In the previous article on this Blog, we examined the difference between Misdemeanor and Civil Infraction Traffic Offenses, and learned that Misdemeanor Traffic Offenses can NEVER be removed from a person's Criminal Record. In this article, we'll look at the consequences of that permanence, and see how it applies in the real world.
As a practicing Criminal Defense Lawyer, I spend a lot of time in the Metro-Detroit area Courts. A recent experience in a city outside the Suburban-Metro area (hereafter referred to as the "other place") serves as the inspiration for this installment. To be fair, I cannot say where this case was handled, other than to point out that it was not in Macomb, Oakland, or Wayne County. In fact, an experience like this tends to reinforce my general policy to limit my Practice to the Tri-County area, with certain, limited exceptions. And I got into this case as one of those exceptions.
My Client was charged with Driving While License Suspended, Revoked or Denied (DWLS/DWLR), 2nd Offense. His last DWLS/DWLR conviction occurred more than 10 years before this most recent charge. He has 4 total prior DWLS/DWLR convictions. His License was Revoked due to several DUI convictions, the last also occurring nearly 10 years before this arrest. To be clear, his last DUI did, in fact, occur after his last DWLS/DWLR case.
Somehow or other, my Client was able to get a License from another State right after his last DUI conviction (definitely an error on that State's part), and returned to Michigan for a visit a little over 5 years ago, when he held the then-valid, out of State License. He got pulled over in a local city, and because his Michigan License was revoked, was still cited for DWLS/DWLR. He returned to the other State without taking care of this Michigan matter, and all but forgot about it.
Until he got arrested for DWLS/DWLR in the "other place." When his LEIN record was run, it came up that he had an outstanding Bench Warrant for his failure to show up to Court for the local DWLS/DWLR case. The end result to all this was that he had to post a Bond for the Old, local case, as well as the new, "other place" case.
Because of the way things worked out, the "other place" Court date came before the one in the local Court. I dutifully appeared in Court and met with the Prosecutor for that County. He was a nice enough guy. He heard me out about my Client's situation, and expressed his understanding. He agreed to reduce my Client's charge from a 2nd to a 1st Offense (the maximum possible sentence for a 2nd Offense is up to 1 year in Jail, whereas for a 1st Offense, the maximum is no more than 93 days in Jail), but pointed out that he did so very reluctantly, because my client had so many prior convictions.
I politely, but proudly pointed out to the Prosecutor that it had been nearly 12 years since my Client was last convicted of DWLS/DWLR.
The Prosecutor then politely, but properly pointed out that unlike a 2nd offense DUI, which must occur within 7 years of the 1st in order to count as a prior, there was no such time limitation with DWLS/DWLR cases. While I knew this to be true, it has also been my experience (pretty much all of which has been local to the Detroit-area), that convictions this old are generally not counted against a person who has remained trouble-free for so long.
He then pointed out (and I later confirmed) that the Judge to which my Client's case had been assigned is known as being VERY tough, especially on DWLS/DWLR cases that can trace back to a DUI Suspension or Revocation. He further told me that our Judge will often sentence people to the maximum Jail term allowed by the Law. In the local Courts, keeping the Client out of Jail in a case like this is usually not hard to do.
So I begged and argued and whined a while longer, and he told me the best thing he could do (that the Judge would likely follow) was to recommend a "cap" of 30 days in Jail as the maximum for my Client. This is where my jaw almost hit the ground.
While that doesn't mean that my Client will necessarily go to Jail, in any local, Detroit-area Court I'd expect to at least get the Prosecutor to agree to a recommendation of "No Jail" or "No Objection to Probation Only."
In an earlier Blog article, I noted how all DWLS/DWLR cases fall into 1 of 2 categories:
1. Those for whom the Suspension or Revocation is the result of a DUI, and
2. Those that aren't.
We further learned that anyone who lost their License because of a DUI who and has been charged with a DWLS/DWLR can expect to be treated more severely than a person whose License Suspension is the result of an unpaid Traffic Ticket. And make no mistake about it, my Client fell into that 1st category.
That said, there does come a point (at least one would hope), when enough time has passed to allow any anger toward the Driver to subside, especially when he or she has otherwise remained out of trouble. I call this the "dog poop rule." Even though I don't have a dog, I know that if someone comes home, opens their front door, and sees Fido squatting in the middle of the living room, leaving a "deposit" on the carpet, he's going to be in a LOT more trouble than if when moving furniture, the person discovers Fido had a little "accident" a long, long time ago.
The same thing usually applies in Court. At least it does locally.
In the "other place" Court, not only did they not care how long my Client had been trouble-free, they still held firm to the fact that this all started because he lost his License for multiple DUI's. Sure, he got a break, and apparently a pretty good break by the local standards of that "other place." In the Tri-County area, however, I would have expected that the charge could be reduced to No Operators License On Person (No Ops), at least in most Courts. And in pretty much every local, Detroit-area Court, while my Client would certainly not get a pat on the back and an "atta boy," he definitely would have been treated less severely than he was in the "other place."
I suppose there are several "morals" or conslusions to this story:
1. All Traffic Misdemeanors stay on your Record forever.
2. Any DWLS/DWLR conviction can be used as a "prior" offense, no matter how long ago it occurred.
3. If a DWLS/DWLR conviction is the consequence of a prior DUI, or multiple DUI's,
things are worse than if the DWLS/DWLR are the result of anything else.
4. Because each of the Local (Macomb, Oakland and Wayne) County Jails is either
overcrowded, or nearly overcrowded, DWLS/DWLR cases are not given priority for
incarceration. Other Counties think differently, and have the available Jail space to
5. Don't drive without a License. If you do, stay in the Detroit-area.