How to get the best Results in an OWI 3rd Offense (Felony DUI) case

If you’re facing a 3rd offense drunk driving charge anywhere in Michigan, then you already know it’s a felony. In this article, I want to avoid all the scare tactics and make clear that, in most cases, and with proper handling, a 3rd offense drinking and driving charge work out much better than you think. The week this article was written, I handled 2 “monster” felony DUI cases: The first was my client’s 6th DUI offense, and the other was my client’s 7th offense. In the 6th offender’s case I was able to negotiate a deal in the Metro-Detroit area’s toughest court system that will have him serving less than 48 days in jail. In the 7th offender’s case, I was able to have him sentenced to 14 consecutive weekends (28 days total) so he could keep his job and care for his aging mother (my client didn’t get bailed out of jail until 2 days after his arrest, so I was able to get credit for the 2 days he already served). In Michigan, a person convicted of OWI 3rd offense must serve at least 30 days in jail. This is mandated by law and is therefore non-negotiable. Everything beyond that, however, is fair game.

Results_Matter_small 1.2.pngThese exceptional results were achieved by combining a thorough knowledge of facts of the case and the relevant law with the skillful management of perception, science and time. Specifically, I used my clinical training (science) to make sure the Judge concluded (perception) that these exceptional sentences were appropriate. It is important to note that none of this was accomplished by hurrying (time) the cases along. “Timing,” as the saying goes, “is everything.” In DUI cases, the lawyer has to act as a counterbalance to the inherent tendency of the court system to get these cases wrapped up and moved off the docket as soon as possible.

When you’re facing a 3rd offense DUI, it’s easy to feel like you’re trapped in some kind of nightmare. Of course, this whole mess is far from an ideal situation, and certainly nothing anyone plans on, or plans for, but it is far from the end of the world, and with the right effort, we can make this a lot better than you might ever suspect. In fact, in many “true 3rd” offense cases, meaning a case where a person only has 3 prior DUI convictions in his or her lifetime, I can negotiate a 3rd offense felony DUI down a misdemeanor 2nd offense. I know this because I do it all the time. By contrast, in the cases mentioned at the start of this article, where the charges represented a 6th and 7th DUI, respectively, such a “deal” was not (understandably) on the menu, so my efforts were directed to minimizing the negative consequences. Obviously, that worked out rather well in both cases…

And this brings me to a critical juncture. Being a DUI lawyer is a prerequisite to handling DUI cases, but the outcomes achieved in the 2 cases this week were as much the result of my clinical training as my legal experience. I am formally involved in the ongoing study of addiction issues at the post-graduate, University level; I understand the clinical issues at play here. At the end of the day, a substance abuse counselor is not a lawyer, nor is a lawyer (even a highly skilled trial lawyer) any kind of clinician. To be a Judge, one must be a lawyer. Judges think like lawyers because they are lawyers. Lawyers and substance abuse experts operate in different worlds, and speak different technical languages. Because of my background, I am fluent in both. This can have profound implications for my ability to make things better in your drinking and driving case.

When a DUI lawyer hands up a substance abuse counselor’s report to a Judge in a drunk driving case, the Judge looks at it, reads its conclusion and recommendations, and then juxtaposes the clinical information presented therein with the legal reality of the person before him or her. This gets a bit thick, but stay with me: A substance abuse evaluation may be perfectly accurate in explaining how a person with 3 or 4 DUI’s clearly has an alcohol problem, and that the person now seems motivated to address it. The Judge, however, because he or she is not clinically inclined, will instead be predisposed to look beyond the pathology referenced in any evaluation and say something like, “I know you have a problem, but you have also broken the law on multiple occasions by drinking and driving and putting people at risk. You could have killed someone, and whatever punishment was imposed in your first 2 (or 3 or 4…) cases obviously did not work.”

If you get to this point, you’re about to be hammered. My job is to never let the Judge get this far. I have to mediate, and translate the clinical information in a way that doesn’t just “pathologize” my client, but instead explains, in very clear terms, why this won’t happen again. What separates exceptional lawyering from all the rest is, first, knowing this is the most important question to be asked, and second, answering it to the Judge’s satisfaction. To many lawyers, including DUI lawyers, the idea of managing thinks like perception and science is limited to understanding things like the field sobriety tests and the breath and or blood testing. While those things are important, they lose any value whatsoever in a DUI case that is not thrown out of court. A DUI lawyer may be capable of rebuilding the DataMaster breath testing machine blindfolded, but unless he or she gets your DUI charges dismissed, that knowledge is of even less benefit to you than if he or she knows a great recipe for salsa.

This is where we can see the importance of the management of perception. Any lawyer who breathes can hand a Judge a report that indicates his or her client has a drinking problem, and it doesn’t take Einstein to know that it should also say the client recognizes the problem, and seems intent on addressing it. Instead, and this is both absurdly simple and frustratingly complex, the real key to is to be able to explain to the Judge why this won’t happen again, and then convince the Judge that it won’t. Easier said than done, of course, but you won’t ever see a sentence of 14 weekends in a 7th offense DUI unless your lawyer can do just that.

This all sounds great, and it’s rather obvious that everyone wants the best outcome in his or her DUI case. Yet for all the ability I have, none of it can be applied in a case where the client is still in denial and not ready to stop drinking. A good lawyer, a good substance abuse counselor and a good Judge are all necessary components to a good outcome, but so is a good client. Even with as much confidence as I have in myself (and lawyers, as a group, are known to be confident, if not outright cocky), I must be honest and admit that I cannot turn lead into gold. I have to start with a client who is genuinely open to the idea that his or her relationship to alcohol is problematic. No one could take a 7th time offender and get him 14 weekends if that person honestly thought the only reason he was facing another DUI was merely because he was unlucky.

You can hire a whole team of great lawyers, but the main ingredient for an extraordinary outcome in a DUI case, or really for anything in life, comes from within. Sure, you won’t ever see anything like these results with a “low fee” lawyer, and spending a fortune doesn’t necessarily produce a corresponding upgrade in the skill set of the lawyer you hire, either. Like everything that’s good, you have to put some work into this. You have to spend time reading what lawyers have written, and then pick up the phone and call. Beyond that, you have to be the kind of person that “deserves” an exceptionally good result, and that requires more than just wanting one, or being willing to pay for it. If you are ready to move in this direction, I can help. My office is open Monday through Friday, from 8:30 a.m. until 5:00 p.m. We can be reached at (586) 465-1980. My phones are always answered by really nice people, and we can answer many of your most pressing questions right when you call.

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