Michigan Criminal Defense Lawyer Blog

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.

It 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.

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

A fairly common question that arises in my DUI Practice is whether a Client's prior DUI occurred more or less than 7 years before the current case for which I am being hired. This is important, because a 2nd DUI within 7 years is treated as a 2nd Offense, whereas if the DUI occurs even 1 day past the 7-year mark, it is treated, by law, as a 1st Offense.

The consequences of a 2nd DUI within 7 years are substantial, at least when compared to those imposed in a 1st Offense case. While everyone's first concern is, understandably, to stay out of Jail, as a Lawyer for whom a substantial part of his Practice is Driver's License Restoration Cases, I tend to look a little deeper and worry about long-term consequences, as well.

In that regard, the DUI consequences to Driver's License is perfectly clear: If a person is convicted (meaning they are found guilty of, or otherwise plead guilty to) 2 alcohol-related Offenses within a 7-year Period, their License will be Revoked. Technically speaking, that Revocation is for life. Although they become eligible to file for a License Appeal after 1 year has passed, if they do not file, and win, and no matter if 50 years go by, they cannot ever simply go to the Secretary of State and "get" a License. They must file for and win a License Appeal, first.

This becomes even more troublesome when you add in that the Secretary of State DOES NOT grant a License back to a person who is on Probation. In order to win a License Appeal, the Secretary of State requires a person to prove a period of voluntary abstinence, meaning a period of Sobriety where they were NOT subject to any legal or punitive consequences for drinking. This means that even if a person is not tested for alcohol, the State will deem any period of time that they were on Probation as NOT a demonstrable period of voluntary sobriety.

When you factor in that most Probationary Sentences in 2nd Offense cases are for 2 years (although it can sometimes be limited to just 1 year, particularly in Macomb and certain Wayne County courts), this means a person will be without a License for at least 2 ½ to 3 years. To me, that's a huge consequence, and perhaps the biggest (and certainly the longest lasting and most expensive) of them all.

The best way for me to determine if a person has had a prior DUI within 7 years, unless the Client is absolutely sure of the dates, is to review their Driving Record. In another blog article, I described how a person goes about obtaining their Driving Record for a License Appeal, but the same process applies for any reason a person may want to examine it, or have their Lawyer look it over.

Continue reading "DUI in the Detroit Area - Is it a 2nd Offense, or not? " »

In part 1 of this article, we began examining the probability of avoiding jail in 1st and 2nd Offense DUI cases. We saw that with the exception of 1 Judge in the 48th District Court in Bloomfield Hills, a 1st Offender can safely assume that they are NOT going to face any Jail time.

We next looked at 2nd Offense cases, and saw that, while Jail can usually be avoided in Macomb and Wayne Counties, things change if the case is pending in an Oakland County Court, and we also noted that, generally speaking, the farther north one goes, the worse things get.

In this second part, we'll pick up by looking at 3rd Offense cases, and we'll wrap up by looking at certain general principles that apply in all cases, be they 1st, 2nd or 3rd Offenses.

To begin, we should bear in mind that 3rd Offense (Felony) cases are an entirely different species from their 1st and 2nd Offense Misdemeanor relatives. Of course, part of that difference is that while 1st and 2nd Offense cases are Misdemeanors, meaning punishable only by a Sentence of either 93 days or 1 year in the County Jail, respectively, a 3rd Offense is a Felony that can carry a Prison Sentence of up to 5 years.

Before anyone starts fearing being carted off to Jackson Prison to start a new career in License Plate Manufacturing, it should be noted that a Prison Sentence is usually reserved for people with far more than 2 or 3 prior DUI's. The law does, however, require a person convicted of a 3rd Offense to serve at least 30 days in Jail. That's not negotiable.

The good news, if you can call it that, is that in Macomb County, a person who has only 2 prior DUI's , and who is facing a "true" 3rd Offense (meaning it is only the 3rd time they've ever been charged with a DUI) can, if things are handled correctly, avoid a Felony conviction altogether. In other words, a "true" 3rd Offense, if things are done right, can be reduced to a 2nd Offense Misdemeanor (and can, possibly, also avoid a Jail Sentence). This is not an option in Oakland County, and is seldom, if ever done in Wayne County. This is almost entirely a Macomb County deal.

