Articles Posted in DUI

In the previous article, I talked about simplifying things if you’ve been arrested for a Michigan DUI.  Instead of wasting time over-analyzing and over-thinking things like the traffic stop and analysis of the evidence, I pointed out of all the DUI arrests in Michigan, less than 1.5% are thrown out of court, and that less than .15% (that’s correct – POINT one five percent) go through a trial and win by a “not guilty” verdict.  That means that under 1.7% of all the DUI cases get “knocked out” of court somehow, and that more than 98.3% of them go all the way through the system.  Of course, everyone wants to be part of that small, lucky group, but your invitation to that club is not a matter of choice beyond making sure you hire a qualified DUI lawyer who doesn’t miss anything.  No matter how badly anyone wants to, if you’ve been charged with a DUI offense, you have less than a 1.7% chance of beating it.  Accordingly, once the evidence has been carefully examined, and assuming that your case is like the 98-plus percent of all the others, it becomes critically important to focus on making things better.  In this article, I want to look at what that really means.  To avoid turning this article into a textbook, we’ll skip the in-depth analysis and instead take a quick (but good enough) look at some simple scenarios to make our point.

not-getting-results-from-your-workouts-its-not-you-its-your-workout-guru-21731037For purposes of this installment, we will assume that all of the evidence in our scenarios has been examined and that the charge is legally solid.  We also need to assume (because it is a deep subject best taken up in another article) that each situation has been (or will be) properly negotiated, and that the best plea bargain or plea deal possible has been worked out.  In some cases, for example, a charge like OWI with a BAC of .17 or greater (High BAC) can be negotiated down to Operating While Visibly Impaired (Impaired).  In other cases, there are no plea bargains that can be negotiated.  In some situations, a 3rd offense (felony) drunk driving can be negotiated down to a 2nd offense (misdemeanor).  While negotiating the best plea deal is important, it is important to remember that the plea itself is not the be-all and end-all of DUI cases.  I often point out that success in a DUI case is judged by what does NOT happen to you.  I think the reader would agree that if Tipsy Tina manages to get her OWI charge reduced to Impaired driving, but winds up in front of the one Judge in the Detroit area who puts most 1st offense DUI drivers in jail, followed by 24 months of demanding, reporting probation, she didn’t do as well as Swerving Sam, who despite not getting any kind of plea bargain on his OWI charge, only had to pay fines and costs and stay out of trouble for a year of non-reporting probation.

No matter how it happens, we come to a point where the plea is what it is.  Whether a person is ultimately convicted of a 1st offense Impaired driving, a 1st offense OWI, a High BAC charge, a 2nd offense OWI, or a 3rd offense OWI, the most important thing thereafter is to limit the consequences he or she will endure.  This is the point of our discussion.  Let’s be even more clear here: The real goal in every DUI case (and every criminal case, for that matter) is to minimize punishment.  This is done, in each and every case, by combining a clear knowledge of the facts and the law with the skillful management of time, perception and science.  As honest as I am, however, and for as much information as I put up on this blog, I must also be somewhat circumspect and reserved here.  I’ve seen enough of the things I have been the first to write about subsequently recycled on other lawyer’s websites.  While Imitation is the sincerest form of flattery (and I am genuinely flattered by that), I’m not about to teach every other lawyer with internet access how to get better results like mine.  I spent more money than the price of a car on my post-graduate education in addiction studies in order to help my DUI clients enjoy better outcomes in their cases, and be able to guarantee to win every one of my driver’s license cases.  Perhaps most of all, and this is about the only polite way to say this, magicians don’t tell how the magic is done.  That’s a nice way of saying that there is more than this to what I can say here.  As the magic shop tells it, “The secret is told when the trick is sold.” I always want my clients to know exactly what we’re doing, and why, but much of that is best reserved for our private conversations.  Having said that, we’ll be as candid here as we can…

If you’ve been arrested for a DUI in Michigan, you could almost spend forever reading websites and relevant blog articles.  Sometimes, for as much information as a person can find, it is just better to avoid getting overwhelmed and simplify everything by finding a lawyer you can trust to examine and handle everything for you, especially if you’re not being overcharged or getting sold out.  In my role as a Michigan DUI lawyer, I have published well over 250 DUI articles, and most of them are rather detailed, often providing an up-close examination of one, or just a few key aspects of the drunk driving case process.  In this article, I want to skip all of that and focus, instead, on the very real experience of just wanting to get past a DUI as painlessly as possible while knowing that the facts of the case were properly checked out and that the course of action you choose is the absolute best, under the circumstances.

