Michigan Criminal Defense Lawyer Blog
As a Michigan DUI lawyer with a practice that concentrates exclusively in the Metro-Detroit area, I handle a lot of 2nd offense OWI (operating while intoxicated) cases. If you’re facing an OWI 2nd charge, the first concern you have is staying out of jail. Of course, this should also be the first concern of your lawyer, as well. Yet all the concern in the world won’t do you any good unless it translates into intelligently calculated and properly executed effort. It may seem trite, but hard work, in and of itself, can be a tremendous waste of time. You can go outside, gather up a pile of sticks and spend your time striking rocks together to create a spark that ultimately makes a flame, or, you can be smart about it and use a lighter or a match. In the context of a 2nd offense drinking and driving charge, it becomes important to understand that you must always take into account what’s at hand, and then use it, in the best way possible, to drive a better outcome.
Before going any further, let me clarify that the very first order of business in any DUI case is for me (and every lawyer) to gather the facts and investigate. This means obtaining the police report(s), breath and/or blood test results and any police car, dash-cam video. Every detail of the stop, the arrest, and the evidence must be examined carefully with the intention to find a way to beat the case, or at least find any problems with the evidence. It is only after that has been done that we turn to using what is “at hand,” and by that, I mean the facts of the case. I am fond of saying that combining a thorough knowledge of the facts and the law of a case to the careful application and management of perception, science and time produces the best outcome in a DUI case. Let’s make sense of this by looking at an example where we can focus on the management perception.
Imagine that you were talking to one co-worker about another co-worker named Stephanie who had recently been charged with a DUI, and you were told that she got so drunk she crashed into a parked car in some distant city, passed out behind the wheel and then was arrested. Imagine further that you were also told, in dramatic form that “Her breath test results came back way over twice the legal limit, like a .19 or something.” Your reaction would probably be negative; you might respond by saying something like, “No kidding, huh? That sucks. She must have a problem.” Now, what if the same story was told like this, instead? “Poor Stephanie; she is such a lightweight, and she wound up getting roped into going out with this group of people who are all big drinkers. They had her drink way too much, and the poor thing didn’t want to bother anyone to come get her. She was so out of it that she tried to drive home herself. She wound up getting lost, hit a parked car on some street on the other side of town, and then she just passed out. Someone called the cops, and they found her and took her to jail.” While neither story is good, your perception of Stephanie in the second description is probably not as negative as it was in the first. Managing perception is very important in a DUI case, and is only one small part of the equation…
2nd offense DUI convictions carry a legal presumption that the person has a drinking problem. This is why the law mandates that a person convicted of 2 alcohol and/or substance abuse related driving offenses within 7 years will have his or her license revoked for a minimum of 1 year. This is also why, in order to get it back, the person has to file a driver’s license restoration appeal before the Michigan Secretary of State and prove, by what is called “clear and convincing evidence” that his or her alcohol problem is both “under control” (meaning that he or she can fix a sobriety date) and “likely to remain under control.” This requires a person to prove that he or she is likely to never drink again because they have both the commitment and the tools to remain sober. No matter how you cut it, there is not a Judge out there who will not conclude that someone arrested for a 2nd DUI within 7 years is high risk and has a drinking problem. If you’re reading this for yourself, you probably already know this in your bones. I’m not here to rub it in, but rather show how we can take that “lemon” and turn it into lemonade.
Amongst those things that differentiate me from the larger pack of “DUI lawyers” is that I bring a clinical substance abuse background and education to the table. After more than 2 decades of immersed experience in this field coupled with the formal study of these issues at the post-graduate, University level, I have a rather deep well of knowledge about the development, diagnosis and treatment of an alcohol problem. I use this clinical knowledge to help my clients produce better results in real world cases.
