As a Practicing Criminal, DUI and Driver's License Restoration Lawyer, I explain something about this area of the law, to at least someone, pretty much everyday. In this Blog, I have tried to address questions that I hear again and again, and this article will focus on one of those. Anyone facing a 2nd DUI within 7 years will eventually learn that there is a Mandatory License Revocation, meaning that their License will be completely taken away for at least 1 year. Concerned about their ability to work, or go to school, or go to the Doctor's, they ask:
"Can't I just go to Court to get some kind of Restricted License?"
Across the board, the answer is "No."
Prior to 1998, the Court hearing a DUI Case had to impose the Licensing Sanctions on the Driver. Different cases, and different Courts produced often very different results in similar circumstances.
In 1998, Michigan overhauled its Drunk Driving Laws. That overhaul came to be known as the "Habitual Offender" legislation. Among the sweeping changes to the DUI laws in Michigan was the transfer of authority over all DUI Licensing Sanctions away from the Courts, and directly to the Secretary of State. After the laws went into effect, it was no longer possible for a Judge hearing a DUI to make ANY decisions whatsoever about the Driver's License.
Moreover, the new law provided fixed, Mandatory Penalties for every kind of DUI (and Operating Under the Influence of Drugs) case. A 2nd Offense DUI within 7 years of the 1st results in a Mandatory 1 year License Revocation. A 3rd Offense within any 10 year period carries a Mandatory Revocation for at least 5 years. Interestingly, most people facing a 3rd DUI within 10 years are already painfully aware that their License will be yanked for a long time. They're more concerned about "when" rather than "if."
Let's look at an example: Prior to the Habitual Offender laws, if a person got a 2nd DUI within 7 years, but had the charge plea-bargained down to a 1st offense, the Judge could issue a Restricted License after 60 days of full suspension. After the Habitual Offender laws took effect, however, the Courts no longer had any power over a Driver's License. Beyond stripping the Courts of authority over a DUI Driver's License and rather than take into account what Plea Deals a person had made, the transfer of that power to the Secretary of State simply required it to count the total number of Alcohol-Related offenses a person had accumulated over a period of 7 or 10 years.
If the number is 2 within 7 years, the Driver's License will be Revoked for at least 1 year. If there are 3 or more within any 10-year period, then the License will be Revoked for at least 5 years from the date of the last offense. The law was made clear that when these Sanctions were applied, there was no appeal to anyone, and no possibility of getting a Restricted License whatsoever. Thus, the person in our example would have his or her License Revoked for at least 1 year, even if, in his 2nd DUI, he was able to Plead Guilty to a 1st Offense.
Of course, as the Lawyer for a person dealing with a 2nd Offense DUI, I am often asked questions like "How am I supposed to keep a job?" "How can I pay the Court if I lose my job because I can't drive?" "How am I going to get my kids to and from school?" I have to remind the Client that I didn't make the law. The answer provided by by the Habitual Alcohol Offender legislation is cold and hard: That's your problem, and you should have thought of that before this happened.
I could go on all day about how unfair this is, and what we could do to make things a little easier, but that would just be a waste of time. The whole point of this Habitual Offender legislation was to make people think about the consequences before they ever get a 2nd DUI, and, if they do, to make those consequences stick. Realistically, the chances of any State Legislator proposing that we "loosen up" the License Sanctions for Drunk Drivers, much less there ever being any support for such an idea, is completely non-existent. And it probably always will be. As the saying goes, it is what it is.