raf,750x1000,075,t,353d77_4d8b4ffd91We cannot overlook that there is big money in the more complicated approaches marketed by some lawyers.  The simple truth, however, is provided by the Michigan State Police Annual Drunk Driving Audit.  This audit is required by law and accounts for every single drinking and driving arrest that takes place each year, as well as every step taken in every one of those cases in every court within the state:  Last year (2015), out of 43,553 DUI and related arrests in Michigan, only 62 people fought their cases at trial and won.  That equals .144% or, to put it in words, zero point one four-four percent, meaning less than .15 percent.  Over the last 5 years, from 2011 through 2015, there have been 244,839 DUI related arrests in Michigan; only 334 of those people went to trial and were found “not guilty” dropping the average success rate from .144 in 2015 to .136% over that 5-year period.  A quick perusal of lawyer websites reveals the popular marketing tactic of listing all the things that “could” potentially be wrong with a DUI case, although, as the numbers show, not often enough to even equal a one-quarter of one percent acquittal rate.  A variation on this theme is to run through all the things the police must get right for a DUI charge to stand up in court.  You can do that with just about anything in life and make success sound like a miracle, but the fact is, we all do things involving multiple steps a million times every day without incident.  Making coffee can be made to seem like a ballet of complicated and risky steps, but for most of us, it’s something we do almost on auto-pilot.  Once in a while, we might turn on the coffee maker before we’ve added water, or maybe added 1 scoop of coffee too few, or too many, or even drop and break the mug, but those are the exceptions, and not the rule.  Ditto for DUI arrests.

At the end of the day, a DUI case is all about being able to prove that a person arrested was over the legal limit at the time he or she was driving.  The protections of the legal system are put in place to keep an innocent person from being found guilty of a crime he or she didn’t commit.  If you were not drinking, or you only had 1 or 2 drinks with dinner, then the system is supposed to prevent you from being convicted of DUI.  If you did have a few too many, however, then your only hope to get out of the case completely is that the police hopelessly bungled the evidence against you.  And while things do go wrong for the police once in a while, for the most part, they’re typically not botched so catastrophically that you’ll find a Judge who is anxious to throw a DUI charge out of court.  Judges do NOT view drunk driving cases as a game in which they sit and just hope to find some technical little flaw in the evidence so that they can dismiss all charges.  When is the last time you ever heard of that happening in a drinking and driving case, or, for that matter, ever heard about a Judge known for being “easy” on drunk drivers?  The answer, of course, is never.

In part 1 of this article, we began our examination of sobriety court.  We noted that the goal of sobriety court programs, which usually reserved for 2nd offense DUI cases (and, in some cases, 3rd offenses, as well) is to help people stop drinking through extensive counseling and treatment coupled with intense probation, supervision and testing.  I likened DUI sobriety courts to restaurants, noting that everyone is different, and while I may not care for the one you think is really great, and you might find my favorite to be nothing special, either.  I further pointed out that some sobriety courts are kind of fixed on a one-size-fits-all approach, using the “traditional” intensive outpatient treatment program along with AA as the only treatment option, while others are more flexible, and understand that different recovery methods work for different people.  It was pointed out that, amongst those who ultimately get sober and really “get it,” the light-bulb moment can come at any time, and that some people even have their epiphany after treatment has ended.  We ended by seeing how the old AA adage, “fake it until you make it,” that advises people who aren’t fully committed to sobriety to keep coming to meetings can be both a good thing, especially when it ultimately leads a person into recovery, and a bad thing, particularly where it wastes resources in sobriety court programs on people who are not genuinely interested in getting help with their drinking.  Here, in part 2, we’ll pick up right at that point.

Dollarphotoclub_919693865-500x300I don’t have a solution to the dilemma of who should “do” sobriety court other than to generally, if not gently, advise against it if you’re not truly interested in getting help.  This assumes, of course, that you believe that your relationship to alcohol has been, at least on occasion (as in 2 DUI arrests), problematic.  We don’t need to worry about labels (alcoholic, alcohol abuser, alcohol dependent, binge drinker, etc.) but rather that you merely perceive your use of alcohol as being, at least on those occasions, troublesome, and that you see drinking as not an entirely risk-fee proposition.  You need to see at least this much on the inside looking out, because you need to understand how YOU are seen from the outside looking in.