It is very easy to “over-pathologize” a 2nd offense DUI situation, and this is a common mistake that I see in court all the time. It doesn’t take any kind of special lawyer to say something like, “Your Honor, my client knows that she has a drinking problem,” or “Your Honor, my client understands the need to get help with his drinking problem.” Those observations only tell the court what it has already concluded. Rather than resorting to the use imprecise terms like “drinking problem,” however, it can be far more helpful to manage perceptions by using more clinically precise terms. In this way, we are using “science” (remember, the careful management of perception, science and time) to our advantage. Having a sinus infection and having bladder cancer are both “health problems,” but they are very different problems with very different treatments and potential outcomes. In the case of a troubled relationship to alcohol (how’s that for a different way of expressing things?), we seek to shift the Judge’s focus away from criminal culpability to the person’s clinical difficulties, with a careful eye to not make things any worse than they are. “Drinking problem” just never sounds good, and, on top of the way it “sounds,” it carries implications of the “moral model,” meaning that a problem with alcohol is in some way a moral or personal failing. Instead, as the lawyer, I want to be in a position to clearly explain to the Judge that I have helped guide my client to understand that his or her relationship to alcohol has become problematic or troublesome. Besides merely sounding better, this also conveys the reality that there is an available “fix,” and that we are on to it.
Here is where all that “clinical” stuff pays off. I am, first and foremost, a DUI lawyer. I am not a former prosecutor-turned-defense lawyer, a former police officer-turned lawyer, a substance abuse counselor-turned lawyer, nor any other prior profession-turned lawyer. While I am generally a very diplomatic and tactful person, and I am sure some are bound to disagree with my next statement, I do believe that, for the most part, when you take up the mantle of prosecutor or police officer or substance abuse counselor or even engineer, that creates the mold (“the die has been cast”) for your subconscious bias if you ever try and fill the role of a defense lawyer down the road. While I am intimately familiar with the clinical concepts of the substance abuse counselor, and I certainly am fluent in that profession’s language, I am not part of that profession; I am a DUI lawyer, and my education in that field was undertaken solely for the purpose of enhancing my skills in handling DUI and driver’s license restoration cases. Yet my commitment was far deeper than merely taking a few classes reading books in my spare time; instead, I invested my time and money and enrolled in a post-graduate program of study. Money wise, by the end of my program, the cost had passed $1000 per credit hour! When I step into a courtroom, I am the foremost expert regarding alcohol use disorders because I have the broadest and deepest knowledge of how an alcohol problem develops, how it’s diagnosed (and that means protecting my client from being perceived as having a problem he or she doesn’t), and, perhaps most of all, the range of empirically validated treatment options.
In the real world, the overwhelming majority of people (and this includes Judges and even those people who run “drug courts” and “sobriety courts”) tend to reflexively equate “treatment” of an alcohol problem with counseling and AA. Those are old favorites, but they are only a fraction of what we now know to be viable treatment modalities. AA is a wonderful program, and it has helped millions of people, but many people don’t like it. In the past, it was just assumed that someone didn’t like AA because he or she wasn’t ready to face up to his or her problem. Modern research shows us, however, that countless people manage to stay sober without AA. In fact, two of the most effective “treatments” for an alcohol use disorder are brief interventions and cognitive behavioral therapy (CBT), even though most people (including Judges and probation officers) have no clue what these are, or what they entail.
Let’s return for a moment to the example of co-worker Stephanie, who was found passed out behind the wheel after getting lost on her way home and hitting a parked car, only to be arrested for a DUI and testing out at nearly 2 and ½ times the legal limit. Let’s add one more detail for this example: Let’s assume that this is her 2nd DUI in 6 years. If her case winds up in an “average” Detroit-area court, she is going to be “perceived” as having a drinking problem, and one that is relatively advanced, at that. She will, by law, have to be ordered into at least some kind of counseling, and you can bet that, in most courts she will “automatically” also be ordered to attend AA multiple times per week. That’s old-school, and it’s almost a given. Now, assume that Stephanie is an attractive young woman in her mid-to-late 20’s. When she walks into her first AA meeting at a local church on a Thursday night, she finds the room mostly full of middle-aged men. She is already cringing. A few guys give her the once-over, and then treat themselves to another look. Now, she is only thinking “I just want to get out of here…” No matter how well-intentioned her fellow meeting attendees may be, and no matter how much there is to learn from AA, the moment she feels like someone is leering at her, that’s it; she closes up, hates AA, and despite any therapeutic value the program potentially has, it is lost to her. Of course, the same thing holds true for anyone who walks into a meeting and encounters a strong personality that he or she finds disagreeable. Yet when the court is on someone’s back compelling him or her to go to AA even though it’s clearly not for them, the only thing they’re likely to get out of it is a building sense of resentment.
