Michigan Criminal Defense Lawyer Blog
While everyone worries about staying out of jail and losing their driver’s license for a High BAC charge (technically called OWI with a BAC of .17 or Greater), there is another key concern often overlooked, or that even goes unnoticed, by a person scrambling to avoid the legal penalties in such a case; the perception that he or she has some kind of troubled relationship to alcohol. Anyone arrested for a High BAC is very much at risk to be seen within the court system as having an alcohol problem, and it is important to understand why that’s the case, in order to be able to do something about it.
In order to keep this article of manageable length and on point, we won’t get into some big, general examination of High BAC cases, but rather why the very term “High BAC” generates an extra-negative perception, and what can be done to counter that. It is important to begin by noting that even though the main component of a High BAC charge is the elevated BAC result itself, that’s really just “the icing on the cake,” so to speak, because it builds upon the long-established fact that, as a group, DUI drivers have a higher rate of drinking problems than the population at large, meaning people who don’t get a DUI.
This ties into something so important, I recently completed an 8-part examination of it, and have even dedicated an entire topic section on this blog: the alcohol bias. We won’t re-examine it in much detail here, but the foundation of the bias is based upon that statistical reality that DUI drivers do, in fact, have a higher incidence of troublesome drinking than everyone else. This means that anyone walking into court for a DUI charge is seen as a member of that at-risk group. This is only exacerbated when you add a BAC result that practically screams “big drinker!”
For as much power as they have to approve or deny license appeals, hearing officers are constrained to exercise it within very strict rules. This is important, because even many lawyers don’t know the ins and outs of these rules, and fewer still work with them enough to really understand how they are interpreted and applied by each hearing officer. People who lose a “do-it-yourself” license appeal (or who lose with some lawyer who does not concentrate in this field) often become frustrated at their lack of success, and wrongly blame the hearing officer, without understanding how the application of the rules controlled the outcome of their case.
This means that finding the “best” DUI lawyer is really about getting the best person for your case, more than anything else. This, in turn, is dependent on things like the facts of the case, where it’s located, and how well the lawyer and the client “fit” and work together. Some people get along better with the kind of legal “buzzsaw” who, taking a shotgun approach, challenges everybody and everything within a case, while most others do better with a more thoughtful approach. And as much as someone might prefer one personality type over another, the lawyer has to be the right fit for the case itself, as well.
What, if anything, is the upshot of this? What are the implications for anyone with a pending DUI? Does this mean there is some way to “undo” the conviction for someone previously convicted of a DUI? While the answers to those questions are evolving, there are a few things we can take from this right away, not the least of which is that from this point forward, until things are resolved, the MSP, as noted above, is recommending that suspected DUI driver’s undergo a blood, rather than a breath test.
Being able to win a license appeal and drinking alcohol are mutually exclusive things. The Michigan Secretary of State has drawn a line in the sand: after 2 or more DUI’s, the only people who will ever be allowed back on the road are those who can prove they have quit drinking for good. The state sees anyone who has had his or her license revoked after multiple DUI’s as too much of a risk when it comes to alcohol. It may not be able to stop such a person from drinking anymore, but it’s not going to let them drive as long as they do. You can’t get past the fact that people who don’t drink are exactly zero risk to drink and drive.
Instead, as I tried to make clear, beyond having rather strict reporting requirements, the big risk for anyone with a professional license is that the licensing agency will require him or her to be “evaluated” to determine if they have any kind of substance abuse problem, and then required to complete any treatment deemed necessary as a result of that evaluation. As we’ll see in the coming paragraphs, the problem is that this takes place in an environment that, instead of being any kind of level playing field, is tilted far for toward the “better safe than sorry” side of things.
My team and I have, quite literally, handled thousands of DUI cases. Short of a professional lion-tamer, I can’t think of a profession we haven’t represented. We’ve taken care of DUI charges (including 2nd offense cases) for more medical and other professionals than I could count, and absolutely none of them have lost their licenses, or their jobs. In almost every case, with some skillful planning that accounts for the legal, employment and licensure implications of an OWI charge, everything can be worked out just fine.
This whole startup failure issue is “contemplated” within the notice of proper ignition interlock use contained in every order that’s issued after a successful driver’s license restoration appeal. The Michigan Secretary of State (SOS) provides rather detailed instructions about how to avoid any kind of violation in the first place, and then what to do if a person misses or fails a test. Unfortunately, the SOS drops the ball on this issue because the notice of interlock use “strongly suggests” that a person who fails a startup test obtain a timely PBT or EtG test, when, in fact, it generally EXPECTS a person to get one of these tests, and often penalizes those who don’t do so.
The dictionary defines systemic as follows: “relating to a system, especially as opposed to a particular part.” In terms of driver’s license restoration and clearance appeals, this means that understanding the individual parts of the license appeal process isn’t enough; one has to understand how they flow and interact, as a system. For example, most people know that to win a license appeal, you have to submit a “favorable” substance use evaluation (SUE), but they don’t really understand what the various course specifiers on the front page mean, nor what the differences are between them.
Educating the client isn’t merely about preparing him or her for things that will or might happen. Sometimes, it’s more about dispelling a person’s fears and misconceptions, as much as anything else. The issue of jail (or, really, the lack of it) serves as a good example for what I mean: I am undoubtedly the most vocal lawyer out there about the fact that, almost without exception, you won’t go to jail for a 1st offense DUI in the Metro-Detroit (meaning Wayne, Oakland, and Macomb Counties). I make that clear on both my website and in many of the more than 425-plus DUI articles (to date) I’ve written and published here, on this blog.