In plenty of my other DUI articles, I’ve explained that pretty much everyone – meaning the court system, the Michigan Secretary of State, the police, the public, and, most of all the Judge –  sees a 2nd offense drunk driving as virtual proof that the person has a drinking problem.  This is so much the case that the Secretary of State automatically revokes a person’s license for any 2 alcohol-related traffic conviction within 7 years of each other.  In that regard, I can call upon my extensive experience as a Michigan driver’s license restoration lawyer, where my client base is exclusively made up of people who have quit drinking for good.  As much as my clinical education and DUI experience bring to the table, it is in having heard (collected, really) the stories of thousands of people who have gotten sober that I have seen how, for some people, a 2nd DUI is THE wakeup call, while for others, it is not.  I’ve handled and won (the first time around, no less) a license appeal for a fellow with 13 prior DUI’s.  The first 12 were not enough for him to see the problem.  Another client with 9 DUI’s had either 22 or 23 prior stints in treatment, and none of them worked; he got sober through AA while in prison.  The point I’m driving at is that while the whole world sees a 2nd DUI offender as having a troubled relationship to alcohol, plenty of those 2nd offenders (and 3rd offenders, 4th offenders, etc.) do not.  What matters, as a starting point, is that anyone facing that 2nd or 3rd offense understands that NO ONE is going to agree that they don’t have some kind of problem, and that it’s just “bad luck” that they got popped again.  That never happens and it never will, and to rely on “unlucky” as part of your defense is a sure way to screw your case up in the worst possible way.  Even if you don’t believe you have a problem, accept, at the outset, that the court system absolutely does.

Sobriety Courts were first introduced in Michigan on January 1, 2011, as a pilot (test) program.  That pilot program became permanent as of January 1, 2015, and the number of Detroit-area sobriety courts (meaning those in Wayne, Oakland and Macomb Counties) has continued to grow ever since.  In this 2-part article, I want to look at what these drunk driving programs are all about, and how they can sometimes come up short.  I want to examine this from a somewhat different perspective than the typical lawyer, and even the average DUI lawyer.  Although I am, first and foremost, a Michigan DUI lawyer, I also have a formal, post-graduate education in the field of addiction studies and fully understand the development, diagnosis and treatment of alcohol problems as much as I understand that you hire a DUI lawyer to get you out of trouble.  The real bottom line is that you pay your DUI lawyer to make things better for you, and, in the right circumstances, sobriety court can be a useful tool to help accomplish that.  The goals of sobriety court programs are great, and there is a lot of potential for these programs to be very successful, but they can also suffer at the hands of close-minded thinking.  There are many ways people achieve sobriety; I have seen, first-hand, how well a more holistic approach can work, having been part of DUI cases where an astute, flexible and well-informed Judge has allowed a person in a sobriety court program a choice amongst various treatment options in order for him or her to find and connect with one that is a good fit.  By contrast, I have also seen how a “traditional,” one-size-fits-all approach that matches a person with the wrong recovery process produces nothing more than a lot of frustration and wasted time.

a4108b710084022c521d7888974850d2The ultimate goal of sobriety court is to help people get sober.  Sobriety courts offer extensive treatment and counseling coupled with intensive probationary supervision.  A person in sobriety court will be tested (breath and/or urine) very often to make sure he or she isn’t drinking or getting high.  The ideal candidate is a person who, faced with a 2nd offense (and, in some cases, even a 3rd offense) DUI, realizes that his or her drinking has become a problem and wants help to stop.  In the real world, a 2nd (or subsequent) offense DUI will cause a person’s driver’s license to be revoked.  This means taken away for good, and not merely suspended.  Because one of the key benefits of sobriety court is that the Judge can override the Secretary of State’s mandatory driver’s license revocation, it can seem like a real lifesaver.  I suppose the problem comes down to this:  Sobriety court sees itself as a way to save a person’s life, and the driver’s license as a reward for all the work a person will be doing; people see the driver’s license as the grand prize, and think they’ll figure out a way to “get by” and make it through the program.  If you’re getting a sense that these are demanding programs, then you’re getting the idea.

