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April 18, 2016

Michigan DUI and your Driver's License

In my day-to-day role as a Michigan DUI lawyer, one of the most common questions I am asked is something like, "What's going to happen to my driver's license?" This is often followed by an explanation of how the person needs a license to drive to work, or a question about what can be done so he or she can have a license to at least get to work. In this article, I want to answer those questions; those answers are, in fact, clear and simple, but sometimes the consequences are hard to accept. The whole point of this article is to make crystal clear what will happen to your driver's license in a drunk driving case. The rules governing what happens are fixed and inflexible, and as frustrating as that can be, it also simplifies things quite a bit.

600x400-Kevins2.jpgBefore I explain how a Michigan OWI charge affects a driver's license, I need to be a bit undiplomatic and stop a certain line of questions right in its tracks. People will often ask things like, "How do they expect me to keep my job," or "How am I supposed to get my kids to school." To be clear, if not cold, under the law, that's your problem. The rules are the rules, and if you can't drive to work and that means you'll lose your job, you need to understand that there is no "they," and therefore no person, mechanism or system that cares about, understands or who can otherwise do anything about your situation. There is nobody who "expects" you to do anything. Instead, there is a set of rules that applies when you get a DUI, and it applies no matter who you are, how much money you have (or don't) and whatever your personal situation. If you first accept this principle that these rules apply without exception, then it becomes much easier to understand what will happen to your license.

A common misconception, when someone facing a drinking and driving charge asks about his or her license, is the idea that the Judge, or the enigmatic and undefined "they," so often the target of the never ending "what about" questions, has anything to do with what happens. Let me make this very clear: What happens to your license is a matter of written law, and no one, including the Governor of the State of Michigan or the President of the United States, can alter, change, lengthen, shorten or otherwise modify any part of it. There is 100% absolutely NO possibility of going to court to "get" any kind of relief or change any part of what the rules require to happen, and there isn't even a procedure to do so anyway. In other words, trying to go to court to change what happens to your license is like trying to file a case in court to change the weather; it's not an option. With that established, let's move on to what does, in fact, happen to your license...

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February 5, 2016

Michigan DUI Cases and Relapse

This will be an article about role of relapse in a Michigan DUI case. In the previous article, we focused on how relapse can be used as an asset in a driver's license restoration case. I noted that in my role as a Detroit area (meaning Macomb, Oakland and Wayne County) DUI lawyer, alcohol, drinking (as in normal drinking), troublesome drinking and, in the case of my driver's license restoration practice, recovery from drinking problems, are the focus of just about everything I do, every single day. Given that OWI (Operating While Intoxicated) cases are always about drinking, and given the court system's natural bias toward finding and over-diagnosing drinking problem in those cases, it became obvious, that to really help my clients, I needed to advance my understanding of the whole clinical world of addiction and recovery. To do that, I went back to the university classroom and completed the coursework in a post-graduate program of addiction studies. This way, when I'm next to my client, I stand as the foremost authority in the courtroom on alcohol-related things like diagnosis, relapse and recovery. In a DUI case, a relapse usually brings both good news and bad news. The bad news, of course, is the DUI case itself.

craving_alcohol.jpgThe good news is that if we can properly communicate the entirety of the situation, we can assure the court that you don't pose a worrisome risk of re-offending, and therefore don't need to be pounded silly with all kinds of punishment. Granted, this sounds easier than it is (otherwise every lawyer would just say what I said and everything would be just fine), and that's why I thought it worthwhile to invest years of my life and tens of thousands of dollars of my money into a formal program of addiction studies. Much of this is relevant to 2nd offense and 3rd offense DUI charges, and is not as broadly applicable to 1st offense drunk driving cases in general, but then again, broad generalities won't help anyone who has relapsed only to wind up facing another drinking and driving charge.

