Michigan 2nd Offense DUI - Staying out of jail and Making Things Better

October 7, 2013

As a Michigan DUI lawyer, I handle a lot of 2nd offense cases. I think that a good part of the reason why is that many people who've already had a 1st offense DUI read some of my articles and recognize the accuracy of how I explain the court process. In addition, because the whole issue of alcohol, and particularly your relationship to it, is the focal point in a 2nd offense DUI case, my expertise in addiction and alcohol issues is of immeasurable value. The bottom line is that anyone facing a 2nd DUI charge knows that things are serious, and that it's important to get he best help you can.

While there is certainly a lot to a 2nd offense case, the hardest reality is that getting thrown in jail is a real possibility in this situation. That needs to be avoided at all costs, and it is unlikely that the level of expertise needed to produce the best results will come from the "low bidder." For me, it is the convergence of a rather unique skill set that enables me to provide the best opportunity to stay out of jail and minimize all of the other consequences that are on the menu when you're facing a 2nd offense. Someone who has been through the process before doesn't have to take what I say on faith.

gettingArrested 1.2.jpgIn the bigger picture, it would just be more profitable for me to say what people want to hear in terms of making a 2nd offense DUI all better. However ignoring or refusing to look at and address the main issue a 2nd offense presents is not a strategy. To be completely honest about it, when you've been charged with a 2nd offense DUI, you are invariably seen as either having a drinking problem, or being extremely likely to have one. To put it another way, just about every Judge, at least in the Detroit area, will think that it's highly unlikely that your drinking is not a problem. I cannot even fathom how a lawyer would not begin his or her representation, which is supposed to translate into "help" for the client, from this premise. To ignore this reality is not only disingenuous; it's dangerous. Some think that simply ignoring this whole topic is good for business, in the sense that talking openly about it, as I do, might "scare" a prospective client away.

Think about it for a moment; do you really thing that there is any Judge who will look over from the bench and see a person with a 2nd offense DUI and just figure it's bad luck? If we're going to make things better for you, the first thing we need to do is take an honest look at your situation, and facing a 2nd offense DUI is a unique and troubling situation. At a minimum, you have to admit that a 2nd DUI represents some kind of ongoing problem when it comes to choices made, particularly choices about drinking, and driving. And from the new Judge's point of view, whatever the other Judge in the first case did, it clearly wasn't enough to put a stop to the behavior.

Accordingly, it would be ludicrous to think that the Judge in your 2nd offense case will be thinking that perhaps the 1 year of probation you got in your 1st offense case was just too much. The new Judge is going to be wondering what he or she has to do to make the point and get the drinking and driving to stop. About the last thing the new Judge is going to buy is another "it won't happen again" promise. That pretty much amounts to nothing more than "been there, done that." Instead, the new Judge will be waiting to hear what else you have to say, and show. And you better have something. That's where I come in.

It seems to me that I'm belaboring the obvious, but apparently enough people think that if they blow their money on a lawyer who politely skips over this uncomfortable subject, it will just go away. It won't. Believe me, the Judge will be the one talking about your relationship to alcohol right out of the gate. In fact, if you're required to test as a condition of bond, then you've already had your first taste of that. Simple common sense dictates that any court will closely scrutinize a 2nd offense DUI driver very closely. Anyone in this position is seen as risky. This isn't a novel concept, because every kind of statistic out there supports the proposition that a 2nd offense DUI is a telltale sign of problematic drinking behavior. Think of this in reverse; would you believe that there's any statistic that supports the proposition that a 2nd offense drunk driving charge is NOT indicative of troublesome alcohol use? Also, the recent rise of "sobriety courts" in Michigan is an objective manifestation of the idea that someone facing their second drunk driving charge likely has a problem with alcohol.

A "sobriety court" is created when a local district court becomes, for lack of a better term, "approved" or "certified" to do extensive alcohol rehabilitation for qualified candidates facing 2nd offense DUI cases. "Qualified," means ready, willing and able to do super-intensive counseling and education and testing. Different courts have different programs, but they run for 12 to 24 months under the authority of one or more Judges and a dedicated support staff, including probation officers. The idea is that those who oversee a sobriety court have special training. The big "carrot" held at the end of a stick to entice someone to enter sobriety court is that the sobriety court Judge can override the automatic revocation of the driver's license and grant a restricted license instead. Anyone else convicted of a 2nd offense within 7 years will have his or her license revoked for a minimum of 1 year (this usually plays out over the course of years), and can only thereafter get it back by going through the whole driver's license restoration process before the Michigan Secretary of State's DAAD, or Driver Assessment and Appeal Division.

I'm planning several articles about sobriety courts in the near future, so we'll spare going off on that tangent right now. Here, the point to be made is that sobriety courts exist because the judiciary and the legislature automatically assume that anyone with a 2nd offense DUI has a drinking problem. The goal is to tap into a person's willingness to address that problem right out of the gate, provide intensive rehabilitation for them, and, using the driver's license as a "carrot," provide some incentive for them to make the commitment to get over that problem. It is important to note that the whole reason the driver's license is revoked in the first place is that anyone convicted of a 2nd drunk driving within a 7-year period is legally classified as a "habitual offender." This label carries a presumption that the person's drinking is a problem, so his or her license is revoked until the person can come forward and prove to the state, by what's called "clear and convincing evidence" that their alcohol problem is both "under control" and "likely to remain under control." That means you have to prove sobriety.