Continue reading "DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 2" »

Amongst the various articles within the Drunk Driving section of this blog, I have addressed the issue of avoiding Jail in 1st Offense DUI cases, 2nd Offense cases, and 3rd Offense cases, albeit separately. It has been politely suggested to me that not everyone wants to engage in the kind of time consuming, in-depth research that I find so interesting, and that some would prefer a single, more overview-type article about staying out of Jail in DUI cases covering all 3 levels of the Offense. This 2-part article will be my best attempt to do that.

At the risk of being both repetitive and overbearing, it is, I think, worth pointing out that my experience as a DUI Lawyer spans more than 20 years. I don't handle Divorce cases (never have), Don't do Wills (never have), and don't sue anybody. The bread and butter of what I do is DUI and Driver's License Restoration (which itself arises from multiple DUI's). Accordingly, what I am about to describe below is the product of tremendous experience handling DUI cases. It's not merely a part of what I do; it is the very foundation of what I do, day-in and day-out.

That said, in more recent years I have been able to restrict my DUI practice to the Tri-County area around Detroit. My Website's name, macombduidefense.com, should be a clue to that. I handle DUI cases in Macomb, Oakland and Wayne Counties. Once in a while, I'll take a case in Lapeer or St. Clair County, or even Livingston County, but I do not and will not go beyond these areas. As a result, some, or even much of what I say may not apply to cases pending in other Counties.

After being hired, the first thing any good DUI Lawyer is going to examine is whether there is some way to beat the charge, or have some of the evidence (usually from the Stop, the Field Sobriety Tests, or the Chemical Testing, meaning Breath or Blood) "thrown out."

Even if a challenge to the evidence may not result in an outright dismissal of the charge, it can possibly aid the Lawyer in getting the case knocked down to a non-alcohol traffic charge. To be truthful, this examination is (and should be) undertaken in every case, but finding such "problems" with the evidence is far more the exception, rather than the rule.

This means that the vast majority of DUI Arrests will hold up, and the person will have to deal with a DUI charge as a DUI charge. Still, it doesn't hurt to "dot the I's and cross the T's" and make sure that case is solid.

Continue reading "DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 1" »

In part 1 of this article, we began examining the PSI process and the role of the Alcohol Assessment Test in DUI cases. We'll continue with a more detailed discussion of the Alcohol Assessment Test and the role of the Probation Officer is determining what happens to a person facing a DUI.

People often ask if doing well on an Alcohol Assessment Test is more a matter of common-sense than anything else. To a degree, it is, but there's way more to it than that. From a clinical point of view, a standardized Alcohol Assessment Test looks for and measures 5 traits, or markers, of an alcohol problem. If a person is NOT thoroughly familiar with these 5 "markers," and cannot explain them and their implications in detail, then they are just going though the Assessment blindly. Again, it takes hours to go over this stuff, but the 5 "traits" or "markers" of an alcohol problem are:

1. Family History of Alcoholism,
2. Instances of Social Comment,
3. History of Blackouts,
4. Instances of Social Conflict, and
5. Increasing Effects Threshold.

Preparing the Client for the Assessment Test, and how that Test will measure these things, is absolutely paramount to minimizing the consequences they will endure as a result of a DUI.

This means that if a person is not properly prepared for an Alcohol Assessment Test, and they'll go in to Probation and do, at best, an "okay" job on the Alcohol Assessment Test and in the PSI Interview.

