Articles Posted in DUI

It’s normal to be stressed out after being arrested for a DUI. This is all the more true for people of good standing who never imagined themselves in the backseat of a police car, much less spending a night in jail. Unfortunately, the stress of facing a DUI often gives rise to a desperate urge to “fix this” right away. In this article, I want to make clear that while such feelings are normal, the reality is that things aren’t as bad as they may seem to you right now, and that the first and best thing you should do is to take a deep breath, calm down, and not act out of panic.

qwerty-300x283This is really the opposite message of the fear-based legal marketers you have probably already encountered. For all the things that can be said about that approach (and make no mistake, lawyers use it because it does work to bring in clients), the fact is, reacting fearfully is not any kind of “intelligent” or proper way to handle a DUI case. Better outcomes are the result of experience and the application of careful and deliberate planning, rather than unfocused emotional reaction. Remember, success in a DUI case is always best measured by what does NOT happen to you.

Although facing a DUI may trigger something of a “fight or flight” response, the fact is, once you’re facing a charge, it’s too late to run away from it, and it is not the kind of thing you brawl your way out of, either. Any kind of legal fight needs to be based on sound strategy, not panicked thrashing. A skilled lawyer will meticulously examine all the evidence in a case to look for anything that can genuinely be challenged, rather than just bark about all the things that could, in theory, be wrong with it. The facts of each case need to be assessed rationally, not emotionally.

In part 1 and part 2 of this article, we started an overview of how the real-world consequences of 2nd and 3rd offense DUI cases are very different from those involved in 1st offense cases. We looked at driver’s license consequences, professional licensing reporting requirements, and ended part 2 by pointing out how Sobriety Court programs can be a lifesaver for anyone who accepts that his or her relationship to alcohol has become problematic and wants to do something about it.

IMG_0690-1-300x235Although I don’t want to focus too much on Sobriety Court, there is another facet to this worth mentioning before we move on – kind of the flip side of the coin, so to speak. While it is required that a person admits to needing some kind of help with his or her drinking in order to get into sobriety court, there are plenty of people who aren’t interested in anything like that or who otherwise maintain that they don’t have any problem and are merely seen by the system as being in denial.

If the point hasn’t been made clearly enough so far, then it’s worth repeating here: any and everyone facing a 2nd or 3rd offense DUI is assumed and presumed to have a drinking problem. This is the single most salient aspect of a repeat offense DUI, and it will follow the person through the entire court system, through the revocation of his or her driver’s license, and will be the focus of any effort to get it back later on. Beyond that, this presumption can have profound professional and occupation consequences as well.

In part 1 of this article, we began an overview of how fundamentally different 2nd and 3rd offense DUI cases are from 1st offenses. We noted that while the risk of jail goes up significantly in 2nd and 3rd offense DUI cases, even that’s not a sure thing, and can often be avoided completely. Moreover, even if someone does get a short stint in jail, it’s usually measured in days, while some of the other consequences of a repeat offense DUI can last for years, and even a lifetime, and should really be the main focus of anyone facing them.

bull-with-sign-its-different-2-300x247This led us to explore the things that either will, or are very likely to happen to someone convicted of a 2nd or 3rd offense charge, including driver’s licenses sanctions, as well as the potential consequences to anyone who holds a professional license, or for whom a repeat offense DUI will have an adverse impact on his or her employment. I pointed out that, by operation of law, anyone convicted of a repeat offense DUI in Michigan is labeled a “habitual alcohol offender,” and is presumed to have an alcohol problem.

In the context of a professional license, a person will have to rebut the presumption that he or she has a drinking problem, either by showing that they have gotten help, and are in recovery, or that they never had a problem in the first place, even though that’s unlikely, because of the operation of law. When it comes to winning back one’s driver’s license, there is a legal presumption that any person convicted of multiple DUI’s has a drinking problem, and anyone who thinks they can prove otherwise is wasting their time.

The real world consequences of a 2nd or 3rd offense OWI charge are a lot different and more “real” than anything a person will get from a 1st offense DUI case. This 3-part article will not be some fear-based legal marketing piece, but rather an honest assessment between what are really 2 very distinct classes of DUI offenses. In the following sections, I want to examine 2nd and 3rd offense DUI cases in Michigan and see how they are fundamentally different than 1st offense cases, why that matters, and explore some options for making things better.

skny-300x276To be sure, the biggest and most obvious difference between a 1st offense DUI and 2nd and 3rd offense charges is the seriousness of the matters. While there is a veritable laundry list of potential legal penalties for all DUI cases, with plenty unique to 2nd and/or 3rd offense cases, an important part of our focus in this piece will be on the things that either will, or are very likely to actually happen. Beyond penalties, there is just something fundamentally problematic, in every sense of the word, about a repeat offense DUI that is entirely absent in a 1st offense case.