As I pointed out in the prior, license reinstatement article, the term "relapse" is often used rather imprecisely. If a person has quit drinking and then engages in a single episode of drinking, that's called a "lapse." To continue drinking after that first episode (an episode can be anything from a single sip to a single drink to a whole, but single day of drinking) is to "re-lapse." Thus, a relapse is a return to more than one episode of drinking. I've had DUI cases that have arisen the very first time my client picked up again, and I've had some that marked the tail end of a long, painful relapse, as well as just about everything in-between. If you are facing a DUI after having quit drinking, it may look bad at first glance, but we can - we must - and, if I'm your lawyer - we will use your prior period of abstinence to help your case. It goes without saying, though, that we'll have to show how the lapse or relapse not only got you to stop drinking - again - but also how and why this time, it's for good. So how do we do that?

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April 20, 2015

Operating While Intoxicated (OWI) 2nd Offense - Staying out of Jail in Metro Detroit

As a Michigan DUI lawyer with a practice that concentrates exclusively in the Metro-Detroit area, I handle a lot of 2nd offense OWI (operating while intoxicated) cases. If you're facing an OWI 2nd charge, the first concern you have is staying out of jail. Of course, this should also be the first concern of your lawyer, as well. Yet all the concern in the world won't do you any good unless it translates into intelligently calculated and properly executed effort. It may seem trite, but hard work, in and of itself, can be a tremendous waste of time. You can go outside, gather up a pile of sticks and spend your time striking rocks together to create a spark that ultimately makes a flame, or, you can be smart about it and use a lighter or a match. In the context of a 2nd offense drinking and driving charge, it becomes important to understand that you must always take into account what's at hand, and then use it, in the best way possible, to drive a better outcome.

Whiskey 1.2.jpgBefore going any further, let me clarify that the very first order of business in any DUI case is for me (and every lawyer) to gather the facts and investigate. This means obtaining the police report(s), breath and/or blood test results and any police car, dash-cam video. Every detail of the stop, the arrest, and the evidence must be examined carefully with the intention to find a way to beat the case, or at least find any problems with the evidence. It is only after that has been done that we turn to using what is "at hand," and by that, I mean the facts of the case. I am fond of saying that combining a thorough knowledge of the facts and the law of a case to the careful application and management of perception, science and time produces the best outcome in a DUI case. Let's make sense of this by looking at an example where we can focus on the management perception.

Imagine that you were talking to one co-worker about another co-worker named Stephanie who had recently been charged with a DUI, and you were told that she got so drunk she crashed into a parked car in some distant city, passed out behind the wheel and then was arrested. Imagine further that you were also told, in dramatic form that "Her breath test results came back way over twice the legal limit, like a .19 or something." Your reaction would probably be negative; you might respond by saying something like, "No kidding, huh? That sucks. She must have a problem." Now, what if the same story was told like this, instead? "Poor Stephanie; she is such a lightweight, and she wound up getting roped into going out with this group of people who are all big drinkers. They had her drink way too much, and the poor thing didn't want to bother anyone to come get her. She was so out of it that she tried to drive home herself. She wound up getting lost, hit a parked car on some street on the other side of town, and then she just passed out. Someone called the cops, and they found her and took her to jail." While neither story is good, your perception of Stephanie in the second description is probably not as negative as it was in the first. Managing perception is very important in a DUI case, and is only one small part of the equation...

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March 30, 2015

DUI Dismissed - 2nd Offense Thrown out of Court

Just about everyone has heard the old saying, "If you can't beat 'em, join 'em." As a DUI lawyer, it is imperative that my approach in every case is to find a way to "beat 'em." For all we could say about it, the bottom line is that you will not find a way out of a DUI case in Michigan without looking for it. DUI charges do not dismiss themselves. Yet I have also discovered that, while listing my successes feels like bragging to me, the reading public apparently likes this sort of stuff, and uses it as at least one measure by which a lawyer is judged. This article will be about a case I recently handled; in this instance, I got the whole case dismissed. While every situation is different, this case is a very clear demonstration of the important principle that the best outcome in any case is achieved by combining a thorough knowledge of the facts and the law to the skillful management of time, perception and science.