Before you get the idea that I’m bashing AA, let me make clear that I am not. Without a doubt, AA is a wonderful program; there is probably NOTHING a person can learn from all the rehabs in the world that he or she won’t get from AA. But no one can deny that AA meetings are like restaurants in that what makes a good meal for one person does not for another. The problem, in the DUI world, is that everyone thinks “alcohol problem” and then thinks “AA.” Modern research shows that a negative rehabilitative experience early on can have a detrimental effect on a person’s inclination to get help down the road. An important aspect of this is a concept called “diffusion.” It principally refers to how long it takes for a new treatment modality to go from being validated in the University hallways to being used by substance abuse counselors in their offices. It also refers to how long it takes a current treatment modality to find acceptance in the judicial sphere. I remember, sitting in a classroom full of post-graduate students, many of whom were already career professionals, and hearing that it was just understood, as a matter of course, that the judicial system is 10 to 20 years behind the modern treatment curve. At first, I wanted to respond, to defend my profession, but as I listened further, I realized that it was true! The whole rehab world knows the court system is decades behind the leading edge. Welcome to 1995…
This is why it falls upon me to take charge and help the court understand the broader range of diagnostic and treatment modalities that are available, and about which the court may not have much, if any information. This is also why having a lawyer stand next to you whose best tactic is to say something like “My client understands she has a drinking problem and wants to get help” is practically useless. How is that persuasive? And persuasive as to what?
In terms of using those things “at hand,” let’s go back to Stephanie, the girl in our example: She hit a parked car. That sounds horrible, right? Well, to follow up on the idea that when life hands you lemons, you should make lemonade, how about using that ugly fact to her advantage? She hit a parked car because she’s not good at driving drunk. Her BAC result was nearly 2 and ½ times the legal limit. This means that unlike some people who get pulled over for speeding and are found to be nearly 3 times the legal limit, Stephanie has no such tolerance, and is bouncing all over the road, lost on the other side of town, only to just plain stop her car and pass out. If the first inference drawn about her is that her BAC shows a tolerance to alcohol, we need to focus on the implications of the actual facts: Instead of being perceived as having a high tolerance, she has, in fact, demonstrated that she cannot even marginally function at such a level.
Here, we move away from over-pathologizing her situation. Instead of making excuses, we have Stephanie undergo a thorough substance abuse evaluation from a counselor who has a holistic approach to treatment so that the full menu of counseling and treatment options can be considered. Using time to let the “victim” of the damaged car cool down, and using science in terms of diagnosis and treatment, we manage perception by bringing Stephanie before the court and have her be able to say, and mean it, that she has come to realize that her relationship with alcohol is risky and troubled. By then, the owner of the car she hit has had it fixed and lost interest in anything else, so it’s unlikely that he’ll be coming to court. Stephanie has come to realize, and will be able to explain that while she may not drink often, when she does, it’s like pulling the handle of a slot machine; you don’t know what the result is going to be.
This article must necessarily oversimplify things, but I’m sure the reader is more interested in an overview than a research paper. Whatever else, the considerations outlined above are critical in bringing about the best outcome in any DUI case, and particularly relevant in a 2nd offense case. The client and the lawyer should discuss these things in detail, because these are precisely the kinds of details that really matter. At the end of the day, success in a DUI case is ultimately defined mostly by what does NOT happen to you. If you are facing a drunk driving charge, be it a 1st, 2nd or 3rd offense in the greater Detroit-area (anywhere in Macomb, Oakland or Wayne Counties), and you need to hire a lawyer, do your homework; read what DUI lawyers have written on the web, then pick up the phone and call around. When you’re ready to hear what I have to say, call my office anytime Monday through Friday, from 8:30 a.m. to 5:00 p.m., at 248-986-9700 or 586-465-1980.