For example, in Michigan, anyone convicted of 2 alcohol-related driving offenses (DUI’s) within 7 years, or 3 such offenses within their lifetime is legally categorized as a “habitual alcohol offender.” There are numerous implications to this, but 2 things that will be felt very strongly by anyone facing either a 2nd or 3rd offense DUI is the revocation (as opposed to the mere suspension) of the person’s driver’s license, and the practical consequences of that legal presumption that he or she does, in fact, have a drinking problem.

In part 1 of this article, we began examining the rather serious implication that anyone facing a Michigan High BAC charge has some kind of drinking problem. While this is always a concern in High BAC cases, it really applies in any case where a person’s BAC result is elevated. This makes sense, given that it has been consistently shown that, as a group, DUI driver’s have a statistically higher incidence of alcohol problems than the population at large. That makes things worse for anyone facing the more serious “High BAC” OWI charge specific to having a bodily alcohol content that’s more than twice the legal limit.

menu-drinks-background-xxx-300x268We concluded part 1 by pointing out that about the worst thing a person can do is exactly what just about everybody does, in fact do, and that’s insist that they’re not a big drinker, that they don’t drink that much, or not that often, and/or that, on the day of their arrest, they really didn’t have that much to drink. As I pointed out, the people who work in the court system hear this same kind of stuff so much that they don’t really pay attention to it, and, moreover, don’t believe it anyway. This kind of minimization of one’s drinking will do nothing to actually help a case.

Here’s the thing most people fail to understand: minimizing one’s drinking, both overall and on the day in question, isn’t any kind of strategy that will help in a High BAC charge. Although it’s almost instinctive for people to make self-declarations that they’re not a big or frequent drinker, that they only had a few, or that they weren’t “that drunk” when they were driving, such statements are actually counter-productive to the outcome of a case.  This may seem counter-intuitive, but it’s also true.

While everyone worries about staying out of jail and losing their driver’s license for a High BAC charge (technically called OWI with a BAC of .17 or Greater), there is another key concern often overlooked, or that even goes unnoticed, by a person scrambling to avoid the legal penalties in such a case; the perception that he or she has some kind of troubled relationship to alcohol. Anyone arrested for a High BAC is very much at risk to be seen within the court system as having an alcohol problem, and it is important to understand why that’s the case, in order to be able to do something about it.

breathalyzer-3-300x287In order to keep this article of manageable length and on point, we won’t get into some big, general examination of High BAC cases, but rather why the very term “High BAC” generates an extra-negative perception, and what can be done to counter that. It is important to begin by noting that even though the main component of a High BAC charge is the elevated BAC result itself, that’s really just “the icing on the cake,” so to speak, because it builds upon the long-established fact that, as a group, DUI drivers have a higher rate of drinking problems than the population at large, meaning people who don’t get a DUI.

This ties into something so important, I recently completed an 8-part examination of it, and have even dedicated an entire topic section on this blog: the alcohol bias. We won’t re-examine it in much detail here, but the foundation of the bias is based upon that statistical reality that DUI drivers do, in fact, have a higher incidence of troublesome drinking than everyone else. This means that anyone walking into court for a DUI charge is seen as a member of that at-risk group. This is only exacerbated when you add a BAC result that practically screams “big drinker!”

Who is the best DUI lawyer? What about the best singer, baseball player, or runner? Any serious attempt to answer a question like this must be qualified in various ways; whoever might be the best opera singer probably won’t make the cut for best R&B or rock and roll singer. In baseball, the best pitcher is a much different player than the best batter. In looking for the best, context matters. The “best runner” in the 100-yard dash is no doubt the fastest in that event, but is a lot different from the best marathon runner, who must pace him or her self for 26.2 miles.

download-7This means that finding the “best” DUI lawyer is really about getting the best person for your case, more than anything else. This, in turn, is dependent on things like the facts of the case, where it’s located, and how well the lawyer and the client “fit” and work together. Some people get along better with the kind of legal “buzzsaw” who, taking a shotgun approach, challenges everybody and everything within a case, while most others do better with a more thoughtful approach. And as much as someone might prefer one personality type over another, the lawyer has to be the right fit for the case itself, as well.

