Michigan Criminal Defense Lawyer Blog
Although a second offense DUI charge is NOT the end of the world, it is a big enough deal. The key thing about a 2nd offense DUI is that it really “levels up” from a first offense, which is often seen (or at least to the extent possible, should have been made out) as an out-of-character mistake that won’t happen again. The harsh reality here is that in a 2nd DUI offense case, jail become a much more realistic possibility. Sure, it can be avoided in many, if not most, cases, and can be strategically minimized in every other case, but you certainly don’t need a lawyer to tell you what you already know in your gut; this is a serious situation. In this 2-part article, I want to examine some of the more important aspects of 2nd offense OWI charges, because there is much more to them beyond the mere threat of jail. Even in those cases where someone is going to have to do a little time, they’re also looking at following that up with a much longer and far more demanding term of probation. The goal, therefore, in a 2nd offense DUI case is minimize all of that and do real damage control.
Let’s get the jail stuff out of the way first, because that’s everyone’s biggest concern. There are many courts here, in the local, Detroit area where jail can be completely avoided in a 2nd offense case, and some where it may be on the table as a possibility, rather than a probability. In addition, there are also a few Judges here who will almost always hand out at least a few days to any and every second offender. With every last drop of integrity I have a human being, let me be perfectly clear about this: anyone who says anything different is either lying or not experienced enough to properly handle a 2nd offense drunk driving charge anywhere in Oakland, Macomb or Wayne Counties. In either case, you should run like hell. Here’s where a reader looking to hire a DUI lawyer needs to exercise some good consumer skills and pay attention to how things are said, because it’s easy for lawyers to dance around this question and not answer it directly, or to address it deceptively by saying something like “jail is never a certainty in a 2nd offense case.” Nothing in life is really a “certainty,” but in the immediate context of your DUI case, we’re far more interested in specifics like “yes,” “no,” “always,” “never,” “likely” and “usually.“
My job, in every case, is to avoid jail completely when that can be done, and to absolutely minimize it when that’s not possible, and I’m exceptionally good at that. However, in my own life, I’m not the kind of person who simply wants to be told what I want to hear rather than the straight up truth, and I cannot imagine doing that to anyone else. Not to brag (okay, maybe to brag a little), but when it comes to writing articles like this, I have no match. I have written more good, informational articles (over 860, as of this writing) about DUI and driver’s license restoration cases than just about everyone else combined, and in the course of doing so, have really honed my communication skills. If I simply wanted to hook people in by making things sound all rosy and telling them what they want to hear, I could easily do so. There’s a lot of money to be made by doing that, because no matter what, people are drawn to what they want to hear, but that’s not who I am. My integrity is not for sale, but my skills are: if anyone can keep you out of jail in a local 2nd offense case, it’s me. Even in those cases that wind up in front of a Judge (like the one that puts most 1st offenders in jail) who is determined to give a little “reflection time,” no one is better than me at keeping that to the absolute minimum. That’s easy enough to say, but let me explain the how and why of it…
It helps to first understand how 2nd offense charges are sandwiched between 1st and 3rd (felony) offenses. I’m not talking about the obvious (duh!) numerical factor here, but rather how these charges are perceived in the courts and treated by the law. A 1st offense DUI can often be characterized as a mistake or an instance of poor judgment. By contrast, a 3rd offense DUI is seen as almost reckless, dangerous criminal behavior, and any sympathy for a person struggling with a drinking problem is typically outweighed by anger at his or her repeatedly breaking the law and putting people at risk. In terms of punishment, a 2nd offense DUI straddles the fence between the “give ‘em a break” mercy that you’ll get in most 1st offenses and the “lock ‘em up” sentiment that people express when talking about 3rd time, drunk driving felons. And this doesn’t even begin to address the underlying concerns about a person’s drinking, either.
Legally speaking, 2nd offense cases trigger Michigan’s “habitual alcohol offender” laws and subject a person to greater criminal penalties. More than that, however, is the overriding substance abuse concern that comes with each and every one of these cases. When you rack up a second drunk driving, you are presumed, by law, to have a drinking problem. To be clear, that’s not my opinion, or my “take” on this, that’s actually how the law itself works. No matter what the facts of your case, and despite anything you may say or think, it is an absolute given that when you walk into court for a second DUI within 7 years, it is assumed that you have a problem with alcohol.