Judgey.jpgThe case at issue was thrown out of court the week before this article was written. My client was charged with operating while intoxicated (OWI) 2nd offense in a local, Metro-Detroit area court. As I've noted before, I try to avoid identifying any particular court because I don't think there is a single Judge out there who wants to ever be perceived or portrayed as being "easy" on drunk drivers. Fair and lawful as the dismissal at issue was, Judges sell themselves at election by promising to protect their constituencies and by being "tough" on criminals. You won't see a Judge running for reelection talking about all the case DUI cases he or she has thrown out of court. In fact, you can take this to the bank: Judges don't dismiss DUI cases because they want to, but rather only because they have to, and the reason they have to is because a lawyer like me has worked hard to find the way out. That's what happened in the case at issue here.

As much as I believe it advisable to refrain from trumpeting identifying court information in the cases I describe, I also believe in not revealing too much detail about how I achieve certain results. Think about it; if the "secret sauce" in a winning case is the result of the careful management of time, perception and science, why would I want the Judge or the prosecutor to know all that. They might think that what I call that the careful "management" of time or perception is, at least in some cases, really a purposeful manipulation of those things. The cold reality is that you can get a court-appointed lawyer who is loved by the Judge and the prosecutor because he or she quickly pleads out every assigned case and moves the docket along at breakneck speed. This is great for the Judge and prosecutor, but if you're the client, it's much better if your lawyer makes things easier for you rather than them. The point I'm making is that being effective isn't about being brash and obnoxious (some lawyers prefer to use the terms "tough" and "aggressive") while stomping into court all full of antagonism and bluster. In a case where getting the most time is important, thundering into court like an angry bull may just speed up a showdown, and the benefit of stretching things out will be lost.

In the case that was dismissed last week, a blood test was taken, and the prosecution was counting on the results for its evidence. At first glance, the case looked pretty much open and shut. Yet a careful review of the evidence led to me finding legal grounds to challenge the blood test results, and, at the end of the day, the Judge wound up dismissing the whole case...

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August 29, 2014

Michigan DUI Lawyer - Examples of Success

This article will be about the great results I produced in the 4 DUI cases I handled this past week in the Detroit area. On my website and within the numerous DUI articles on this blog, I examine and explain almost every aspect of Michigan DUI cases in careful detail. Here, we're going to look at what all that analysis, knowledge and strategy actually produces. While I am certainly at the head of the class in terms of exploring how DUI cases work, I haven't been so good at taking it to the next level and showing off the results. To be perfectly honest about it, while I am supremely confident in my own abilities and certainly proud of what I regularly accomplish, I am somewhat modest and really don't like to do anything that seems like outright bragging.

Good Work 1.2.jpgRecently, both Ann, my senior assistant, and my web team have told me to do this. It has always seemed to me that the more cerebral reader could figure out from the kinds of articles I write that I produce exceptional results in Detroit-area DUI cases. I'm not nearly as shy about criticizing bargain, cut-rate legal services offered by some lawyers as I am to point to my own achievements. To me, it seems rather obvious that the top tier of DUI lawyers don't tout their finest attribute as being the cheapest, or otherwise use the same worn-out labels for themselves like "aggressive," "experienced" or "tough." Yet I have to admit that I have been behind the curve in posting my real-world results because I hate coming off as boastful. Apparently, I need to do just that, so I'll oblige. Since I handle so many DUI cases, we'll look back at the 4 DUI cases I handled in court this past week.

I don't know how to put this without sounding self-important, so I'll just be direct: I don't want to be too specific about the court or parties involved in the cases I'm about to review, because I don't want to draw too much attention to the kinds of deals I can get, or the outcomes I produce, only to have there be some kind of "law and order" backlash. If I'm going to venture into this territory, then I might as well be upfront about the fact that I expect to produce the very best outcome humanly possible in every case I take. I expect to produce a result better than almost everyone else.

When it comes to protecting my clients from the implications of an alcohol problem that is, or is not present, I can safely say that I am without equal. I am actively and currently involved in the formal study of addiction and alcohol issues at the post-graduate (meaning one already possesses a graduate degree) level. There is no lawyer or Judge who knows more about the onset, development, diagnosis, treatment and recovery (including relapse) from an alcohol problem than I do. This makes me the expert in the courtroom about what does, and, more important in many cases, what does not constitute a drinking problem. Now, on to those cases...