From my perspective, the whole concept of sobriety courts is wonderful.  The reality, however, is that sobriety courts are like restaurants; every one is different, and where I may not like the one you think is so great, you may not care for the one that is my favorite.  In that sense, it comes down to “different strokes for different folks.”  Although it’s not some “newfangled” idea, the notion of matching a person to the kind of treatment that works best for him or her is growing in popularity, limited really only by the existence of those who don’t have the skill set to offer it.  In other words, whereas the old-school idea of treatment used to be an intensive outpatient program (IOP) followed by aftercare (often a mix of individual and group counseling).  AA is almost always part of that deal, as well.  This is a solid approach, and it can teach a newcomer some very important basics of recovery.  The problem is, however, that it’s not a good fit for everyone.  Some people dread being in groups and talking about themselves, while others can get “weirded out” by individual counseling.  If there’s one thing that real world experience and studies have repeatedly validated, it’s that pushing someone into the “wrong” kind of treatment will not help him or her get better.  In fact, it can actually scare a person away from coming back for help, because the person doesn’t realize that there are other kinds of help available.

Soon after a DUI arrest, upon a person’s release, a lot of things happen.  As a Michigan DUI lawyer, I am familiar with the emotional and the “what’s next?” stress that follows someone’s release from jail.  It’s not like a you leave the police station or jail and can go to the parking lot, get into your car, and drive yourself home.  In some cases, you need someone to post bond for you just to get you out.  Then, you have to go and get your vehicle out of impound, and you need even more money to get it out.  Once you are out of jail and the car is out of impound, that doesn’t mean that the misery of the whole arrest experience is anywhere near out of your head; you can probably still almost smell and taste that nasty jail cell.  In this article, I want to go over the first few things you should do upon your release.  While it is understandable that this whole situation “feels” like and emergency, there is nothing you need to do so quickly that you don’t even have time to think about it, or otherwise consider your options, and that includes hiring a lawyer.  In fact, the biggest mistake you can make is to act too quickly.

bail-someone-out-of-jailChances are, you were given some kind of papers (these should, but don’t always include an actual ticket, a DataMaster breath result sheet, a Michigan Temporary Driving Permit, and a bond receipt) and some kind of instructions about calling the court.  Sometimes, a ticket will have, instructions directing you to call or appear “on or before” a certain date, or, there may be a date certain on it.  As certain as that date looks, don’t worry; that’s not your actual court date.  In many cases, if you contact the court within the “on or before” date on your citation, you’ll be asked if the address information on the ticket is correct, and, once you confirm that it is, you will be told that a court date will be mailed out to you.  In almost every district court in Macomb, Oakland and Wayne County, it will take at least a month from the time of your arrest until your first “real” court date.  Places like Clarkston, Troy, any of the Grosse Pointes, Plymouth/Canton, Sterling Heights, Clinton Township, Shelby Township and New Baltimore often take even longer to have you in for your first substantive proceeding.

This brings us the very first thing you should do (after, of course, getting your vehicle out of impound, because on top of every other money grab, you pay storage fees while it sits there):  Slow down, relax, and start researching things.  I’m sure that being told to relax at this point is kind of like telling an upset person to calm down.  That never works, but here, the implications of what’s happening here go beyond just being riled up at the moment.  There are things to be done, and it will be far better to do them with a clear, cool head than it will be to be guided solely by raw emotion.  In more than 25 years as a practicing lawyer, I have been contacted often enough by people right after an arrest; these folks are genuinely afraid, and, therefore, vulnerable.  There is an operating belief in the legal industry that drives lawyers to advertise things like “phones answered 24 hours” in order to be there and lock in these people right when they call.  For many people, the first lawyer they speak with who has any answers or reassurance becomes the “savior” they hire.  This is why so many of the personal injury lawyers do hospital visits.  However, the better practice is always to consider all of your options and make the best (as opposed to quickest) choice.