As a result, they'll wind up with an Assessment Report and Recommendation that looks far worse than it would have if they had been properly prepared for the Alcohol Assessment and PSI Interview. A typical example would be something like this:

Continue reading "Getting Better Results in DUI Cases in Macomb, Oakland and Wayne Counties - Part 2" »

In previous articles about Drunk Driving, I have pointed out that the most important "step" in a DUI case is the legally required alcohol assessment. Lately, within the context of my DUI Practice, I have handled an increasingly large number of 2nd Offense cases for people who had some other Lawyer represent them in their 1st case. I have repeatedly been told by them that their prior Lawyer never so much as mentioned preparing them for this step (the Alcohol Assessment). Then, when they came across my blog articles describing how important this step is, and how much of what happens at this point affects the outcome of the case, they immediately recognized, from their prior experience, how true this is, and called me.

In previous articles, I have outlined the steps in a DUI case. This article, which will be separated into 2 parts, will focus on one of those steps: The Pre-Sentence Investigation and the Alcohol Assessment Test that is a required part of that.

More than 20 years ago, as a young Lawyer handling DUI cases, I saw that what actually happened to the Client in a DUI case, meaning the results of a person's Sentencing, was almost identical to what was Recommended as a Sentence by the Probation Department.

In a DUI case, after a person has worked out some kind of Plea arrangement, the Court sets 2 dates. The first of those dates is a return date for the Client, and the Client alone, to come back to the Court for an interview with a Probation Officer, who has the job of preparing a written Recommendation for the Judge to be used at Sentencing. The Law requires that such a Recommendation be based upon the person's score on an Alcohol Assessment Test.

This means that a person will show up to the Court's Probation Department, take a written Assessment Test, fill out an information packet which asks about their background (a short life-history), and then meet with a Probation Officer for an interview. This process is called a "PSI," meaning Pre-Sentence Investigation. The result of this whole process is a written Sentencing Recommendation to the Judge indicating what should be Ordered for each particular person facing a DUI.

The second of those dates is the Sentencing itself, where the Judge decides what will be done to the person facing the DUI. And the reality of the situation is that in each and every Court out there, and in each and every case, the Judge will follow that Sentencing Recommendation, if not to the letter, then darn close to it.

Continue reading "Getting Better Results in DUI Cases in Macomb, Oakland and Wayne Counties - Part 1" »

I have written a number of articles about DUI's in general, and 2nd Offense DUI's in particular. This article will focus on only one, and by far the most important aspect of 2nd Offense DUI cases: Staying out of Jail.

My DUI Practice involves handling loads or 1st Offense cases, plenty of 2nd Offense cases, and a good share of 3rd Offense (Felony) cases. Handling a typical 2nd Offense case is often more challenging than handling either a 1st or a 3rd Offense. The reason for this is quite simple; staying out of Jail in a 1st Offense case is pretty much in the bag in all but the rarest of circumstances, and staying out of Jail in a 3rd Offense case (assuming its not plea-bargained to a 2nd Offense case) is legally impossible, short of going to Trial and being acquitted of the charge. A 2nd Offense case puts a person as close as they can get to Jail, without any legal requirement that they actually be put in.

To be clear, the first inquiry that should be made by a Lawyer handling any DUI case is whether or not there is some way to have the case "knocked out." This means looking closely at the Police Stop, and at the method by which any breath or blood evidence was collected and/or analyzed. Statistically speaking, and all opinions and "sales pitches" aside, those cases in which the evidence can be successfully challenged to the point of getting a DUI case dismissed are far and away the exception, and not the rule. The vast majority of DUI Arrests are not going to be thrown out of Court, dismissed or beaten on some technicality.

This means that, unless a person gets really lucky, and the case is so compromised that the Judge decides to throw it out, it will ultimately be up to the Judge to decide what to do with a 2nd Offender. And you cannot escape the sinking feeling that, whatever kind of Sentence a person received for their 1st Offense, it apparently wasn't enough. This puts a person standing before the Judge right in the crosshairs of a Jail Sentence.

Not surprisingly, most people instinctively know this. When I speak with someone who is hiring me to handle their 2nd Offense DUI, there is one primary concern they have, and reason for hiring me, and that's to stay out of Jail. The good news is that, with the right work, most people facing a 2nd Offense DUI can be kept out of Jail. The key element to this is "the right work."

