Michigan DUI – 2nd Offense, or just your Second Offense?

A rather large percentage of my DUI practice involves handling second time drinking and driving cases, meaning cases for people that have had a prior drunk driving a long time ago, as well as people facing an actual 2nd offense DUI charge. The reason for this is pretty simple: Those who have been through the process before recognize that my various explanations of the DUI process are pretty much spot-on, and have learned to separate what one wants to hear from what is true and accurate. There is, at least legally speaking, a vast difference between a 2nd offense DUI charge and merely going through the process for the 2nd time after a prior offense many years ago. A 2nd offense DUI charge is one, by law, that is brought within 7 years of a prior such case. Technically speaking, a DUI is a “second” if the arrest date for the current charge takes place within 7 years from the date of the conviction for the first. This does not mean, however, that everything is just peachy-good simply because a prior DUI falls outside of the 7-year window. Sure, a whole boatload of legal problems is avoided when your second DUI is not technically a “2nd offense,” but you still have to deal with the implications and reality of that prior offense, even if it cannot be used to enhance the penalties of the current charge.

ball-number-2-clip-art-free-vector-4vector.pngRecently, while attending a hearing in a driver’s license restoration case, a hearing officer redefined things for me and my client (who did win his full license back, by the way) after he characterized his 2 DUI’s as “mistakes.” She looked up, interrupted him, and said this: “Those weren’t mistakes. When you drove drunk the first time, you committed a crime. When you did it again, you became a habitual criminal.” That may sound harsh, but it gives a glimpse of how these cases are seen in the larger world. I’m sure one of the reasons I have such a robust DUI practice is that I am unique in pointing these things out, and speak rather candidly, if not at least diplomatically about these subjects. Avoiding real-world discussions and/or sugar coating things doesn’t help anyone. I have no tolerance for being patronized, and, in turn, have no inclination to do the same to anyone else. It is very easy for a lawyer to simply agree with the client (remember, the customer is always right) and not want to offend him or her, but the reality is that if you’re going to do anything good for a person facing a second DUI, it means you may have to get a little uncomfortable and tell it like it is. And it is this way: a person going to court for a DUI who has had a prior drinking and driving conviction is going to be seen by the Judge (and almost everyone else) as having, or as being at a substantially increased risk of having, a problematic relationship to alcohol.

I say this because most people who contact a lawyer for a second DUI, even if the charge itself is not a “2nd offense,” will want to explain that no matter how things look, they don’t have a drinking problem. If you sat in my chair, you could pretty much bank on hearing that in almost every such case, and usually as one of the very first things a person will say, at that. I understand this, but as easy as it would be for me to nod and agree, if I’m going to make things better for my client, then I need him or her to understand that you can say that until the end of time, but, in only a few exceptional circumstances, you’re not going to get the Judge to just go, “Oh, okay, well, I’m glad you cleared that up…” You don’t have to think about this too long or hard to realize that it doesn’t matter what you or I think. In the final analysis, it matters what the Judge thinks, and, when you think about that even a little, you begin to realize that nothing else matters nearly as much….

I recall a Judge once addressing someone who was in court for a DUI (technically, a 1st offense) and who had a rather old prior conviction; the Judge held up the person’s record, pointed to that first offense, and said “I can draw a line from your first conviction right to this case, and that’s how long I know you’ve had a drinking problem.” While I don’t necessarily agree with that, and, as someone with post-graduate clinical training in addiction studies, know that is not really accurate, the larger point is that this observation serves as an example of how that Judge – and many Judges – feel. The point I’m trying to make here is that if you don’t begin handling your second DUI or 2nd offense DUI understanding this right out of the gate, then you’re going about it all wrong.

Understanding how things are perceived from the Judge’s side is key to understanding why things work the way they do. Yet we need to keep in mind that this is a starting point to figuring things out, and not the conclusion. It would be a mistake to just assume that everyone sees a second DUI, or a 2nd offense, as proof positive of a problem, or there is little that can be done to change someone’s mind if they do see it that way. There are a few generalizations that should be part of every case analysis and that can help dispel the oversimplified idea that a second DUI means the person is some kind of alcoholic.

First, you have to accept that even though a second DUI (or 2nd offense DUI) does not absolutely mean a person is an alcoholic, it does mean that, without a doubt, the person has trouble making good decisions at least some of the times he or she drinks. It means that absolutely every Judge will see such a person as an unacceptable risk to go out and consume alcohol. Here’s where the reader has to look at things from the other side; why would anyone in the world care more about your “right” to go out and drink (no matter how much you try and assure everyone that you won’t drive drunk again) more than he or she cares about the fact that you are a demonstrated risk to everyone’s safety? And here’s the real kicker, under Michigan law, a person convicted of a 2nd offense DUI case, (meaning when a person has a prior conviction that occurred within 7 years from the date of his or her arrest in the current case) is called a “habitual offender.” It is presumed, by law, that the person has a drinking problem, and therefore his or her license will be revoked (i.e., taken away, and not merely suspended) and he or she will be legally required to complete some kind of alcohol counseling.