Specifically, nobody can be all things to all people. Certain lawyers are better at some things than others, and even do better in some locations than others. For example, my team and I limit our practice to the Metro-Detroit area, where we know, from repeat, day-in and day-out experience how things are done in each of the various courts in which we work. Location is important in a criminal or DUI case. Some Judges are “easier” than others, but however that shakes out in any particular case, a lawyer has to know how to deal with it, and we make sure we do.

As Michigan DUI attorneys,we stay on top of all developing legal issues. This one, which is both interesting and important to a lot of people, has been widely broadcast on news channels across the state: On January 13, 2020, the Michigan State Police moved “to take all 203 Datamaster DMT evidential breath alcohol testing instruments out of service until MSP can inspect and verify each instrument to ensure it is properly calibrated. In the interim period, the MSP recommends that police agencies utilize blood draws rather than breath tests to establish evidence of drunk driving,” according to an official MSP statement published online.

dmt-1-300x251What, if anything, is the upshot of this? What are the implications for anyone with a pending DUI? Does this mean there is some way to “undo” the conviction for someone previously convicted of a DUI? While the answers to those questions are evolving, there are a few things we can take from this right away, not the least of which is that from this point forward, until things are resolved, the MSP, as noted above, is recommending that suspected DUI driver’s undergo a blood, rather than a breath test.

What has been disclosed thus far is that the MSP has learned that an outside company hired to calibrate and maintain all the Datamaster breath-testing units may have falsified documents relating to their upkeep. This, of course, opens up the possibility that any machines affected, when used, may not have been functioning properly, and therefore could have provided inaccurate BAC results. This has significant potential implications for anyone convicted of an OWI offense (DUI), or who is otherwise facing such a charge, based upon Datamaster breath test results.

In part 1 of this article, I began explaining how, although it is normal for anyone with professional employment, or who holds a professional license, to worry about losing their job or their occupational license because of a DUI, such an outcome is highly unlikely, especially in 1st offense cases. In the real world, this is a fear that almost never plays out. We saw that, contrary to how they’re often perceived, licensing bodies are not angry, punitive agencies just waiting to pounce and revoke licenses for things like DUI convictions.

mmmInstead, as I tried to make clear, beyond having rather strict reporting requirements, the big risk for anyone with a professional license is that the licensing agency will require him or her to be “evaluated” to determine if they have any kind of substance abuse problem, and then required to complete any treatment deemed necessary as a result of that evaluation. As we’ll see in the coming paragraphs, the problem is that this takes place in an environment that, instead of being any kind of level playing field, is tilted far for toward the “better safe than sorry” side of things.

Even so, it goes without saying that a person is better off being able to keep his or her license, but also be required to complete any kind of treatment to do that, rather than simply having it taken away. The reality, however, is that (especially for medical professionals), we’re not talking about a few months of seeing a counselor once a week; the kinds of remedial measures required can be extremely demanding, and often include, in addition to anything the court orders, several AA or NA meetings per week, individual and group counseling, and regular breath and/or urine testing.

If you are facing a DUI charge and have any kind of professional employment, or hold a professional license, your worries go beyond just the potential legal consequences from the court. Unfortunately, a lot of legal marketing is fear-based, and tries to exploit the correlation between how much someone has to lose and how frightened they are when dealing with a drunk driving charge. Instead of doing that, I want to make clear, in this 2-part article, that for most people, including doctors, lawyers, teachers, and most other professionals, a single DUI will almost certainly NOT cost you your job or license.

mmmmm-300x256My team and I have, quite literally, handled thousands of DUI cases. Short of a professional lion-tamer, I can’t think of a profession we haven’t represented. We’ve taken care of DUI charges (including 2nd offense cases) for more medical and other professionals than I could count, and absolutely none of them have lost their licenses, or their jobs. In almost every case, with some skillful planning that accounts for the legal, employment and licensure implications of an OWI charge, everything can be worked out just fine.

That said, I am not aware of a single exception to the requirement that anyone convicted of a DUI must report it to his or her professional licensing body within a certain number of days. Separately, some people are required, under the terms of their employment, to report a DUI to their employer, but most are not. While employment terms are mostly contractual, and can require a person to notify his or her employer of an arrest, or pending charge, the reporting requirement for professional license holders is strictly rule-based, and, generally speaking, only kicks in after there has been a formal conviction.