DUI in Metro Detroit - The Real Differences Between a 1st Offense and 2nd Offense Case

January 9, 2012

Within my DUI Practice, the majority of Clients I have are first-timers. I suspect it's the same for any DUI Lawyer. This only makes sense because the majority of DUI cases pending in any District Court at any given time are 1st Offense cases. Nevertheless, a rather large percent of my DUI Clients are facing their 2nd Offense. I suspect this is the case because, having already been through this once before, they are able to identify with the information I have provided on my website, especially that dealing specifically with 2nd Offenses, and find my various Drunk Driving blog articles to be spot-on in terms of the accuracy of the information presented.

One of the more common questions I am asked deals with the difference between a 1st and 2nd Offense DUI in terms of outcome, or what happens to the person facing the charge. This article will focus on those differences from the perspective of someone who has a prior DUI and is facing a 2nd Offense. Despite that focus, those facing their 1st Offense may want to read this article, as well.

Copper car2.jpgIt doesn't take a rocket scientist to figure out that a 2nd Offense DUI is going to be a lot tougher than a 1st Offense. Many Courts, especially those in Macomb and much of Wayne Counties, are understanding enough to at least consider the possibility that a 1st Offense DUI can be an out-of-character incident for someone, and not necessarily the manifestation of an alcohol problem. In other words, it can be just an instance of bad judgment. Oakland County Courts are generally more inclined to be cautious in their approach to a 1st time DUI Offender, and will seldom be as lenient as either their Macomb or Wayne County counterparts. For all of that, with the exception of 1 Judge in the 48th District Court in Bloomfield Hills, a 1st Offender can essentially count on NOT going to Jail. The kind of "leniency" we're talking about here has to do with things like classes, community service and counseling, and NOT incarceration.

There are really two ways in which a 2nd Offense differs from a 1st Offense. As noted before, the one about which I am most frequently asked has to do with what will actually happen to the person facing the charge, and, more than anything else, the most important of those concerns is "am I going to Jail?" Beyond that, the legal consequences, such as things like loss of the Driver's License, Fines, Costs, Community Service and Counseling or Treatment are very different, meaning more serious, or severe, in a 2nd Offense case.

One constant that is an inherent part of each and every 2nd Offense case is the belief and perception by just about everyone in the criminal justice system that the person facing the charge has an alcohol problem. Over 21 years ago, when I was a new Lawyer, I was often too concerned about offending my Clients to be as direct and forward as I am now. Tempered by over 21 years of experience, I have long since realized it's my job, and my obligation to help my Client, and an important part of that is to prepare them for what is really going to happen, and how they are really going to be viewed and treated by the Court system.

In that regard, no matter how unpalatable the notion may be, a person needs to understand that when they're facing a 2nd Offense DUI, the whole legal system, meaning the Police, the Court, the Judge, the Probation Officer and everyone else involved in the case will assume and presume they have an alcohol problem. For all the explanations and excuses a person can offer, everyone in the system hears those excuses as just noise, like Charlie Brown's teacher, whose trombone voice never formed a single word, but instead just went "wah wah wah wah wah!" In other words, the most convincing and detailed explanation about how and why a 2nd Offense Arrest happened, and how and why the person facing the charge doesn't really have an alcohol problem will, at best, just go in one ear and out the other. At worst, it can test the patience of those who matter (think: the Judge and the Probation Officer) and only serve to tick them off.

On top of that, ALL 2nd Offense DUI's fall under what are called the "habitual offender" laws. These Laws REQUIRE that a person convicted of (or who pleads guilty to) any kind of 2nd Offense DUI to undergo mandatory counseling. And that's not marriage counseling, either; it's alcohol counseling. The Law presumes that a 2nd Offender has an alcohol problem.

Perhaps the most significant consequence of a 2nd Offense DUI is the License Sanction. Specifically, it is that a 2nd Offense DUI results in the complete and total loss (called a Revocation) of the Driver's License for AT LEAST 1 year. After the minimum 1 year Revocation has passed, the person can file for a Driver's License Restoration Appeal with the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). Part of that Appeal requires that the person prove, by what is called "clear and convincing evidence," that his or her alcohol problem is under control, and is likely case, presumes the person has a problem.

This creates a real conflict for someone who stumbles into this situation proclaiming that they DO NOT have a drinking problem, and offering excuses and explanations for how their 2nd Offense is different from that of anybody else. To be blunt about it, almost every Judge out there (and certainly every one that I know), independent of any of the facts of any given case, will conclude, solely on the basis that a person is facing a 2nd Offense DUI, that they have an alcohol problem. And for those who think otherwise, believe me, arguing with the Judge is a sure-fire way to make things go from bad to worse. Never, in my 21-plus years of being a Practicing Lawyer, have I ever seen anyone successfully argue with a Judge.

Of course, this makes finding a way to beat a 2nd Offense charge the first priority in the scheme of things. Every bit of evidence needs to be examined under the microscope, and it needs to be looked at from every angle. It is incumbent upon the Lawyer to make sure every bit of evidence in a 2nd Offense charge has been carefully scrutinized, and that no stone has been left unturned in the quest to find a way to beat the charge, or challenge any evidence that could be strategically advantageous to exclude, and can weaken the Prosecutor's case.