It’s been a while since I have written about the importance of the BAC result in Michigan DUI cases.  In this article, I want to take another look at the role of a BAC result in an OWI (Operating While Intoxicated) case.  To begin, I need to make clear that this is not an article about High BAC drunk driving charges.  Sometimes called “superdrunk,” the High BAC charge can (emphasis on the word “can”) be brought when a person’s breath or blood test result following a drinking and driving arrest is .17 or more.  I have handled cases that have been charged as High BAC when the BAC result is right at .17, and I have handled cases where a person’s BAC was way above that (including a very recent case with a BAC of .24) where an unenhanced OWI 1st offense was charged instead of the more serious High BAC.  The point I want to make in this article is that, independent of the offense actually charged, the BAC result is extremely important in every DUI case, and will have a direct impact on how things ultimately work out.

hello-my-name-isFor everything that can be said, the bottom line is that the higher a BAC result, the more it “looks” like a person has a drinking problem.  I put the word “looks” in quotes because that’s exactly what we have here – a kind of general appearance that almost automatically gives rise to a not-quite accurate conclusion.  The absolute fact of the matter is that different people have different tolerances to alcohol, and while anyone with a .18 BAC is certainly really drunk, there are some people who couldn’t drink that much if they tried, and would pass out first, while there are others who could ingest that much and still keep going.  In other words, an elevated BAC result is not always reflective of a tolerance to alcohol developed by excessive and problematic drinking.  This isn’t just opinion, either, it’s a clinical reality, although one that is largely ignored by conventional thought and runs counter to the court system’s inherent “alcohol bias.”  Indeed, so that I could more fully understand these important nuances of the development, diagnosis and treatment of alcohol problems, I went back to graduate school, as a lawyer, and completed a post-graduate program of addiction studies.  Everyone will have an opinion on the subject, but the reality is that people with higher BAC results will always be seen as more likely to have a drinking problem, even if they don’t.  Opinions, however, no matter how strong they might be, must always be subordinated to cold, hard facts.

Yet as much as it is a fact that not everyone with an elevated BAC result has a drinking problem, it is also a fact that such a result often does signify that a person has at least some kind of issue with alcohol.  In other words, we cannot go and lose all credibility by declaring that BAC results are simply meaningless, because they’re not.  Moreover, given how important BAC results are considered by the court system as a whole, it is critical that we proceed diplomatically and in a way that carefully and skillfully differentiates those for whom an elevated BAC does not, on a single occasion, signify a troubled relationship to alcohol.  Success in this regard can only be had by first understanding how and why the BAC result is considered so significant.  To fully appreciate how an elevated BAC result is perceived in a DUI case, you must also examine how a lower result is seen, as well.

How is it that by hiring a lawyer, you can almost always “get out of” a traffic ticket?  In this article, I’m going to skip all the discussion about policy and theory (the reader is likely not interested in that, anyway) and cut right to the chase about keeping points off of your record in a traffic ticket case, and how that applies in criminal and DUI cases, as well.  Whether you like it or not, there is a certain reality at work here, and in some ways it is related to the old observation that, “It’s not what you know, but who you know.”  Again, I want to avoid analyzing why things are the way they are, or how they should be in a perfect world, so I will use a real world example from my own life to illustrate:  In the process of building our home, my wife and I were asked to pick out things like plumbing and light fixtures (my wife, as it turned out, did all the picking, with my input being limited to a bunch of “uh-huh” and nodding-in-agreement responses) at certain supply businesses.  At some of these places, nothing could be purchased by the public at large, and at others, the price offered to those on the “inside” (builders, contractors and designers) was hugely discounted over what the public (we) would pay.  It may not be fair or right or whatever, but it is what it is, and unless we wanted to pay a price that was, in some cases, 40% more, we played by the rules, my wife picked out the stuff, and the ultimate purchase was made by our builder or designer.

img_1806The point I’m making is that there is a similarity when it comes to things like traffic tickets, and even criminal offenses and DUI charges.  In some cases, a lawyer, like me, walks in and just gets a deal that an unrepresented person can never procure simply because one is a lawyer and the other is not.  It’s why, for example, cops don’t get traffic tickets and why Chrysler, Ford and GM offer employee pricing.  It is what it is, and for my short time on the planet, I’m not about to take up the cause of whether that’s right or not; I offer my services to those who will pay for them in order to avoid the points on a traffic ticket or make things better in a drunk driving, misdemeanor or felony case.  When I need to, I go to someone to get the “friends and family” deal on a car, and I hire a contractor to do whatever work needs to be done at my home, and/or to avail myself of his or her discount on the supplies we need.  There are some “do-it-yourself” diehards who will try anything to save a buck, and to them I say, “good luck.”  I have no interest in either being one of those people, nor do I want to deal with them.  My own dad, who spent his career as a letter carrier for the U.S. Post Office and therefore did not earn a ton of money, was a firm believer in hiring a professional to do the job; he paid the plumber, the electrician and the mechanic to do things right.  While other dads may have spent an entire weekend figuring out and trying to do their own car repair, my dad was only too happy to drop the car off, have the mechanic fix it, and know that it was done correctly by someone who’s done that same repair countless times before.  I’m the same way both in terms of what I do as a lawyer, and what I hire outside professionals to do for me.

