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.

It is at this point that the Lawyer needs to carefully examine the Evidence against the Client. When I say “carefully,” I really mean look for a way out of the case. While I’m not a believer in fighting for the sake of fighting, and coming into a situation flailing away without direction like a dizzy Tasmanian Devil, every aspect of the case, from the Traffic Stop to the Breath Test at the Station must be put under the microscope to make sure we don’t miss a viable chance to challenge the admissibility or legality of the evidence, and the opportunity to have the charge dismissed outright.

And let’s face facts: Most cases aren’t legally screwed up enough to have a Judge just decide to “throw it out.” In fact, if you look at the numbers, statistically speaking, banking on that kind of outcome is a longshot.

One trend I’ve noticed is that some Lawyers or Firms charge a King’s ransom and make a big ruckus about all the things that can theoretically be wrong with the evidence in a DUI case. I cringe when I see people shelling out thousands and thousands of dollars after being hooked in by a convincing sales pitch which, more often than not, appeals more to their fears and hopes than to any reality of the situation, only to wind up Pleading guilty later on down the road. A person should not pay for the Trial of the Century in order just to find out if there does not need to be the Trial of the Century.

Fees are important to both sides. I have always disliked the lack of any serious discussion about this subject. I am the only Lawyer I know who lists his Fees on both his Website and Blog. And since this is my Blog, let me tell you what I think about Fees:

I think it’s fair to expect your Lawyer to do a thorough job of investigating your case. No one should just come into this situation and be ready to roll over without knowing the ins and outs of the case against them. That’s like receiving a diagnosis of Cancer and making out a Will instead of finding out about Treatment Options.

Still, there has to be a happy middle-ground here, somewhere between those that will charge a fortune, and request practically every document in the Library of Congress to justify that Fee, and those that will, for a bargain-basement price, just stand beside someone as they go through the DUI process, acting more like an ornament than anything else.

I’m not here to bash anyone, and I won’t do that, but if you see the same person or firm coming up under every “Google” search for DUI, or related terms, using all kinds of different sounding website names, it makes you wonder. At least it should.

I’ll be honest here: I’m in business to make money. Would you believe me if I said that I love the Law so much, money doesn’t matter? However, after 20 years of doing what I do, and doing it rather well, I think, I am in a position to offer a lot more help to someone facing a DUI or in need of License Restoration than someone with less experience. Just being older, however, does not make one necessarily better. I know Lawyers who’ve been at it as long, or even longer than me who I wouldn’t let represent me for free.

If a person has a certain aptitude for something, and becomes a student in their discipline, then those years of experience help make them better at what they do. Beyond that, a veteran Attorney will cultivate contacts, and spend his or her time learning the best ways around a particular case, place or issue. Sometimes, the idea of “who you know” is very important.

Here’s a real-life example, in which I must necessarily be very vague: There is a Prosecutor I know who has a pretty strong position on a certain issue in a certain type of case. This person will not agree to a particular, more favorable type of Plea Bargain when this issue is present in a Case they are handling. When I wind up sitting on the other side of the table from that person, I simple get a new Court date because I know that person is on a rotation, and if not the next time, then the time after, I will be sitting across from someone who is more flexible on that particular issue, and I’ll be able to wrap the case up with the kind of more favorable Deal I need for my Client.

That’s experience. If you paid $4000 for a Lawyer who didn’t know this, and that Lawyer came out and said “look, this is the best deal we can get,” and you wound up taking that deal, then you were deprived of the much better deal you could have had if you had done your homework a little more and gotten a Lawyer (for about half as much, no less) who is more familiar with the Court (and Prosecutors) where your case is being heard.

This is also why I don’t get involved with cases outside of certain, rather local geographic area. What kind of “experience” would I have to offer if I’m not routinely in that Court?

This is part of the “double-edged sword” aspect of the Fee issue. While a bargain-basement price will almost never result in top-quality legal representation, getting soaked for a lot of money isn’t likely to bring much better results. In other words, a high fee doesn’t mean anything.

Often, a Lawyer will seek to capitalize on a reputation, whether deserved or not, or an association with another Lawyer (or that Lawyer’s reputation) in order to justify a high fee. When you’re facing a DUI 2nd Offense case, you can almost count on the fact that the Lawyer who just won a Murder Trial, and now wants $10,000 for a Retainer in your case, is NOT the guy to hire. Experience in DUI cases is what matters most in hiring a Lawyer for your DUI. You wouldn’t think of hiring the best DUI Lawyer to represent you if you were facing a Murder charge, would you?

I charge what I think is a fair Fee in my cases. My fees take into account the need to investigate the facts of the case. If it turns out there is a viable way to have the case “knocked out,” or if it looks like the case needs to go to Trial, then additional Fees are assessed. Unless those rather exceptional things are present, then my Client knows, up front, exactly what the case will cost. I often point out that, personally, I WILL NOT do business with anyone who cannot tell me, up front, EXACTLY what something is going to cost. I understand that there is sometimes a need for additional work, but that can at least be accounted for in a price-range.

Thus, if I was looking to hire a Lawyer, I run away from anyone who just tried to get me into their Office to “talk about it.” To me, that’s just a slick way of planting someone in the “Client chair” and closing the deal.

Whatever else, I can almost guarantee you that anyone who has paid too much for a Lawyer started out that way, going into his or her office for a “consultation.” Whatever you can say about the bargain-basement guys, at least they won’t waste Office time trying to lowball the price.

In part 2 of this article, we’ll pick up with a discussion of “consultations,” some thoughts about finding the “right” Lawyer, and the most important aspect of any DUI case, the Probation Interview and the Alcohol Evaluation/Screening Test.