Under Michigan’s DUI laws, a 3rd offense OWI charge at any point in your life is a felony. This often comes as further bad news for someone who remembers when a 3rd offense could only be charged as a felony if a person had 2 prior drunk driving convictions within 10 years. Since 2007, however, the 10-year period for prior DUI’s has been eliminated, meaning that a person who is charged with a 3rd DUI crime at any point in his or her life will face a felony. Once someone learns this, the next question, almost asked instinctively, is something like, “Doesn’t the fact that I haven’t been in any trouble for ___ (fill in the blank) years matter,” or “Doesn’t it matter that my last one was ___ (fill in the blank again) years ago”? The short, simple answer, at least as far as the 3rd offense DUI charge goes is “No.” However, in terms of outcome, meaning the actual results of the case, the answer is decidedly “yes, it does matter.”
In this article, we’ll take a brief look at the situation in which a person who has 2 prior DUI convictions, and where one (or both) occurred more than 10 years ago (and maybe even way longer that that) finds him or herself charged with a 3rd offense (felony) drinking and driving charge. Without question, everyone who gets released from jail after a 3rd DUI arrest walks out in a kind of state of shock. For most people, the words “felony” and “prison” set off huge alarm bells. No matter how long between DUI’s, the court system will just assume that the person has had a drinking problem since his or her first DUI all the way up to this most recent offense. By contrast, when a person picks up his or her 3rd DUI after a long time between any of the 2 priors, he or she may think this shows that his or her drinking is or has not been some kind of out-of-control problem. Things always look different from the “other side.” Believe me, the Judge will see a problem; the performers facing the audience always experience the show differently than the audience in the seats looking at the stage.
In terms of experience and perspective, remember that the court system handles an endless stream of DUI cases and sees every kind of drinker, from people who get a single DUI and never get in trouble again to people who rack up 3 DUI’s in a single year. The court system is inherently biased toward the belief that most DUI drivers have, or at least have an increased risk to develop a drinking problem. By the time someone is facing a 3rd offense charge, every Judge out there will conclude, as a matter of fact, that the person has a troubled relationship to alcohol. This means that if you’re going to save your neck in this situation, you will either get in step with this way of thinking, or get rolled over by it, and let me be perfectly clear: Unless you get really lucky and the police botched your case so bad that the Judge just tosses it out of court, this is where your efforts and attention must be directed if you want to see the best and most lenient outcome possible in your case…
Imagine that Dan the driver had his first DUI back in 1989. He stayed out of trouble for about 11 years, picking up his second DUI in 2000, even though he was (and only could have been) charged as a first offender the second time around because he had no priors within 7 years; this rule regarding 2nd offenses (in order for a DUI to qualify as a “2nd” it must occur within 7 years of a prior offense) still stands, by the way. Dan’s “second,” like his first, was pled down to an impaired driving. Now, in 2015, Dan is arrested again for drinking and driving, only this time he’s charged with a 3rd offense felony. This is exactly what the law intended. Dan, for his part, may point out that he doesn’t drink every day, nor even every week, and that there were 11 years between his first two arrests, and 15 years between his second and third. To Dan, this makes sense, and in his mind proves that he doesn’t drink excessively, destroying everything in his path with a beer in his hand.
Maybe Dan can convince his girlfriend or wife of this, but no one in the court system will buy it. To the Judge, even if he or she believes Dan’s explanation about the infrequency of his drinking, it is clear that his relationship to alcohol is such that it is too risky to continue. On 3 occasions, he got drunk and drove and then got arrested for it. He is a risk on the road simply because of his drinking. In the majority of cases, by the time most people get to a 3rd DUI, their drinking has, in fact, become a real problem. Dan may not fit that mold, but that won’t go very far as a defense. Normal drinkers don’t usually get a DUI; few, if any, are “unlucky” enough to ever get a second one, and by the time number three rolls around, luck has nothing to do with it. You may disagree with that, but you can take this to the bank: You will never meet a Judge who does.
Here is the kicker: Even if Dan could prove to a Judge that he only drinks once in a rare while, and never to excess except on each of the 3 occasions that he was picked up for drunk driving, the simple fact remains that Dan is still a big risk. However you cut it, his relationship to alcohol is troubled, if only because it contains too high an element of danger when he does drink. There is no Judge in the world, much less in the Detroit area, who would say that Dan doesn’t have a problem. The issue may not be that he drinks too often, but his drinking is still a problem.
In fact, one of the difficulties often encountered by someone going through a DUI is the way he or she conceptualizes a drinking problem. For many of us, a drunk means a habitual drunk, like a skid-row bum. The “picture” of an alcoholic used to be someone who was old, and drank every day, or nearly so. Within this notion was the idea that if you don’t drink all the time, you couldn’t have a drinking problem. The modern understanding of “drinking problem” is much more flexible, meaning less defined and restrictive than it used to be. As such, it is also more accurate. The simple idea that “anything that causes a problem is a problem” works just fine here. You only drink once in a while, but you’ve been arrested for drunk driving 3 times? That’s a problem. “Enough said,” as the saying goes. It’s time to stop.
My job, as the DUI lawyer, is to communicate to the Judge (and prosecutor) that my client understands that he or she cannot drink anymore. This applies whether my client is an inveterate drinker who needs detox, or the super-occasional drinker (like Dan the driver) who has to learn to connect his or her infrequent drinking with the unacceptable risk it creates. Of course, doing this is a lot easier when it’s true, but the other part of my job title (attorney and counselor at law) is to help my client come to understand these things, as well. When you’re in a 3rd offense DUI situation, you’re way past the point of hiring a lawyer who is the “strong, silent type,” or who thinks his or her best descriptive adjectives are “tough” and “aggressive.” Here, I must help my client comprehend that wherever he or she is in terms of self awareness about his or her relationship to drinking, it is important to be able to switch views and see things from the outside perspective. In other words, the show looks one way from the stage and another from the seats. The performers would do well to see things from the audience side. This same change in perspective is necessary to fully appreciate how the court will see things, because, as I noted, it’s the Judges’ perspective that matters most, and even if you really believe you don’t have a problem with alcohol, you’ll never win that argument in court.
Now, for all of this, there can be no denying that someone who winds up in trouble only a few times, spaced apart over a long period, stands a better chance of leniency when compared to someone who seems to be unable to straighten up and fly right for any length of time whatsoever. If this is more like your situation, then this is an asset, and we should use it. To overestimate its value, however, is as foolish as ignoring it altogether. Like everything, the fact that a person has had some troubles, but not many, and not often, has its place in the proper handling of a 3rd offense DUI charge.
The most important lesson here is understanding how the Judge will see things, and as much as Judges can be different from one another, when it comes to 3rd offense DUI charges, there isn’t a Judge alive who won’t see that as positive proof of a problem with drinking. Being intelligently proactive in this regard will pay huge dividends. Proper guidance is key; and knowing what to say and when to say it is all part of that. Even for those not quite “there” in terms of understanding their relationship to alcohol, the old adage “fake it ’till you make it” is good advice.
At the end of the day, when a 3rd offense DUI client asks if it matters that one or both of his or her previous drunk driving cases were a long time ago, the answer is “yes,” but, as we’ve seen, it comes with an explanation.