In another group of articles about 2nd Offense DUI and the issue of a Drinking Problem, I pointed out that a person facing a 2nd DUI needs to understand that the Law presumes, and the Judicial system perceives them as having a problem. A 2nd Offense within 7 years is considered a "habitual offender" violation and results in the REVOCATION, and not merely the Suspension, of the Driver's License for at least 1 year, with no possibility of Appeal. Part of that "habitual offender" status is the additional legal requirement that a person with a 2nd DUI within 7 years be Court Ordered into some kind of Counseling and/or Treatment. And let's be clear; the Law REQUIRES Counseling or Treatment, it does not merely suggest it.

Continue reading "Staying out of Jail in a 2nd Offense DUI Case in Metro-Detroit" »

In part 1 of this article, we began our general overview of 2nd Offense DUI's and some of the considerations involved in this type of case. In part 2, we continued that examination. Here, in part 3, we'll conclude with a discussion of Court costs and other, related fees, and take a look at how the emotional and psychological aspects of a 2nd Offense charge can be viewed either with optimism, or pessimism, and how being ready, willing and able to do some legwork can have such a significant impact on making the outcome of such a case much better.

It should come as no surprise that, beyond legal Fees, this will cost a lot. And here's where I have to be honest about my feeling on the matter: Oh well. We all have money issues. If I had more than enough to need to work, I'd be somewhere warm, managing investment accounts under a palm garden, sipping Sweet Tea and listening to the gentle crash of the ocean waves. But I'm here, and not there, and neither is the person facing a 2nd Offense. We all have to do what we have to do, and if you're facing a 2nd Offense DUI, paying a lot of money is part of that.

Some people take a bit of stress off themselves and just accept this, while others will rant on about how it's a great big conspiracy on the part of the Court and the Government to make money. In the end, it really doesn't matter what it is, because a person has no choice, anyway.

Those costs are significant. If a 1st Offense seemed expensive, wait and see how this goes. Fines and costs can easily be double that of a 1st Offense. The Driver Responsibility Fees WILL be double, racking in at $1000 per year, for 2 years. Probation will likely be longer, and will almost certainly be Reporting, which will also cost a nice chunk of cash, unless the person lives, or moves out-of-state. There will be Counseling and/or Treatment. Guess who pays for that?

Now I'm not suggesting anyone can "buy" their way out of a 2nd Offense DUI, but NOT being able to pay fines and costs, and otherwise coming to Court with empty pockets will only complicate things. Here's where another bit of honesty, as opposed to salesman's diplomacy, is needed on the part of the Lawyer: If YOU were the Judge, and you sat on that Bench and saw DUI after DUI, with lots of them being 2nd Offenses, how interested would you be in dealing with all the excuses why a person cannot pay? Part of that Judge's mentality becomes, at least with time, the whole notion that "If you're going to play, you've got to pay." It's really that "oh well" sentiment all over again.

Now, I do understand that not everyone can satisfy the financial obligations caused by a 2nd Offense quite so easily. But a Lawyer has to do more than just go in and ask the Judge "can my Client have some time to pay?" After all, the Client can do that on their own. Instead, I have a rather simple approach; if you pay me, I'll help you get time to pay them. We might need to sit down and actually sketch out a budget to hand the Judge, but if that's what it takes, then that's what it takes.

This pretty much wraps up the "Legal" considerations involved in a 2nd Offense DUI case. There are also a few very important emotional and psychological aspects to these cases that are just as important.

Continue reading "OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 3" »

In part 1 of this article, we began our general overview of 2nd Offense DUI's. We looked at staying out of Jail, evaluating the evidence, and Legal Fees. In part 2, we'll pick up with an examination of the concept of a legal "Consultation," finding the right Lawyer, License Consequences (meaning mostly License Revocations) and Counseling and Treatment options.