This should also make clear that bull-rushing into court in a second DUI case, or a 2nd offense case, and blurting out to everyone within earshot that you DON’T have a drinking problem is not a strategy for success. Instead, given the fact that there is both a legal and practical presumption that do you have a drinking problem, we have to work on how that’s perceived. And to be sure, there are plenty of people for whom a DUI is proof positive that their drinking has become troublesome. Many of my driver’s license restoration clients, all of whom have years of sobriety to their credit, look back and point to that 2nd DUI as their “light bulb moment.” In the big picture, however, it’s always better to be seen as having less of a problem and being less of a risk, and having a bad problem or being a high risk. By the same token, any more than it’s not a good idea to run into court in a 2nd DUI and tell everyone that you don’t have any problem with drinking, it’s an equally bad idea to charge ahead and start confessing to the world that you do. Here, a classier and quieter acknowledgement that one’s relationship to alcohol has obviously become at least somewhat risky is the better way to go.

In the courtroom, lawyers win arguments against each other, but not against the Judge. It’s never, and I mean NEVER, a good idea to argue with the Judge. Instead, my job is to persuade the court. This is part of the reason I went back to graduate school and spent my time and money to complete the coursework in a post-graduate program of addiction studies. If I’m going to be able to really persuade the Judge that my client isn’t on some runaway train of alcoholic disaster, then I have to be the foremost expert on alcohol issues in the courtroom. We all have opinions, and lawyers are better than most at offering them up, but nothing beats persuading with facts, especially facts that have been empirically validated through extensive research.

So far, we have confirmed that just about anyone dealing with a second DUI, and everyone facing a 2nd offense DUI, will be seen as having a problem with alcohol. This is both a practical matter and something that is dictated by law; after all, Michigan’s law regarding 2nd offense DUI’s is called “Habitual Offender Legislation.” We have examined the time difference between a a DUI that is a 2nd offense versus one that is just the second in a person’s lifetime. In either case, though, it will not work to simply insist that you don’t have a problem, yet it is equally ineffective to have some kind of loud, public and messy “epiphany” that you realize your drinking is a problem and want to stop. Instead, and this is HUGELY important, we make sure that your “problem” is seen as manageable, minimal and non-threatening as possible. At the end of day, the big concern about anybody back for his or her 2nd DUI is making sure they never do it again. People who are vocal about not having a drinking problem and who insist that they’ve learned their lesson and that it won’t happen again are never seen as such; instead, they’re seen as the biggest risks of all. It is simple but undeniable that someone who does not drink is the best risk to not drink and drive. This accounts for why courts are so focused on alcohol counseling to help a person stop drinking, and testing to make sure they follow the court’s order to not drink while the case Is active.

Obviously, avoiding jail is important here, but so is avoiding heavy duty treatment that can be very expensive and very burdensome. This is best done through that more diplomatic approach I mentioned earlier. In that regard, I prefer to address my client’s situation in front of as few people as possible. I am a private kind of person by nature, but I have yet to find someone who would rather talk about their case in a crowded courtroom over one that has emptied out. And since there’s really no nice way to put what I’m about to say, I’ll just point out that on any given day in court, you can count on any number of lawyers and DUI drivers to say something stupid that will test the Judge’s patience. This is why I like to have my clients seen in contrast to that, rather than as part of the larger, clueless herd.

It goes beyond the scope of this article (and is really a deep enough subject for multiple articles in its own right), but in many 2nd offense DUI cases, a person can avoid the loss of his or her license by getting into sobriety court. I have handled countless sobriety court cases, and have even transferred clients from one court without a sobriety court to another that has one (and, obviously, will accept transfers), and even across county lines, as well. Because of my clinical background, I do not throw sobriety court out there as a viable choice for someone who is clearly not a candidate for it, and I believe that it should be explored with an open, but honest mind. Still, it is now part of the broader panorama of options in 2nd offense (and some 3rd offense) DUI cases, and needs to be fully examined as part of everyone’s case strategy.

Both a second DUI and a 2nd offense DUI need to treated in a special way. These are more serious than 1st offense cases, but lack the irrefutable clarity of a serious drinking problem that comes with a 3rd offense charge. It is important to understand how these cases are perceived by Judges, because it will be the Judge who ultimately decides what happens to you. A room full of sympathetic friends is of no use when you’re standing in front of one unsympathetic Judge. If you’re facing your second DUI in Oakland, Wayne or Macomb County, and whether or not it’s a 2nd offense charge, I can help make things better. I always advise doing your homework: Read what other lawyers have written that’s relevant to you, but read carefully and read between the lines. When you’re ready to learn more, pick up the phone and call around. You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 586-465-1980. We’re here to help