Michigan Criminal Defense Lawyer Blog
As Michigan DUI lawyers, one of the most common questions we are asked is “what’s going to happen to my license?” We’re going to keep this article simple and confine our examination only to 1st offense cases. The whole subject of OWI license sanctions for the various offenses can get rather deep. Since the majority of drunk driving charges are for 1st offenses, anyway, this overview will apply to the largest potential audience.
We’ll start by clarifying one important point – “1st offense” means that a person has not been convicted of any other prior alcohol-related traffic offense within 7 years. DUI driver’s license penalties are imposed by the Michigan Secretary of State (SOS), and under its rules, a conviction can ONLY count as a 1st offense if a person has not had any other alcohol-related driving convictions within 7 years from the date of arrest for the current charge.
In the real world, almost every first offender arrested for drinking and driving will be charged with one of two DUI offenses: Operating While Intoxicated (OWI), or OWI with a BAC of .17 or more (often called “High BAC”). Most of the time, a 1st offense DUI is simply charged as “OWI.” Nowadays, the more serious “High BAC” offense is charged about 1/3 of the time. It’s critical to understand that what happens to your license is a result of the charge to which you wind up pleading guilty, meaning your conviction charge, and NOT the charge that’s first made against you. In fact, most of the time, we can negotiate the original charge down to something less serious.
A DUI case is, at least in theory, gender-neutral. Most cases begin with a traffic stop, and usually, the reason for the stop has to do with how the person was driving. It’s not like the police usually know (or care) if the driver is male or female; that’s discovered later. Another thing that’s almost always a non-factor is how the different sexes metabolize alcohol. Sure, men tend to have more bodyweight than women and therefore will be able to drink “more,” but the law in Michigan clearly provides that a person shall not drive with a bodily alcohol content (BAC) over .08. It doesn’t matter how many more or less drinks it takes someone to get beyond that level, only that he or she is, in fact, above it.
License appeals are hard, and they’re designed to be that way, but not just for punishment’s sake; the Michigan Secretary of State (SOS) wants to make sure that nobody can get back behind the wheel (at least legally) as long as he or she presents any risk to the public. The SOS has drawn the line in the sand, and will only reinstate a license for someone who can prove he or she has quit drinking for good and is a safe bet to never drink again. To the state, the very idea that someone might ever drink again makes him or her too much of a risk to drink and drive again, and therefore NOT a candidate for a license reinstatement. Of course, the people who have the lowest risk to drink and drive again are those who don’t drink at all, and they’re the ones who will get a second chance.
Let me be blunt and honest here: the license restoration process is tough, by design, to the point of actually being a real pain in the a$$. The state makes it hard. That’s just the way it is, like having to fork over a chunk of the money you earn to pay income tax. Even though the process could always be made “better,” most people who are genuinely sober realize that no matter what, the reason they’re in this boat is because of their own behavior. They understand that, as much as this whole thing sucks, they can’t blame anyone else for their situation. You don’t have to like any of this, but a mindset of acceptance is one of the markers that shows a person has turned the corner in his or her life, quit drinking, and has what it take to get through the process in order to win his or her license back.
Not surprisingly, the idea of a relapse leading to a DUI can come as a kind of mixed blessing: on the one hand, it can turn out to be the real “lightbulb moment” for some people, and mark the point where his or her life changes for the better. This is usually because the person accepts, with the force of a hammer, the reality that he or she simply cannot drink anymore. On the other hand, being too open about having issues with drinking then having had a relapse can really complicate a DUI case. Although a drunk driving arrest may really be a pivotal moment in a person’s life, the extent to which we should reveal that it was part of a relapse depends on a lot of factors.
If that was all there is to this, then we could have stopped at that first paragraph, but, like everything else in life, it gets a bit more complicated. For every caller whose case is a clear “yes” or “no” in terms of being able to move forward right away, there are also plenty of “maybes.” It’s knowing what to do, and when to do it in those cases, that really calls upon our experience and knowledge. Nobody wants to wait longer than they should to get their license back, yet the cost of moving forward too soon is that you’re case will be denied and you’ll be stuck without a license for a whole additional year.
First, it helps to understand why the Secretary of State requires a person to be off probation or parole. Being under legal supervision is perceived as “living in a controlled environment,” meaning that the person is NOT free to have a drink if he or she wants, simply because he or she has been ordered to abstain, with the threat of some kind of punishment hangin over his or her head for violating that order. This is more obvious when a person is still on probation for his or her last DUI and is either being tested, or at is least subject to testing, for alcohol and/or drugs. However, even if a person is not tested regularly, or at all, he or she is still under a court or parole board order to not consume any alcohol.
At a preliminary exam, the prosecutor will call some witnesses. This usually includes the arresting and/or investigating police officer, a victim, if there was one, and maybe a key eyewitness. Not everyone needs to testify at this phase of the case. Remember, this isn’t a trial, and the prosecutor doesn’t have to prove anything like guilt beyond a reasonable doubt, but merely that there is a debatable question of fact that the defendant committed the charged crime. In that sense, “he-said, she-said” is more than good enough for a case to survive the probable cause test at this stage.
The one thing that most people know right out of the gate is that a felony is more serious than a misdemeanor. Few things in the law are absolute, but the idea that facing a misdemeanor is always “better” than facing a felony is one of them. Of course, the flip side is that facing a felony is always “worse,” and usually more expensive.
I certainly know what I’m talking about, and I put my money where my mouth is because I guarantee to win every license appeal case I take. The majority of my clients are not in AA. In fact, I’d estimate that around 4 out of 5 of my clients do not go to AA meetings. That said, most of my clients have gone to AA in the past, at least for a little while. Even having attended a few meetings can be very helpful in the context of a license appeal.