I’ve Been Charged with Operating While Intoxicated – What Happens Next?

What Happens When You are Charged with Drinking and Driving?

Being charged with a drinking and driving crime is stressful, and the legal process is confusing.

Below is a general outline of the court process for the standard misdemeanor, what to expect, and an explanation of the options.


An arraignment is the first step in the court process. There are several purposes of an arraignment hearing. First, a person is informed of the official charge and the maximum punishment of that charge.

Second, conditions of bail and bond are ordered by the Court. Bond conditions are requirements imposed by the Court that will last until the resolution of the case. Bond conditions will vary by Court. For example, some Courts require defendants to post a large amount of money to the Court and take daily breathe tests. A different Court might just give a defendant a personal recognizance bond, which means the defendant simply promises to show up for all court dates.

And third, a person enters a plea, which at the first step would be a not guilty plea.

In many instances we ask a court to waive the arraignment or to combine the arraignment with the next step in court process, called the pre-trial conference.

Discovery phase

During the early stages of the case, we obtain all the evidence the prosecution has in its possession. We file Freedom of Information Act requests with every police agency that touched anything related to the case.

The police agencies then give us all the police reports, the videos from the police cars, and the background information related to the testing of the breath or blood for alcohol.

We spend time going through all of the materials we receive in order to gain a complete understanding of the case.

Drinking and driving cases may seem open and shut to most people because these cases involve science and numbers. The reality is that these cases can be challenged on many grounds. Thorough preparation is how we discover and take advantages of those challenges.

Pre-trial conference

The pre-trial conference is an opportunity for the defense attorney and the prosecutor to discuss the case and determine which direction the case is headed. This will be an opportunity to discuss a plea bargain resolution with the prosecutor if that is the Client’s goal. Where a plea bargain is not the goal, then we inform the judge that we intend to set the case on track for trial.

Decision for Resolution

The decision for how a case will be resolved is always a decision for the Client.

When a person is charged with a crime, the case is generally resolved in one of two ways. The first way a case can be resolved is a plea bargain. A plea bargain is where a person admits guilt and in exchange for some benefit in return.

For example, a person may admit guilt in exchange for a dismissal of the original charge in exchange for a conviction to an offense with lesser consequences.

Another example would be a guilty plea in exchange for a promise from the judge for no jail time.

The second way a case is resolved is by trial. In some cases the Client may be innocent. In some cases, the prosecution’s ability to prove a crime beyond a reasonable doubt questionable. A person is never under an obligation to plead guilty, even if they did, in fact, drink and drive.

A person is always entitled to a trial. We will take any case to trial so long as you give us the green light for trial. Before getting to trial, the defense attorney may file motions in order to chip away at the prosecution’s evidence.

There are advantages and disadvantages for each option. It will be necessary to thoroughly discuss the case with an attorney to fully understand which option is best for you.

Pre-trial Motion Hearings

Where appropriate, we file a pre-trial motion to schedule an evidentiary hearing before the trial. The goal of a motion would be to gain a strategic advantage by suppressing the prosecution’s evidence. The suppression of evidence can lead to a dismissal of the case, or perhaps a weakening of the prosecution’s case that may lead to a favorable plea bargain.

A motion could be on any number of issues. For example;

  • Did the police have a the legal ability to stop your car?
  • Was there enough probable cause to arrest you?
  • Was the blood draw performed accurately?
  • Was the breath test performed in the right way?

As in any game of strategy, the goal is to gain a better position over your opponent to increase your chances of victory. Any weakening of the prosecution’s evidence will result in a strengthening of your position. The better your position going into trial will increase your odds of a win.


If the case has not resolved with a plea resolution then the case will go to a trial. You can choose to have either a jury or a judge sit as the decision-maker in a trial. A jury trial is preferable. However, there may be considerations that make a bench trial appropriate.

A trial is a test of the sufficiency of the prosecution’s evidence against you. The prosecution must prove each element of the crime charged beyond a reasonable doubt for there to be a finding of guilt. This is a high burden to reach. The prosecution must be held accountable to that burden.

Statistically, a very small percentage of criminal cases go to trial.

The reality is that many more cases should go to trial. Fightable drinking and driving cases often go unchallenged. In addition, many prosecutors are unwilling to offer plea bargain on drunk driving cases.

With no available plea resolutions your options are either plead guilty as charged or take the case to trial. When you have nothing to lose, you may have everything to gain by taking the case to trial.

A win at trial means the case is over. A conviction at trial means the person will go on to a sentencing hearing.


Following a plea bargain or conviction by trial there will be a sentencing hearing in front of the judge. Before sentencing, the person will meet with a probation officer, who will conduct an interview and make a sentencing recommendation.

Possible outcomes at sentencing can include jail, probation, community service, fines, and attendance at AA meetings or educational classes.

Following a conviction, there will also be driver’s license sanctions, which vary according to the particular offense.

What happens at sentencing will be based on the individual convicted and the sentencing judge. Everyone is different, with different backgrounds, past convictions, substance abuse issues, and work and family backgrounds. In addition, judges are all different too. Different judges will have sentencing philosophies that will vary.

One Court may sentence a first offender to six months of probation with no oversight, while another Court may sentence that same person to five days in jail with 18 months of reporting probation.

At sentencing, the attorney and defendant will have a chance to speak to the judge, a speech called allocution. This is an opportunity to provide the judge with information that may impact sentencing.

Note: A felony drinking and driving charge will involve a few more steps not discussed here. Also, OWI cases will involve consequences to your driver’s license.

If you are charged with Operating While Intoxicated contact ArborYpsi Law at 734-883-9584 or at bernstein@arborypsilaw.com to speak with attorney Sam Bernstein.

Interested in learning more about how police officer’s investigate OWI cases? Read What to Do When Pulled Over for Drinking and Driving.

Contact Us

Call Sam Bernstein at 734-883-9584 or e-mail at bernstein@arborypsilaw.com.

Sam Bernstein is an OWI lawyer in Ann Arbor.

ArborYpsi Law is located at 2750 Carpenter Rd #2, Ann Arbor, MI 48108.

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