Talking about a DUI strictly in terms of the "evidence" is important, but somewhat misleading. A 2nd offense DUI is serious business, and if there is a way to challenge or "knock out" any part of the evidence, that certainly needs to be done. The Police do make mistakes, after all. If you really only had 2 beers and that darn breath machine malfunctioned and gave a reading over the legal limit, or even way over the legal limit, that's one thing. However, if the truth is that you had 6 or 8 or more drinks and got pulled over and wound up charged with a DUI, then what you're really looking for, and really hoping for, is that someone dropped the ball in your case. While it can happen, it doesn't happen enough to make it a wise choice to bank on that as the best and only strategy you should pursue in your defense. Looking for a miracle is not a solid plan to make things better.

Understandably, people like to hear about getting the case dismissed and investigating the scene of the arrest and finding problems in the scientific accuracy of the breath test results. In the real world, though, most people charged with a 2nd offense DUI know that that they were over the limit, and often way over the limit at the time of the traffic stop. The real question becomes how to stay out of jail and how to make as much of the trouble go away as possible, given that it's unlikely that the whole case will just go away. This means it's time to talk about what you need to hear, and not just what you want to hear. Everyone wants to be a millionaire, but not that many people are willing to take the chances and risk everything they have in start-up business ventures to make it happen, and even amongst those that do, only a minority actually strike it rich.

Here, I bring a lot more to the table than just being a DUI lawyer. I've been doing this for over 23 years, so I have more experience than I'll ever need in the courtroom. Since the focus of any DUI, and particularly a 2nd offense DUI is the person's relationship to alcohol, it became obvious to me that being able to diagnose and understand that relationship was of primary importance to the outcome of any DUI case. In every Michigan DUI case the Judge relies upon someone else to make that diagnosis. While it would be much more clinically sound if the diagnosing was done by an actual substance abuse counselor, there simply isn't enough time and money and resources to do it that way, so the court system just delegates that responsibility to the probation department, who then determines if a person has a drinking problem or not, and, if so, how severe that problem has grown. To accomplish this, the probation officer administers a written alcohol-screening test.

This is what I hinted at earlier when I pointed out that someone facing a 2nd offense can begin to grasp my understanding of the process because he or she has been through it before. If you're facing a 2nd offense, then surely you remember taking that test for the probation officer in your first case. Most of the time, you complete the written test yourself, but once in a while, the probation officer will ask the questions about your drinking history, whether you've lost friends or family because of your drinking, or lost a job because of your drinking, and things like whether you've ever tried to cut down or control your drinking, or ever gone to AA, and all the other questions the various screening tools use. Once your answers have been provided, the test is scored, and your score pretty much determines what is going to happen to you by way of classes and counseling.

The big rub here, of course, is that one of the most important inquiries any alcohol assessment screening test will make, including the lesser-quality "over the counter" tests that probation departments use, is whether or not you've ever been arrested for an alcohol-related traffic offense, and, if so, how many times. When you're taking one of these tests for a 2nd offense DUI, and you indicate "2" as the answer for the number of times you've been arrested for drunk driving, you're cooked. Under the scoring key of almost every test used, you've just "scored" yourself a drinking problem.

How can a lawyer argue with this stuff? The only way to be able to do that is to have formal education in the field of alcohol and addiction issues. In other words, a lawyer would have to be schooled as a substance abuse clinician.

I am.

I recognized the importance of being able to speak the language of substance abuse counselors as critical to being a DUI lawyer who can positively influence the outcome of cases. I know that if a probation officer "sees" a person has having a problem, or sees the problem as more severe than it is, ONLY someone with real clinical training will be able to debate that and make a factually and scientifically sound argument in the client's defense. I earned my undergraduate and law degrees a long time ago, but I also knew that going back to study at the graduate level, or, in my case, at the post-graduate level, in a formal University setting would be the only way I'd get the formal education and training in this field and be able to have more credibility than some lawyer just "playing" clinician.

As a DUI lawyer, I can hold my own with anyone in the courthouse. As someone formally educated in addiction studies, I can hold my own with anyone in the clinical setting. As a lawyer with this combined training, I can certainly provide a legal analysis that no one in the clinical setting can begin to match. More important, however, for the client, I can speak with more clinical authority than anyone in the courthouse.

This translates in being able to really help my DUI client. I can protect someone from just getting sold out or rolled over. While anyone facing a 2nd offense DUI is going to be dealing with a presumption that he or she has a drinking problem, I can make sure that my client doesn't get lumped into a "one size fits all" category of just being a "problem drinker," or an "alcoholic." Some people drink all the time, others are binge drinkers, while still others are neither, but just seem to lose the ability to make good judgments when they do drink. These distinctions need to be examined before you get shoe horned into something like expensive outpatient counseling and 4 AA meetings a week where you'll hear stories that don't relate to you at all and hate your life for the next year or two.

In the end, staying out of jail and producing the best outcome means recognizing the reality of your situation, or at least the reality of the Judge's perception of your situation, and then doing something about it. I can help you determine if sobriety court is an option for you or not. In some cases, it's not an option just because the court where your DUI is pending doesn't have one, and won't allow a case transfer. I can make sure that you're not seen as having a problem that you don't, or a more severe problem than you do. I can help protect you from getting all caught up in expensive classes and counseling that you don't need, or that isn't a good fit for you. In a 2nd offense DUI case, all of this begins with coming to an honest understanding of how the Judge and the system see you, and working within that framework. If you're best idea is to simply protest "I don't have a problem," then you're likely to just be seen as someone in denial, and instead of making things better, you've started by making them worse. I can help avoid that and start making things better for you right away.