Amongst the various articles within the Drunk Driving section of this blog, I have addressed the issue of avoiding Jail in 1st Offense DUI cases, 2nd Offense cases, and 3rd Offense cases, albeit separately. It has been politely suggested to me that not everyone wants to engage in the kind of time consuming, in-depth research that I find so interesting, and that some would prefer a single, more overview-type article about staying out of Jail in DUI cases covering all 3 levels of the Offense. This 2-part article will be my best attempt to do that.
At the risk of being both repetitive and overbearing, it is, I think, worth pointing out that my experience as a DUI Lawyer spans more than 20 years. I don’t handle Divorce cases (never have), Don’t do Wills (never have), and don’t sue anybody. The bread and butter of what I do is DUI and Driver’s License Restoration (which itself arises from multiple DUI’s). Accordingly, what I am about to describe below is the product of tremendous experience handling DUI cases. It’s not merely a part of what I do; it is the very foundation of what I do, day-in and day-out.
That said, in more recent years I have been able to restrict my DUI practice to the Tri-County area around Detroit. My Website’s name, macombduidefense.com, should be a clue to that. I handle DUI cases in Macomb, Oakland and Wayne Counties. Once in a while, I’ll take a case in Lapeer or St. Clair County, or even Livingston County, but I do not and will not go beyond these areas. As a result, some, or even much of what I say may not apply to cases pending in other Counties.
After being hired, the first thing any good DUI Lawyer is going to examine is whether there is some way to beat the charge, or have some of the evidence (usually from the Stop, the Field Sobriety Tests, or the Chemical Testing, meaning Breath or Blood) “thrown out.”
Even if a challenge to the evidence may not result in an outright dismissal of the charge, it can possibly aid the Lawyer in getting the case knocked down to a non-alcohol traffic charge. To be truthful, this examination is (and should be) undertaken in every case, but finding such “problems” with the evidence is far more the exception, rather than the rule.
This means that the vast majority of DUI Arrests will hold up, and the person will have to deal with a DUI charge as a DUI charge. Still, it doesn’t hurt to “dot the I’s and cross the T’s” and make sure that case is solid.
What I am about to say next, while good news to the reader, has the potential to cost me money, but we’ll get to that later.
In every Court in which I practice, with the sole exception of 1 Judge in the 48th District Court in Bloomfield Hills, a 1st Offense DUI case, absent some aggravating and compelling circumstances, will virtually NEVER result in a Jail sentence. In Macomb County, you can take that to the bank.
The reason I mention the money thing is that it angers me to see anyone paying over money to a Lawyer in a garden variety 1st Offense DUI case with their primary thought being that the Lawyer will keep them out of Jail. And it angers me even more to know that some Lawyer is accepting that person’s money on that basis. Using scare tactics to get hired, or even allowing someone to incorrectly believe that you are sparing them a fate they have essentially ZERO risk of suffering, is just plain wrong. I won’t do that.
I’ll say it again: In anything short of an aggravated or exceptional 1st Offense DUI case, with the sole exception of 1 rather well-known Judge in the 48th District Court in Bloomfield Hills, a person, no matter who their Lawyer, will NOT be going to Jail.
This means that a person facing a 1st Offense DUI should choose their Lawyer for reasons other than just making sure they stay out of Jail. They’re not going to Jail in the first place. If the Lawyer’s pitch is that they will “avoid Jail” for the Client, then they’re not only getting paid to prevent something from happening that isn’t going to happen, anyway, but they are likewise missing the whole point of what the Lawyer should be doing for the Client in exchange for that money.
And that “point” is to minimize consequences. Not going to Jail is a great thing, but being stuck on Probation forever, and being forced into frequent breath and urine testing, and attending all kinds of classes and counseling, and getting saddled with endless hours of community service is no picnic, either. I have observed before that at the time someone is facing a DUI, and their first fear is Jail, they’ll pretty much agree to anything in place of Jail. That’s a normal reaction.