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October 7, 2013

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

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.

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June 14, 2013

Michigan DUI Second Offense - Staying out of jail

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...

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December 3, 2012

DUI 2nd and 3rd Offense and the Real Focus - Alcohol

In a recent article, I pointed out that the ultimate focus in any DUI case that doesn't get dismissed for some defect in or lack of evidence is about the Driver's relationship to alcohol. To anyone facing a 2nd or 3rd Offense DUI, this is obvious on several levels. This article will continue that discussion as it relates to anyone who has already had a DUI, and should prove equally informative to anyone who has never been through anything like this.

There is a good chance that if you have been Arrested for a 2nd or 3rd DUI, you are required to submit to some kind of alcohol (and often) drug testing as a condition of your Bond, or release. So much for the presumption of innocence, then...

Alcohol Rope 1.2.pngIn the real world, especially as it relates to DUI cases, the Court system struggles to even pay lip service to the presumption of innocence. Remember, the purpose of Bond, in the first place, is to make sure you show up in Court and don't just run away. Bond, in that sense, is like a kind of "deposit." How does any kind of alcohol testing help insure (or not) that a person will show up for Court? The fact is, this kind of testing has NOTHING to do with insuring a person shows up to Court, and has EVERYTHING to do with the undisputed, if unspoken, belief that a person charged with a DUI is guilty.

There is a reason for this belief, however. It's not that Judges just pick this stuff out of the sky. In the course of their various careers, most Judges will handle thousands, if not tens of thousands, of DUI cases. By contrast, those same Judges will ever only wind up dismissing a mere handful of DUI cases, if they ever dismiss any, in all those years on the Bench. When a case is "knocked out," it's almost always because of some technical defect or shortcoming in the evidence. Very often, the problem lies with how the evidence was collected or tested, meaning there is some question as to the scientific, and therefore legal reliability of the evidence. Very seldom does anyone go to Trial in a DUI case and prove they were Sober.

The bottom line, at least to a Judge who sees thousands upon thousands of DUI cases, is that practically no one comes into Court charged with a DUI who hadn't been drinking, and had a few too many. Once in a while I'll get a DUI case where the Police failed to obtain breath or blood evidence, but that's a lot different than arguing that someone with a .12 (one and a half times the legal limit) or even higher breath test wasn't really over the limit.

If we're going to be really blunt about it, then, that means that when Dan the Driver goes to Court after having been Arrested for DUI, and having blown a .12 (or higher), the Judge isn't really thinking "Well, Dan is presumed innocent, so his breath test of .12 means nothing at this point. I wonder if the prosecutor will be able to prove Dan really was driving while intoxicated?" Instead, the Judge might figure that maybe, if Dan gets a really good Lawyer, and catches a lucky break, there might be some technical hiccup with the evidence and with a slick legal maneuver, Dan might be able to wiggle out of the charge.

In other words, Judges don't really question that people charged with DUI have been drinking. Or driving. If you're reading this, and you are required to test, there isn't much more to say. If you have been through a DUI before, then you know what comes next...

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August 27, 2012

Michigan 2nd Offense DUI and Driver's License Restoration

As a full time Michigan Driver's License Restoration and DUI Lawyer, I deal with the implications of a Second Offense Drunk Driving charge daily, and in different contexts, as well. As a Michigan DUI Lawyer, I am involved, nearly from the beginning of a 2nd Offense case, to guide my Client through the Court process. In that role, my job is to take a case and put it under the microscope and look for those flaws in the evidence that can be used to get the charge dismissed, or at least reduced. As a Driver's License Restoration Lawyer, I help explain how that 2nd DUI was often the catalyst for my Client to recognize that they had a drinking problem.

Attitude is important. A DUI Lawyer must go in to a case expecting to find some problem with the evidence, or how it was gathered, and not just wait for the obvious to jump out of the file. I often point out that DUI cases don't dismiss themselves. If you want to find a defect in the case, you have to look for it.