Like every Lawyer out there, I do consultations. Mine, however, are done on the phone. I can spend 15 or 20 minutes with someone on the phone and get a good feel for them, their case, and what issues it presents. Likewise, they can get a feel for me, and my approach. What I like best about a phone consultation is the somewhat anonymous ability for either party to not feel any obligation or pressure beyond that phone conversation. In other words, if I don't like you, or I think you're a kook, or if you don't like me, or think I'm whatever, then we need not go any further. We can say "goodbye" and hang up. I have been told, many times, by Lawyers who do the "in person" consultation that it has a good "closing rate," and that I should change my approach to do it that way. In other words, the idea is that once you get them in the office, you should be able to get them to sign up.

I don't work that way. I could explain that all day, but in the end, that's just not me. Instead, after speaking with someone, if they feel I'm the Lawyer for them, and I think I can help them, then they can either let me transfer them to one of my Staff members to schedule an appointment, or, if I'm not in the Office and am returning the call (which is the usual scenario), then I'll tell them to call my Office and schedule an appointment.

I have written several articles about finding the right Lawyer, and I urge the reader to review them. One thing I'm sure about is that, as much as I might spark some curiosity about me with all these articles, I will also convince some people that I'm not the Lawyer for them, which is also a good thing. I have no illusions that I'm the Lawyer for everyone. I speak frankly and often use the more pedestrian voice of my upbringing. That's me. In fact, the whole point of this is that finding the right Lawyer for you takes some time, and is a process. Even if the first Lawyer with whom you speak turns out to be the one for you, that should become clear only after you've weeded through a number of others with whom you've spoke, or whose articles you've read. More than anything else, you have to like the person you're going to hire.

Finding the right Lawyer, then, really involves a number of considerations.

Lets' assume the reader has already found the right Lawyer. The reader is well aware that the maximum possible Jail penalty for their 2nd Offense DUI is 1 year n the County Jail, and that, unless their case is being heard in the 48th District Court, with some good legal work, they can usually avoid dong any of that Jail time.

Continue reading "OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 2" »

In previous articles, I have examined many different aspects of DUI cases, including some specific issues relative to 2nd Offense cases. In looking over those articles, however, I noticed that we have yet to conduct a more general overview of the whole 2nd Offense Drunk Driving subject. That's what we'll be doing in this article. We'll look at consequences, defenses, Fees, Lawyers, Counseling and Treatment, and the whole gamut of things a person will have to deal with if they are charged with a DUI.

This article will be broken into 3 parts, with part 2 being the longest because I prefer to break off at a logical stopping point.

My Practice not only involves a lot of 2nd Offense DUI cases, but also, because of my specialty as a License Restoration Lawyer, deals with the after-effects and consequences of those DUI's. As often as not, a person who hires me to help with their Driver's License Restoration is someone whom I did not represent in their 2nd DUI case.

Likewise, I am often called upon to represent a former Client in their 2nd DUI. Usually, that first conversation involves some mention, on their part, of the words "embarrassed" or "stupid." The next thing that comes up is an anxious, yet understandable concern about "what's going to happen to me?" Underlying all of that, of course, is the ultimate question: Am I going to Jail?

And the good news is that, with some focused, good work, the answer to that can question can almost always be "no." Things are different in the 48th District Court in Bloomfield Hills, where a 2nd Offense DUI, unless it is dismissed on some technicality or "beaten" at Trial, will ALWAYS result in a Jail Sentence. Not to make light of the situation, but if you're facing a 2nd offense in that Court, unless you have a plan to beat the case somehow, you'd better bring a toothbrush.

This does not mean, however, that a person facing a 2nd Offense charge is automatically not going to go to Jail. Instead, as I noted, it means that with the proper work from BOTH the Client and their Lawyer, Jail can be avoided. In other words, a 2nd Offense DUI is kind of like a heart attack; prompt and proper attention to the situation can make all the difference in the world. Doing nothing, or just waiting to see what happens will always mean things turn out worse.

Let's talk specifics: A 2nd Offense DUI is a Misdemeanor Criminal Offense. By Law, it carries a maximum Jail penalty of up to 1 year in the County Jail.

Continue reading "OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 1" »