUI lawyer cannot do when handling their Michigan DUI case.

According to case law, criminal procedure, and the rules of ethics; as a general matter, a Michigan DUI client has control over those decisions deemed “personal” or “fundamental” to his DUI case.[i]

According to the United States Supreme Court, there are five decisions which are personal or fundamental, and therefore, over which a criminal defendant has ultimate control:[ii]

  1. To plead guilty or take steps tantamount to pleading guilty;
  2. To waive the right to a jury trial;
  3. To be present at trial;
  4. To testify on his own behalf; and
  5. To take an appeal

These decisions amount to “basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the DUI client”[iii] What this means is that as a DUI client, you have total decision-making power of these decisions.

So, if your DUI lawyer thinks you should plead guilty or waive a jury trial, the court must establish that this decision is made with full information.  You also cannot plead guilty to a DUI unless it is in open court and “on the record.”

In addition to these rights over which a DUI client has total control, there are five other decisions that federal and state lower court rulings have found belong solely to the DUI client:[iv]

  1. Waiver of the right to attend important pretrial proceedings;
  2. Waiver of the constitutional right to a speedy trial;
  3. Refusal (by a competent client) to enter an insanity plea;
  4. The decision to withhold a defendant’s sole defense at the guilt phase of a capital case and use it solely in the penalty phase; and
  5. Waiver of the right to be charged by a grand jury indictment.

For a DUI case it is almost always only the first two that are applicable.  Just like the others listed, these rights cannot be waived without your consent.

When selecting a DUI lawyer to represent you it is important to make sure that he or she will give you all the information you need to make “fully informed” decisions.  This is especially true of a decision to plead guilty.  Many so-called DUI lawyers will convince you that you need to plead guilty to your Michigan DUI at your first meeting in court when you’ve had little or no opportunity to discuss your case.  As shown above, this is not what the law requires.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

Note:  This article is based on the December 2009 Champion Magazine Article entitled Control Over the Defense: Representing Zacarias Moussaoui by Kenneth P. Troccoli.

[i] See 3 Wayne R. LaFave ET AL, Criminal Procedure § 11.6 (3d ed. 2007) at 770-74, 796 (noting that counsel generally has to follow the wishes of the client for those decisions “commonly said to require the ‘personal choice’ of the defendant”); see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (referring to the “fundamental decisions” that the defendant has the authority to make); Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998).

[ii] See Jones v. Barnes, 463 U.S. 745, 751 (1983) (“It is … recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”); Taylor v. Illinois, 484 U.S. 400, 418, n.24 (1988) ( citing with approval a decision from the U.S. Court of Appeals for the District of Columbia Circuit stating that the waiver of the right to be present during trial can only be made by the defendant and not the attorney); Florida v. Nixon, 543 U.S. 175, 187 (2004); accord 3 LaFave et al., supra note 4 at 776 (listing each of the five decisions and stating that “[t]he Supreme Court has stated, in dictum or holding, that it is for the defendant to decide whether to take each of [these] steps”); see also United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991) (citing Jones v. Barnes, and stating that “it is the defendant who retains the ultimate authority to decide whether or not to testify”); United States v. Lawrence, 161 F.3d 250, 255 (4th Cir. 1998) (ruling that a defendant may waive his right to be present at his trial).

[iii] Taylor v. Illinois, 484 U.S. 400, 417-18 (1988).

[iv] 3 LaFave et al., supra note 4 at 776-79 (listing and digesting the supporting authorities).


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  2. Your DUI Lawyer Controls These 18 Rights
  3. Jury Says “Not Guilty” on .263 Breath Test Case!
  4. Barone Defense Firm Earns Another Not Guilty!
  5. Lies Recently Told by Michigan DUI Lawyers

This post was written by...

– who has written 204 posts on Michigan Drunk Driving Law Firm.

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

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