As I noted above, this connects with, but is certainly not limited to the idea of “who you know.”  In other words, there are courts a lawyer can walk into and just because he or she knows everyone, get a really good deal.  On the other hand, some lawyers may take cases in far-away courts (this is something I avoid completely by keeping things strictly local by appearing pretty much only in Wayne, Oakland and Macomb County courts) and still be able to work everything out, just because he or she is a lawyer.  In one sense, that’s part “good ol’ boys network,” and in another sense, it’s not that at all.  At the end of the day, any lawyer who walks into any courthouse carries at least the implied understanding that either something can be worked out amicably, or it can be dragged out as a huge, time-consuming mess.  This is the real, if not unspoken point of hiring a lawyer in the first place…

There is no shortage of DUI cases in Michigan.  According to the annual drunk driving audit of all courts, required by law and conducted by the Michigan State Police, there were approximately 46,248 alcohol-related traffic arrests in 2014 (2015 figures won’t be available for almost another year).  Even though there are plenty of DUI arrests during the fall and winter, things do get busier when the weather is warmer.  Boats get put in the water, barbecue parties happen all the time, the concert season swings into full gear, and people are just more inclined get out more than they do in the colder months.  Whereas most of my 250-plus DUI articles focus on a particular aspect of drinking and driving cases, I want to put up a short installment here that is more about general observations rather than specific analysis of drunk driving cases.

things-you-should-know-e1349801000893Cell phone tips about drunk drivers are relatively common nowadays.  Absolutely everyone has a cell phone.  The Police are experts at detecting signs of impaired driving, but when another motorist sees it so plainly that he or she picks up the phone and calls it in, it’s not unusual to find the driver was really, really drunk.  To date, I’ve never heard from anyone who has been erroneously called in and subsequently pulled over for being drunk and was found not to be.  In fact, I have not, in my 25-plus years, even met more than a couple of people who have ever been asked to step out of their vehicle who was not ultimately arrested for drinking and driving.  By the time a police officer gets to that, and barring a miracle, you’re going to jail.  If there’s a summary to this paragraph, it is probably that if you get called in as a suspected drunk driver or are asked to step out of the vehicle by the police, you get arrested.

If you have no prior DUI convictions within 7 years, you should almost always take the breath test.  The bad news here is that there is no way you can know when you should refuse.  If you decline, the Police will write you up for that refusal, and your driver’s license will be suspended for 1 year, unless you win (unlikely) a hearing at the Secretary of State or go to circuit court (different from the court where your DUI is pending) and file a petition for a restricted license.  That costs a lot of money and takes weeks and weeks, during which you cannot legally drive.  In 2nd offense and 3rd offense DUI cases, refusing the breathalyzer isn’t quite the same deal, although it almost never helps anyone, and, moreover, some 2nd offenders are finding themselves eligible for a restricted license if they go through a sobriety court, all of which is really complicated by having an additional suspension for refusing the breath test.  On top of all this, you can generally count on the police getting a warrant for a blood draw, especially for someone who has a prior DUI (or even more than one) on his or her record, so all refusing the breath test really does is make you look bad and causes you to come back with a elevated BAC (blood tests usually produce higher BAC results than breath tests).  Short answer; take the test.

A rather large percentage of my DUI practice involves handling second time drinking and driving cases, meaning cases for people that have had a prior drunk driving a long time ago, as well as people facing an actual 2nd offense DUI charge. The reason for this is pretty simple: Those who have been through the process before recognize that my various explanations of the DUI process are pretty much spot-on, and have learned to separate what one wants to hear from what is true and accurate. There is, at least legally speaking, a vast difference between a 2nd offense DUI charge and merely going through the process for the 2nd time after a prior offense many years ago. A 2nd offense DUI charge is one, by law, that is brought within 7 years of a prior such case. Technically speaking, a DUI is a “second” if the arrest date for the current charge takes place within 7 years from the date of the conviction for the first. This does not mean, however, that everything is just peachy-good simply because a prior DUI falls outside of the 7-year window. Sure, a whole boatload of legal problems is avoided when your second DUI is not technically a “2nd offense,” but you still have to deal with the implications and reality of that prior offense, even if it cannot be used to enhance the penalties of the current charge.