The state feels so strongly about this that, by law, your driver’s license will automatically be revoked (meaning taken away for good) upon conviction for any 2nd alcohol-relate driving conviction within 7 years of your first. This isn’t anything like having your license suspended, where you get it back after a certain time. When your license is revoked for multiple DUI’s the only way to get it back is to win a driver’s license restoration case that cannot even be filed until after your minimum period of revocation (1 year, in a 2nd offense DUI case – but you also must have been off probation for a while, as well) has passed, and to do that, you have to prove, by what the law defines as “clear and convincing evidence” that your alcohol problem is “under control,” meaning that you’ve quit drinking for good, and that it is “likely to remain under control,” meaning that you have the commitment and the tools to stay sober and never drink again. In other words, because the state has concluded that anyone with 2 DUI’s has a serious alcohol problem, until you prove that you’ve become and will likely remain alcohol free for the rest of your life, the state won’t even consider putting you back on the road.
Everyday experience has shown that most people charged with a 2nd DUI will insist that, no matter how bad things may look, they really don’t drink that much or have any kind of drinking problem. Everyone in the system, myself included, hears that all the time. Within the court system, though, a 2nd offender’s self-analysis that he or she isn’t a big drinker or doesn’t have any kind of problem with alcohol counts for exactly nothing. It’s expected that most 2nd time drink drivers will be in denial, while a minority will be open to at least consider that, however much they do or don’t drink, something isn’t right when you wind up busted for drunk driving – again.
This brings us to one of the inherent problems with the court system. Although the law concludes that anyone with 2 DUI’s in a 7-year period has some kind of drinking problem, and even though most people on the outside would probably not dispute that, those most likely to disagree view are the DUI drivers themselves. These are the very people that the system wants to “change,” but the only way it has to do that is to order (i.e., force) them into counseling and/or treatment. Sure, sometimes it works, but many times, a person is simply not ready. In fact, some people are years and multiple more DUI’s away from ready. It’s an easy dilemma to identify, but solving it is and has been the challenge. The “fix,” so to speak, has been elusive, at best.
It will be an easier ride for those who admit that something about their drinking is (or at least could be) amiss. Those who shake their heads and insist that they’ve just been unlucky, and that they have no issue with alcohol are in for a bumpier ride…
Here’s where my skill set become so helpful; I have a formal post-graduate education in addiction studies. This means that I understand, from the the clinical perspective, the development, diagnosis and treatment of alcohol problems, enabling me to actually help my clients – both those who are open to the idea that their relationship to alcohol has grown troublesome, as well as those who believe otherwise much more so than if I was just another DUI lawyer. Although it would be great if everyone had balanced communication skills that make them as good a listener as a speaker, the truth is that lawyers are usually best at talking, while clinicians are usually better at listening. Fortunately, I have both of those skills, and use them to my client’s advantage every single day. Rather than just let that hang there, like some self-important comment, though, let me clarify what I mean: it is the combination of the listening and the lawyering that enables me to hear my client out, really paying attention to how and why he or she thinks their drinking isn’t problematic, and then explain to them that whatever else, the very fact that they have a 2nd DUI means they are demonstrably more of a risk when they drink than all the people with only 1 DUI, and all the rest with none. Think about it this way; if some years ago, you went ice skating and, through a freak accident, fell and broke your right ankle, and then sometime later, though another freak accident, were pushed down and broke your left ankle while skating, you’d probably conclude that, whatever else, ice skating is just too risky for you, right?
Because of my education and experience, I make sure to NOT do what the court does, which is to ignore everything a person in a 2nd offense case says about themselves and then simply jam them into the nearest counseling or rehab program in the usually mistaken hope that they’ll have the denial squeezed right out of them. I work with everyone to understand that, no matter how they see themselves, they walk into court with both the pre-ordained perception and legal presumption that they have a drinking problem. This applies even to those few people who truly are unlucky and really don’t have a drinking problem (except that, whatever else, they still are “riskier”). They system, however does not even contemplate that someone with a 2nd DUI doesn’t have some kind of issue with alcohol. No matter what, a 2nd DUI is the result of at least a risky relationship to drinking, if not proof of an outright problem. That said, it will do little good to stand by and watch such a person forced through some kind of program that requires them to admit they have a drinking problem from the outset when they don’t believe they do. If anything, a person may eventually come to that conclusion (or not) through dialogue, but not by forcefully being told how and what to think. You don’t have to be a counselor to realize that it is likely to be much more productive if a person is allowed to go somewhere where ideas can be explored and conclusions evolve, rather than being dragged through some “one-size-fits-all” program that is based upon a conclusion with which the person doesn’t agree from the get-go.
We’ll stop here and continue our examination in part 2 of this installment by, among other things, looking at sobriety courts and why they should at least be explored in every 2nd offense DUI case.