2nd 2.2.jpgThat said, by the time anyone is out of Jail and looking for a Lawyer, the facts of the case have been set in stone. What happened that resulted in the DUI Arrest happened; now, we're looking backwards in time to see if the legality of what happened holds up under the law.

The same thing holds true a few years later, after a person becomes eligible and ready to file a Michigan Driver's License Restoration Appeal. A person who has lost their License for multiple DUI's has, in the meantime, either gotten Sober, or not. When someone calls my Office about a License Appeal, and I ask about their Sobriety, they either have it, or they don't. These facts are also set in stone.

My differing roles as a Michigan DUI and Driver's License Restoration Lawyer requires me to have certain differences of personality, as well. As a DUI Lawyer, I am the Lawyer, first and foremost. In a certain sense, I am a hired gun. My first mission, once hired in a DUI case, is to find some way to beat the case, or at least do serous damage control. When I can exploit a flaw in the evidence, or the way it was gathered, and manage to get the case "knocked out," I do just that. I am hired, really, to make as much of a DUI go away as I can.

Yet there is a whole other side to this, and to me, as well. If a person picks up a 2nd DUI within 7 years, Michigan Law concludes that they are what's called a "habitual offender," and presumes that they have an alcohol problem. When that same person comes forward a year to two (or three of four, or even more) years later, to have their License Reinstated, the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) will require that the person prove, by "clear and convincing evidence," that their alcohol problem is "under control, and likely to remain under control." This means that I also have to work under the legal presumption that a person with a 2nd (or subsequent) DUI has an alcohol problem.

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June 22, 2012

DUI 2nd Offense in Michigan - Detroit Area Courts - Part 2

In Part 1 of this article, we began our examination of a 2nd Offense DUI in the District Courts of Macomb, Oakland and Wayne Counties. We looked at the general ideal of "avoiding Jail," and began looking at the real sleeping giant in any 2nd Offense case: The issue of a potential drinking problem. We ended Part 1 by transitioning from just staying out of Jail to avoiding as many of the other potentially burdensome consequences of a 2nd Offense DUI case as possible. We talked about avoiding all the conditions of "Probation from Hell."

But to do that, certain things need to be understood.

Booze Cuffs 1.2.jpgChief amongst them is that in a 2nd Offense DUI, the Law REQUIRES that a person be Ordered into some kind of Counseling. A 2nd DUI within 7 years makes a person a "Habitual Offender" under Michigan Law. This means there is a presumption that they have an alcohol problem. It seems that the lawmakers paid some attention to statistics, as well.

And all of that means that unless the case gets "knocked out" somehow, the Judge will absolutely be Ordering the person into some kind of Counseling.

About the worst legal strategy a person can have is to simply show up on the day of Sentencing and wait to see what happens. On par with such an utter lack of a plan is to show up at Sentencing, and then, in the hopes of staying out of Jail, tell the Judge something meaningless, like "I'm willing to do whatever it takes" or "I am willing to go to Counseling," or, worse yet, to admit, as if in a moment of sudden but ridiculously delayed realization, that "I know I have a problem." This is just being reactive, albeit in a rather dim-witted and slow kind of way.

Instead, the Client should be guided into Counseling before they ever wind up in front of the Judge. Not only will they be able to pick out a Counselor who is more affordable and convenient for them if they take the initiative and start early (meaning they won't just get stuck into some "one size fits all" Counseling program the Court Orders, regardless of how convenient or not it is for the person), they will also score big time "brownie points" for having recognized the need for help early on, and having done something about it. I can and do use such proactive actions to my Client's decided advantage throughout the case.

This works even for those who firmly believe that they don't have any issues or problems with alcohol, because the Law requires everyone with a 2nd Offense to get into Counseling no matter what. A person's self-assessment is NOT part of this equation. This is part of the way a DUI Lawyer helps his or her Client make things better. This is what the "Attorney" part of the title "Attorney and Counselor at Law" means.

