Michigan DUI Second Offense - Staying out of jail

June 14, 2013

This article is going to be a rather direct examination of what most people facing a 2nd offense DUI in Michigan have as their most important concern: Staying out of jail. As a Detroit DUI lawyer who limits his Michigan DUI practice to the metropolitan Detroit, tri-county area, I have a wealth of experience in these local courts and know how to avoid a jail sentence where and whenever possible. This article will NOT deal with sobriety court: That option is only available in certain places and it's a subject that has its own section on my website.

First and foremost, a DUI case is what I call "an accident of geography," meaning no one plans on getting arrested for drunk driving in the first place, so where it happens is never a matter of design. In that regard, certain courts are just tougher than others. Of the three local, Detroit area counties, the courts in Oakland are much less "lenient" than those of either Macomb or Wayne. That's just a fact. Even so, there are certain cities in Oakland County, like Royal Oak and Huntington Woods, that will seem much more "forgiving" than places like Bloomfield Hills or Rochester Hills. The same holds true amongst the various cities of Macomb and Wayne Counties, and, I imagine, for every county in Michigan with more than one District Judge. The essential difference is that if you had a choice, you'd always prefer to wind up in pretty much any court in Macomb or Wayne over as opposed to anywhere in Oakland County

Jail Hands.jpgLet's start with a dose of reality: The undeniable truth in a 2nd offense DUI case is that you look like you're a danger on the road. I defend DUI cases and keep my client's out of jail all day long by recognizing the way things really work. If you're going to have success at staying out of jail, you need a lawyer, like me, who darn well knows exactly what the Judge assigned to your case is thinking, and one thing you can count on is that there isn't a Judge (or really anybody, for that matter) who doesn't see a second time DUI offender as risky. This means that blundering into court and trying to explain that a second DUI charge is only a case of bad luck, and doesn't really represent anything to worry about, is worse than rolling into court with no plan at all.

Here's the rest of the bad news: The law essentially presumes that you have an alcohol problem in a Michigan 2nd offense DWI case. You are legally and technically classified as a "habitual offender." As a result, the court is required to order you into counseling. There's no way around it. In addition, the law requires that your driver's license be revoked and that you cannot even start the process to ask for it back for at least a year, and only then after you attend and win a hearing before the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). There, in order to win your license appeal, you must prove, by clear and convincing evidence, that your alcohol problem is under control and that it is likely to remain under control. There's a lot to all of this. If you're facing a 2nd offense, you don't need me to "rub it in," but surely you know this is a much bigger deal than a simple first offense.

Here, it's important to reiterate the focus of this article: Staying out of jail in a 2nd offense drunk driving case. We could make an endless examination of the nuances of 2nd offense cases, but here, we're only concerned with not getting locked up. The good news is that if you succeed on that score, you will be free to attend to and deal with all these other things. While none of this is fun, avoiding incarceration in a 2nd offense DUI is the first order of business to which I attend as your lawyer.

For the most part, this is manageable. With a few exceptions, going to jail is not necessarily automatic. Even so, you have to have a plan that takes into account the 3 key variables present in every 2nd offense case. That's where I come in...

First, you have to know the Judge. I could write a book about this, but the bottom line should be rather self-evident. As a Michigan DUI lawyer, part of the advantage I bring to the table is knowing what works, and what doesn't, with each of the Judges before whom I regularly appear. Pursuing a strategy that just doesn't "cut it" with your particular Judge is not only a waste of time and money, but a wasted opportunity to have done something that would work, as well.

Second, you have to find a balance within the whole "habitual offender" designation, as well. While it's foolish to ignore the legal presumption that your drinking has become a problem, it's also crazy to run headlong into the role of out-of-control alcoholic. It is perhaps here that I am unique amongst all DUI lawyers. Beyond having spent more than 2 decades as a student of alcohol/legal issues, I am formally involved in the University, post-graduate study of alcohol and addiction issues. I can present far more than the tired old "go to AA" suggestion to explore your relationship to alcohol. Alcohol issues can be addressed and fixed a million different ways, including things like cognitive behavioral therapy, brief interventions or others things like Rational Recovery. Remember, the court has NO CHOICE but to order some kind of counseling in a 2nd offense case, so being proactive here can pay big dividends later on, while sparing you the expense and inconvenience of some one-size-fits-all counseling or recovery plan that you'll hate (and pay for) every minute. I have no problem with AA, but addiction professionals now know, through extensive clinical research, that AA only works for about 1 out of 3 people. Think about it; the very name, alcoholics anonymous, should give pause to anyone whose drinking may have caused some problems (like a 2nd DUI), but doesn't meet the definition of "alcoholic."

Third, you have to just understand how being a 2nd DUI offender is seen from everyone else's perspective beyond your own. You may feel strongly that this is just an episode of bad luck, and that your drinking isn't anything to worry about, but if you hire a lawyer who goes along with that approach, you'll be wasting your money and finding out, the hard way, that the Judge completely disagrees with that assessment. There isn't a Judge anywhere who will just shrug off a 2nd offense DUI. Whatever else, you can add to this mix that Judges are elected, and being "easy" on drunk drivers is not a political asset. You'll need to be able to essentially prove to the court that this won't happen again, and not just because you say so. Telling the Judge that this has cost you too much money to teach you a lesson is not going to cut it.

All three of these things work in combination. To put this in perspective, in a court that has a sobriety court option, even if you don't go that route, you should understand that there is likely a default to the AA-centered "disease model" of alcoholism, and thus you can count on being ordered into counseling consistent with that approach. While it's unfortunate that what the Judge believes is really the end-all of all considerations, that's the real world, and going before a Judge who thinks AA is the only way to get better and arguing with him or her that you'd rather do some kind of counseling that involves rational emotive behavioral therapy, or cognitive behavioral therapy may not work out too well. By the same token, if you just "go to AA, " and you hate it, and find yourself before a Judge with a better working knowledge of the continuum nature of alcohol use, abuse and dependence, then you will have gained nothing by way of advantage and will probably hate your life for the time you spend in multiple weekly meetings.

The point is that staying out of jail in a 2nd offense DUI requires experience, knowledge and skill. If you want better results in your Detroit area DUI case, you'll have to look beyond hiring a lawyer whose best qualification is being the cheapest. You may also want to look beyond those lawyers who will take any case, anywhere. At a minimum, you want to explore those DUI attorneys who are relatively "local" to where your case is pending, and who are invested in helping you more than just telling you what you want to hear. You need a lawyer that can help you devise a strategy that will work. As we've seen above, there are three primary ingredients to doing that. If you are facing a DUI in the Detroit area, I will make sure we find the proper mix of them to produce the best result in your case.