In a perfect world, or at least a DUI Lawyer's perfect world, there would be problems in every DUI case significant enough to mount a successful challenge, and the charges would collapse like a house of cards. As the reader might imagine, in a Prosecutor's perfect world, there would never be any basis for a successful legal challenge to any DUI case, and none would ever get "knocked out."

In real life, however, those defects in the evidence and the basis to successfully challenge, as opposed to simply challenge a DUI are the exception, and not the rule.

At the outset of this article, I noted that what might even be described as a disproportionately large part of my DUI practice involves 2nd Offense cases. Often, I sit across my conference table from someone who shelled out too much money for legal Fees in their 1st case, having been bamboozled by the "this is a list of all the things that could be wrong in a DUI case...hire us and we'll challenge everything" bill of goods. Feeling like they've been taken to the cleaners in their first case, and understandably a bit skeptical of Lawyers in general, these Clients begin searching for real advice and a realistic assessment of their DUI charge. They specifically want to avoid getting "soaked." It seems that's where I come in.

I suppose I could really jack up my income by painting a rosy, albeit unrealistic picture about DUI cases. If there is one thing I have always sought to avoid, however, (and have avoided, thankfully) it is an understandably angry Client who would turn to me, when things didn't turn out the way they were made to appear, and say "but you told me...!"

Sometimes being honest means being the bearer of bad news. Often, it means telling the Client what they need to hear, rather than what they want to hear. It seems rather certain that being honest means you'll make less money than you otherwise would if you simply told people what they want to hear.

In that regard, being honest and being truthful means being rather up-front about the fact, and it is statistically verifiable fact, that most DUI charges can't be made to just "go away."

Accordingly, in the real world, most DUI charges, whether brought as a 1st Offense or 2nd Offense case, are not going to be dismissed or "knocked out" on some technicality. It's kind of like the odds at a casino; they favor the house. No matter how smart a person thinks they are, in the long run, the house makes the money, and the gambler doesn't.

So does this mean that a 2nd Offense DUI is twice as bad as a 1st Offense?

This is probably everybody's favorite "Lawyer" answer; "it depends."

It depends on, first and foremost, where the case is brought. Pretty much everyone knows that Oakland County is the toughest County in which to face a Criminal case, including a DUI. Macomb is probably the best, with Wayne County not that far behind.

Beyond that, it is important to factor in a person's BAC, or Bodily Alcohol Content, as shown in either their Breathalyzer test results, or the results of any blood test taken. The lower that "score," the better.

Very often, a person's BAC score will be higher in their 2nd Offense case than it was in their 1st. This is usually taken as proof that they're drinking more, and their tolerance is increasing. In those cases where the opposite result is found, and particularly if the BAC in the 2nd Offense case is, is not considered "high" (usually meaning .17 or above), that can and should be used in the person's favor by the Defense Lawyer.

There are certain things that will ALWAYS happen and other that will just NEVER happen in a 2nd Offense case:

A person will ALWAYS be placed on Probation

A person will ALWAYS be sent to some kind of Counseling or Classes

A person will ALWAYS be breath and/or urine tested regularly

A person will NEVER receive Non-Reporting Probation

A person will NEVER just get "Fines and Costs"

A person will NEVER meet a Judge who thinks they don't have a drinking problem

In some cases, depending on where a person's 1st Offense took place and where the 2nd Offense case is brought, the 2nd Offense case can be more than twice as bad. As an example, a person who had their 1st Offense in the New Baltimore District Court might have escaped simply by paying Fines and Costs, and not having been Ordered to complete any Probation. If that same person picks up a 2nd Offense case in the Rochester Hills District Court, they're going to feel that the outcome of that 2nd Offense case was far more than twice as bad as their 1st.

However, someone who had their 1st Offense case in the Bloomfield Hills District Court, and who thereafter gets a 2nd Offense in the Shelby Township District Court, will feel that they were treated much more leniently in Shelby, despite the fact that it was their 2nd Offense. In other words, they'll feel that the 1st Offense resulted in much harsher treatment than did the 2nd Offense. This, of course, represents an unusual turn of events. Normally, things only get tougher the second time around.

For those readers facing a 2nd Offense, at least understanding the realities of the situation can help. Anyone facing a 1st Offense should heed the implicit warning of this article; it only gets worse, so do not let it happen again.

In the final analysis, a person facing any DUI should do their homework. Read what any Lawyers in whom you might have an interest in representing you have written. Call their Office. Ask questions.

By all means, avoid the "cut-rate" or low-bidder Law Offices. If they don't have enough confidence in their skills to warrant a respectable Fee, and instead offer a bargain-basement price, it's not likely that the Judges and Prosecutors will be very impressed with them, either. That, however, does not mean a person should go broke hiring some smoothie who makes things sound too good to be true, citing example after example of what could be wrong with a DUI case (we could cite example after example of what could cause a jet to crash... and if you start buying into that, you'll never fly again) and charging a King's ransom to tell someone what they want to hear.

In the end, finding the right Lawyer takes time and effort. Beyond all the skill and experience any given Lawyer may have, there has to be a "fit" with the Client. If there's no "chemistry," so to speak, then effective and honest communication will be difficult, if not impossible.

A 2nd Offense DUI is serious business, but it does not have to be the end of the world.