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June 18, 2012

DUI 2nd Offense in Michigan - Detroit Area Courts - Part 1

A Second Offense DUI is serious business. Anyone facing this charge does not need to be scared out of their wits by laundry listing all the bad things that can happen. This article will take a realistic look at what will happen to a person facing a 2nd Drunk Driving charge, as well as how this charge is viewed by the Courts. As bad as it can be, a 2nd Offense Drunk Driving is NOT the end of the world. In order to properly cover this topic in sufficient detail, this article will be broken into two parts

In that regard, geography plays a prominent role in how things will turn out. Where a DUI takes place has as much, if not more to do with what will happen to a person as anything else. Beyond anything else, a 2nd Offense DUI really raises red flags about a person's alcohol use, and invariably signals a potential, if not likely drinking problem.

DUI Drinkeys copy 1.2.jpgThe first concern anyone has when facing a Second Offense Drunken Driving charge is whether or not they're going to Jail. This has to be a starting point for any worthwhile discussion of Second Offense cases. Imagine if this article began by discussing Fines and Costs... Who care about Fines and Costs over Jail? Avoiding Jail is always the first order of business. Once the way has been cleared for that, minimizing all the other consequences that can follow a DUI Second Offense charge becomes the next order of business.

One of the best ways to avoid Jail is to avoid the whole DUI charge. Every single aspect of the case must be put under the microscope, so to speak. Why was the person stopped? Was there a cell phone tip? Is there Police car video? How were the Field Sobriety Tests conducted? Were the performed on a level surface, in decent weather, or on angled or uneven pavement, and/or in bad weather? What about the Breath Test? Was a Breathalyzer test administered? How long after the Arrest? Was the test conducted properly? Was the Breathalyzer machine properly calibrated? Was a blood test taken, instead? What were the results, and was there anything that could affect the accuracy or reliability of those results?

There are countless things, large and small, that can affect how strong or weak the evidence in any DUI charge may be. Often, cases that seem clear-cut might be compromised with an almost hidden defect in the evidence that cripples the Prosecution's evidence. Other cases might seem, at least to the person facing the charge, fraught with problems, yet turn out to be far stronger than they might at first appear. The key is to look, and look carefully. If you don't look, you won't find...

Continue reading "DUI 2nd Offense in Michigan - Detroit Area Courts - Part 1" »

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January 9, 2012

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

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.

Copper car2.jpgIt 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" »

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July 8, 2011

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

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.

scotch2.jpgIn 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? " »

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February 25, 2011

Staying out of Jail in a 2nd Offense DUI Case in Metro-Detroit

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.

Jail color2.jpgTo 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" »

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October 25, 2010

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 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.

tropical_scene end.jpgSome 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" »

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October 22, 2010

OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 2

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.

DrunkDrivingBeer.jpgI 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" »

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October 18, 2010

OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 1

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.

arrested cuffs.jpgMy 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" »

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October 1, 2010

Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 2

In part 1 of this article, we began examining how those facing a 2nd Offense DUI either outright recognize they have an alcohol problem, are beginning to sense something is amiss with their drinking, or are just plain in denial regarding their use of alcohol and the problems it creates.

What's all this got to do with a 2nd Offense DUI? More than you might imagine.

drinking_problem3.jpgEarlier, I noted that except for those very few 2nd Offenders who really do not have an alcohol problem, all the rest fall into 1 of 3 categories: Those who get it, those who are starting to get it, and those who simply don't get it. We began by examining those who seemed to have the light switch flipped, and who suddenly seemed to "get it." Next, we talked about those who seemed to be starting to get it. Whatever their level of discomfort about their drinking, these individuals are struggling with the consequences created by their drinking behavior. Whether they make accommodations, or just plain cover their tracks, there is at least a restless sense that something's not right.

It's those who simply don't get it that help put things in perspective. In the local Detroit area, there isn't a Judge on the Bench who isn't keenly aware of the fact that, statistically speaking, the overwhelming majority of DUI 2nd Offenders have a drinking problem. Some Judges will go so far as to outright tell anyone with a 2nd Offense that it is a fact that they have a problem, citing the statistical improbability that they DON'T have a problem as about the same as alien abductions. They say, in short, that "if you're in front of me for a 2nd Offense, you've got a problem. If you think not, then you're about the only one who believes that."

