Michigan Criminal Defense Lawyer Blog
In our roles as Michigan DUI lawyers, we handle a lot of 3rd offense OWI cases. It’s a given that a felony DUI charge is serious, but it doesn’t have to be anything like the end of a person’s world, especially if it’s handled skillfully. As I often point out, success in a DUI case is best measured by what does NOT happen to you, and that’s particularly true when facing a 3rd offense charge. In fact, when properly handled, a 3rd offense DUI can be worked out a lot better than the reader might think, and many, if not most, of the scary sounding potential consequences can be avoided.
Obviously, the first goal in any DUI case is to find some way to get out of it, but drunk driving charges don’t dismiss themselves. Instead, a lawyer has to work every angle to discover something that can be leveraged to either get the charges knocked out of court, or used to in order to force a better outcome. That’s not a bunch of meaningless talk, either, at least when real effort is actually put into a case. As one of my favorite lyrics observes, “Good work is the key to good fortune; winners take that praise – losers seldom take that blame.”
That sentiment is completely applicable when it comes to handling DUI cases, and even more so in a 3rd offense situation. Experience teaches that when a Michigan DUI lawyer examines the evidence in a case and looks for something to challenge, there are certain places where he or she is more likely to find it than others: The traffic stop has always been one of the best areas for that. The day before I began this article, the Michigan Court of Appeals published an opinion holding a DUI traffic stop unlawful, and that case really shows the value of a lawyer’s good work, and what “proper handling” can do.
It is said that “imitation is the sincerest form of flattery,” so I’m kind of flattered, in a sense, that other lawyers use my blog posts for their ideas. However, I do put a lot of effort into the analysis that goes into some of these installments, and I wonder if I should be mad at the fact that most of the copy-cat versions that I ran across edited much of that out, and thereby really amount to little more than “cheap knock-off” versions, or whether I’d be even madder if someone did try to pass off my analysis and reasoning as his or her own.
Key here is that the new amendment will require that a person formally file for the removal of a DUI conviction, making this different from other sections of the expungement law, which provide for the automatic set-aside of certain offenses after a specified time period. For all the publicity that has surrounded the newly-crafted legal provision allowing a DUI conviction to be set aside, the fact that such relief is NOT automatic has been almost completely overlooked. This is a huge omission, because there’s more to getting rid of a prior DUI conviction than just filing an application; a person basically has to earn it.
The picture you see here is of our actual client, who sent it along with his “thank you” email, and told us to use it on our site or blog (I obscured the company logo on the side of his truck). With the exception of one sentence I took out about him having posting posted a positive review of our firm, what follows are the exact words from that email: “I am so happy and grateful for your law firm! You guys did an amazing job on my case and I am already on the road and driving! Thank you for everything, this is just the beginning of my journey in my new life and I appreciate your efforts!”
The main rule governing driver’s license restorations begins by stating that “The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:” (emphasis added). This can (and, indeed, does) get tricky, because what “clear and convincing evidence” actually means in the context of a driver’s license appeal case is a lot like what it sounds like. A lot – but not completely so – and that’s a very important part of what we’ll be examining in this piece.
The whole experience of a 1st offense DUI is legally structured to be expensive and otherwise unpleasant in such a way as to strongly deter someone from a repeat performance. In addition, under Michigan law, anyone convicted of a 2nd of 3rd offense DUI is automatically categorized as a “habitual alcohol offender,” is presumed to have a drinking problem, and will have his or her driver’s license revoked as a result. This means that anyone showing up in court for a 2nd or 3rd offense DUI can’t explain away their situation as just “bad luck.”
In Michigan, what we commonly call “DUI” is legally known as “OWI,” short for “Operating While Intoxicated.” It is a criminal traffic offense, meaning that it is both a criminal offense, and a traffic offense. Consequently, a DUI conviction will go onto both a person’s criminal record and his or her driving record. Despite a number of recent changes to he state’s expungement law, a conviction for a 2nd or 3rd offense DUI charge will go on (and stay on) both a person’s criminal and driving records, and neither of them can ever be set aside. This stands in stark contrast to the recently legislated ability to remove a 1st offense OWI conviction, under certain conditions, from a person’s criminal record.
In the context of license restoration appeals, some “yabut” people just need help to understand that the rules regarding driver’s license appeals don’t have any flexibility to provide an exception based upon their individual circumstances. Most of them will ultimately accept what they’re told, even if somewhat begrudgingly. There is a rougher side, to this, however, and it’s something that, as Michigan driver’s license restoration lawyers, we hear from some people, who, even after being told how the law works, impatiently respond by saying, “That’s bull$hit!”
This may sound logical, but in a DUI case, it’s important to remember that everything done at the court phase has to take into account how and why the client got there in the first place, and what can be done to avoid and/or minimize all the consequences that will follow. Because the lawyer wasn’t there at the time of the arrest, that only makes it all the more important for him or her to thoroughly investigate all the circumstances surrounding it. When a DUI charge lands on a lawyer’s desk, he or she needs to start digging and question everything about it.
As anyone will quickly discover, there are numerous steps involved in the driver’s license restoration process: A person can’t win back his or her license without a hearing, and a hearing can’t be scheduled until all of the required documents have been filed, and they can’t be filed until a person has undergone a substance use evaluation and had his or her letters of support written, and none of that can take place until he or she first decides to undertake a license appeal in the first place. While each of those stages are connected, there is also a larger element at work, and understanding how it affects the big picture will help everything make more sense.