However, once a person gets out of Court, and realizes that their fear of Jail was an overreaction because they were never at risk of being locked up, anyway, they still are left to deal with all of the other stuff that has been Ordered as part of their Sentence. As that reality sets in, and they begin the drudgery of frequent testing, counseling, classes, community service and whatnot, they understandably become a bit resentful. The most common, and perhaps accurate phrase used to describe this situation is this: “This is bull$**t!”
This means the Lawyer’s real job in a 1st Offense DUI is to avoid as much of that “bull$**t” as possible. That may not be the most diplomatic way to put it, but it cuts right to the chase. No one want to be under a Probationary Order with too many conditions, no matter how relieved they are to have not been locked up in Jail.
Avoiding all of those “bull$**t” consequences is really a two-fold process:
The first part is to produce a Plea Bargain. In a regular DUI case (meaning a charge of OWI, which is what everyone means when they say “DUI”), the usual protocol, once the Lawyer has determined that the case is “solid,” is to negotiate with the prosecutor to reduce the OWI charge to the lesser Offense of “Impaired Driving.” This spares the person losing their License and saves a bucket of money, as well.
The second part goes directly to what happens to the person. It means the Lawyer has to minimize the consequences of a DUI, and help the Client avoid all that testing and classes, and counseling, as well as such fun things as community service and weekend work programs. For the record, community service is almost NEVER handed out in Macomb County. It means, in short, making sure the Client gets the “easiest,” most lenient Sentence possible. We’ll talk more about how that’s done in part 2 of this article.
To be clear then, almost NO 1st Offenders, expect those who have some aggravating or compelling circumstance in their case (like causing an injury accident) or those whose cases wind up before 1 particular of the 3 Judges in the 48th District Court in Bloomfield Hills will ever go to Jail. Therefore, hiring a Lawyer to prevent something from happening that isn’t going to happen is like buying snow gear for a camping trip in the Mojave Desert.
Things change a bit in 2nd Offense cases. The good news here is that in MOST cases, a person can be kept out of Jail. That generalization can be further clarified by noting that a 2nd Offender can generally be kept out of Jail in all Macomb County Courts. Notice the word “kept.” In 2nd Offense cases, this isn’t automatic, like it is in 1st Offense Cases. It takes some work.
Things are different in both Oakland and Wayne Counties. While a 2nd Offender can be kept out of Jail in MOST Wayne County Courts, the real trouble lies in Oakland County. At the risk of oversimplifying things, the farther north one goes in Oakland County, the tougher things get. For what it’s worth, the Novi District Court tends to be more like it’s northern counterparts.
The key to avoiding or, at least minimizing any Jail time in a 2nd Offense is to be strategically proactive. In a 2nd Offense case, barring having the case “thrown out,” the law REQUIRES that a person be Ordered into counseling. Since a person knows they’ll be going anyway, it makes far more sense to begin such counseling earlier, and to find a provider that is both affordable and convenient. This is where the Lawyer needs to help the Client. “Counseling” can mean anything from 3 times per week group and individual meetings to one-on-one sessions once every 2 weeks. There is no hard and fast rule to be used in selecting the best option. Instead, that must be done as a result of examining all the facts of the case, from the person’s BAC, to the time since their last Offense, as well as knowledge of the particular Court in which the new charge is pending.
Still, making the right choices early can have a huge payoff down the road. Beyond avoiding (or, in some Oakland County Courts, minimizing) a Jail Sentence, a person is going to have to face the issue of having their Driver’s License Restored after that 1 year mandatory Revocation has passed. The choices made early on need to include those considerations, as well. I have more than 70 articles about Driver’s License Restoration, and if there’s one thing they all add up to say, it’s that License Appeals are complicated, and to begin planning for one a year later, at the time a person becomes eligible to file and Appeal, amounts to having waited a year too long.
In part 2 of this article, we’ll pick up this discussion by looking at 3rd Offense cases, and how Jail can be avoided in certain situations, and how to minimize it in others.