Those who don't get it, and who insist that they're just unlucky, have the almost impossible task of convincing the Judge that they really don't have a problem. It's not a strategy I would use, at least if I wanted to make things better, and not worse.

In essence, this means that getting popped for a 2nd DUI puts a person in the position of being presumed to have a drinking problem. To put it another way, at least as far as standing in front of a Judge is concerned (and nothing else matters nearly as much in a DUI case), it's a foregone conclusion that picking up a 2nd Offense DUI means you have a drinking problem. To argue otherwise is not only an exercise in futility, but quite likely to make things worse.

So who do you think is likely to have it easier? The person who comes to Court, already in the appropriate Counseling or Treatment, and who say's "I'm addressing my problem," the person who says "I think I might have a problem here," or, the one who maintains "I don't have any kind of problem, I'm just unlucky, and used poor judgment in driving that day?"

Continue reading "Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 2" »

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September 27, 2010

Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 1

There is nothing good about picking up a 2nd Offense DUI charge anywhere. In fact, depending on where the charge arises, it's fair to say things simply go from bad to worse. This article will focus on those individuals who use that 2nd Offense charge as a life-changing wake up call and start dealing with a drinking problem, and how that can positively affect the outcome of their case. This article will be based upon my 20 years' experience as a DUI Lawyer who has made a nearly lifelong study of Alcoholism and Recovery, and how those concepts are so fundamental to handling DUI cases. It's a long, involved subject, so our discussion of it will be broken into 4 installments.

The exact statistics are debatable, but it is safe to say that the overwhelming majority of people who pick up a 2nd Offense Drunk Driving charge have an alcohol problem. Under Michigan Law, a 2nd Offense DUI within 7 years makes a person a "habitual offender," resulting in additional penalties and mandated alcohol treatment. In other words, the State basically concludes that a person who gets a 2nd OWI within 7 years has an alcohol problem.

Drinking Problem2.jpgExcept for the truly rare person facing a 2nd Offense DUI who DOES NOT have an alcohol problem, there are really 3 kinds of people in this situation:

  1. Those in Denial, or who just don't see a problem (yet),
  2. Those who sense something is wrong, but are struggling to control or fix it, and
  3. Those who finally have the light switch flipped and really get it.
Let's first talk about that 3rd group. Very often, when I meet with someone who really "gets it," they talk to me in terms of "surrender, " being sick and tired of being sick and tired," and "not being able to lie to myself anymore." I'm often told that as they sit in the Jail cell, waiting for whatever is going to happen to happen, they realize that the common denominator to all the crap and trouble in their life is alcohol. Quite often, this "epiphany" is more a confirmation of a lingering feeling they've wrestled with than a surprising "a-ha" moment.

I think that most people fall into the 2nd group, those who can no longer deny that there is some kind problem, but who have not yet clearly defined it. These are the people who have had, to some extent or other, that "lingering feeling" I mentioned in discussing those who finally "get it."

At a minimum, most people sitting in jail waiting to be Bonded out on for a 2nd DUI know they "can't do that again." Exactly what that means will be the subject of an internal debate raging inside them. And this provides a convenient stopping off point to discuss what I see, time and time again, as one of the hallmarks of a drinking problem and one of the landmarks of Recovery.

Continue reading "Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 1" »

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January 6, 2010

DUI 2nd Offense in Michigan - Am I Going to Jail?

This installment will return to the subject of 2nd Offense Drunk Driving, or Operating While Intoxicated (OWI) charges. As a DUI Lawyer, my actual Practice is limited to handling cases in the District and Circuit Courts of Macomb, Oakland and Wayne Counties. I point that out because what I write here is the product of my experience in these Courts. I have no idea how things are handled elsewhere, and the outcome of any case pending beyond the Tri-County area might be very different from what I describe here.

