Michigan Criminal Defense Lawyer Blog

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" »

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" »