ball-number-2-clip-art-free-vector-4vector.pngRecently, while attending a hearing in a driver’s license restoration case, a hearing officer redefined things for me and my client (who did win his full license back, by the way) after he characterized his 2 DUI’s as “mistakes.” She looked up, interrupted him, and said this: “Those weren’t mistakes. When you drove drunk the first time, you committed a crime. When you did it again, you became a habitual criminal.” That may sound harsh, but it gives a glimpse of how these cases are seen in the larger world. I’m sure one of the reasons I have such a robust DUI practice is that I am unique in pointing these things out, and speak rather candidly, if not at least diplomatically about these subjects. Avoiding real-world discussions and/or sugar coating things doesn’t help anyone. I have no tolerance for being patronized, and, in turn, have no inclination to do the same to anyone else. It is very easy for a lawyer to simply agree with the client (remember, the customer is always right) and not want to offend him or her, but the reality is that if you’re going to do anything good for a person facing a second DUI, it means you may have to get a little uncomfortable and tell it like it is. And it is this way: a person going to court for a DUI who has had a prior drinking and driving conviction is going to be seen by the Judge (and almost everyone else) as having, or as being at a substantially increased risk of having, a problematic relationship to alcohol.

I say this because most people who contact a lawyer for a second DUI, even if the charge itself is not a “2nd offense,” will want to explain that no matter how things look, they don’t have a drinking problem. If you sat in my chair, you could pretty much bank on hearing that in almost every such case, and usually as one of the very first things a person will say, at that. I understand this, but as easy as it would be for me to nod and agree, if I’m going to make things better for my client, then I need him or her to understand that you can say that until the end of time, but, in only a few exceptional circumstances, you’re not going to get the Judge to just go, “Oh, okay, well, I’m glad you cleared that up…” You don’t have to think about this too long or hard to realize that it doesn’t matter what you or I think. In the final analysis, it matters what the Judge thinks, and, when you think about that even a little, you begin to realize that nothing else matters nearly as much….
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As a Michigan DUI lawyer, I have to take any number of things into account when I handle a DUI case. Where the charge is brought is always one of, and often the single most important factor in how things will work out in any given drunk driving case. Because of the profound effect of location, I generally limit my DUI practice to the courts of Macomb, Oakland and Wayne Counties, although I will go to Livingston County on occasion, as well. As I thought about this topic and how to approach it for this installment, it occurred to me that the old idea of being “a fly on the wall,” so to speak, might help, so I thought I’d bring the reader into a few conversations had in the privacy of my office, with my staff, or in the confines of my car (hands-free, on Bluetooth), as I “talk shop” with a colleague who does DUI work in a different area of the state. First, let’s move into my office…

location-location-location.jpgMy practice (drunk driving cases and driver’s license restoration appeals) means that my schedule often changes by the hour. I may, for example, get out of court one morning in Clinton Township and call into the office as I walk to my car, only to find out that I need to come straight in because a new DUI case from Rochester Hills needed to be squeezed in. As I listen to some preliminary details about the new matter (and come to accept that I’ll have another protein bar for lunch), the first thing I’ll be told is where the case is pending. It’s that important. In fact, there are many local district courts where the same DUI case will play out differently depending on the specific Judge to whom it is assigned. If there can be different outcomes between different Judges in the same court building, you better believe there can be even greater differences amongst various courts. Accordingly, the 3 main rules of real estate are equally important in DUI cases: Location, location and location. Now, let’s get into my car…

If you could eavesdrop on any of the phone conversations I have with other lawyers about drinking and driving cases, it is just expected, and taken as a given, that any discussion about a specific case will at least begin by explaining where it is pending. I’d imagine that when emergency room physicians compare notes, it is important that they clarify what brought the patient in, like an automobile accident, gunshot wound, or sports injury. In the world of DUI’s the “where” is really the foundation of the case. Thus, you would hear a story that begins like, “I had this one case the other day in Sterling Heights,” or “I had this one guy in New Baltimore” (or Shelby Township)…” When Lawyers discuss DUI cases, they more often first talk about the court in which it is pending or the Judge to whom it’s assigned rather than the specific details of the case, unless they are highly unusual, and even then, it clarifies things to examine the case within the context of its specific location.
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