I think it's fair to say that everyone knows that there are essentially 3 kinds of DUI cases: 1st, 2nd, or 3rd Offenses. And everyone pretty much likewise knows that a 1st Offense is generally not that bad, and a 3rd Offense is a Felony, and a nightmare to boot.

jail_cell.jpgWhat about 2nd Offenses?

The first thing to say about a 2nd Offense is that (if the case is not one of those few that are "beatable"), then how bad things will turn out for the Driver depends more than anything else, on where (what City) the case is pending. Certain Courts are just plain tougher on any DUI than others. In fact, a few Courts are WAY tougher on DUI's than all the others. In the interests of good Lawyer diplomacy, I'll say no more on that subject here.

Another very important thing about 2nd Offense cases, completely independent of where they're pending, is that they represent the crossroads between having a serious alcohol problem, or not. Statistically speaking, anyone facing a 2nd Offense DUI has a much-elevated likelihood of having an alcohol-problem compared with the general population. In fact, a 2nd Offense automatically causes a person to be categorized as a "Habitual Offender" under Michigan Law. Amongst the many implications of that categorization is the Mandatory Revocation of the Driver's License for at least 1 full year.

For anyone facing a 2nd Offense, beyond the relative leniency or toughness of the particular Court where their case is pending, the issue becomes whether or not this charge is the symptom of a much deeper alcohol problem, or is rather a case of repeat poor judgment. Try to imagine the Judge's perspective: Every single 3rd Offense Felony Drunk Driver was, before that, a 2nd Offense Drunk Driver who probably said something like "it won't happen again."

Continue reading "DUI 2nd Offense in Michigan - Am I Going to Jail?" »

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December 16, 2009

Michigan DUI 2nd Offense and Driver's Licenses - Can't I just go to Court to get some kind of Restricted License?

As a Practicing Criminal, DUI and Driver's License Restoration Lawyer, I explain something about this area of the law, to at least someone, pretty much everyday. In this Blog, I have tried to address questions that I hear again and again, and this article will focus on one of those. Anyone facing a 2nd DUI within 7 years will eventually learn that there is a Mandatory License Revocation, meaning that their License will be completely taken away for at least 1 year. Concerned about their ability to work, or go to school, or go to the Doctor's, they ask:

"Can't I just go to Court to get some kind of Restricted License?"

MSP2.jpgAcross the board, the answer is "No."

Prior to 1998, the Court hearing a DUI Case had to impose the Licensing Sanctions on the Driver. Different cases, and different Courts produced often very different results in similar circumstances.

In 1998, Michigan overhauled its Drunk Driving Laws. That overhaul came to be known as the "Habitual Offender" legislation. Among the sweeping changes to the DUI laws in Michigan was the transfer of authority over all DUI Licensing Sanctions away from the Courts, and directly to the Secretary of State. After the laws went into effect, it was no longer possible for a Judge hearing a DUI to make ANY decisions whatsoever about the Driver's License.

Moreover, the new law provided fixed, Mandatory Penalties for every kind of DUI (and Operating Under the Influence of Drugs) case. A 2nd Offense DUI within 7 years of the 1st results in a Mandatory 1 year License Revocation. A 3rd Offense within any 10 year period carries a Mandatory Revocation for at least 5 years. Interestingly, most people facing a 3rd DUI within 10 years are already painfully aware that their License will be yanked for a long time. They're more concerned about "when" rather than "if."

Let's look at an example: Prior to the Habitual Offender laws, if a person got a 2nd DUI within 7 years, but had the charge plea-bargained down to a 1st offense, the Judge could issue a Restricted License after 60 days of full suspension. After the Habitual Offender laws took effect, however, the Courts no longer had any power over a Driver's License. Beyond stripping the Courts of authority over a DUI Driver's License and rather than take into account what Plea Deals a person had made, the transfer of that power to the Secretary of State simply required it to count the total number of Alcohol-Related offenses a person had accumulated over a period of 7 or 10 years.

Continue reading "Michigan DUI 2nd Offense and Driver's Licenses - Can't I just go to Court to get some kind of Restricted License?" »

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