Articles Posted in DUI 1st Offense

Everyone facing a 1st offense DUI charge certainly intends for it to be their last. There has probably never been anyone in the history of the world who has thought differently. However, and as the old saying goes, the road to Hell is paved with good intentions. The reader can be sure that every person who has ever had a 2nd offense or 3rd offense DUI had sworn, each time prior, that they would never get caught driving drunk again. That simple promise may work for some people, but not for everyone. Before anyone blows this off, let me explain…

In our roles as Michigan DUI lawyers, we actively try to help our clients to make sure that their first DUI is, in fact, their last. This involves more than just trying to scare someone by rattling off how much worse a 2nd offense is over a 1st offense DUI charge. It’s understandable that everyone’s first concerns are things like staying out of jail, protecting their record, and not losing the ability to drive. Fortunately, that’s usually easy for us to accomplish in 1st offense cases.

Many people are so relieved when they avoid those things that they have little interest in thinking about any kind of “next time,” because they’re convinced there won’t be a next time. To be sure, for the vast majority of people, a 1st offense DUI charge WILL be their last. However, anytime a person finds him or herself in criminal legal trouble, it’s important to examine the whole situation honestly, and with an open mind, to see how he or she got there.

DUI driver’s license penalties are always a concern for anyone facing a 1st offense drunk driving charge. One of the most common questions my team and I get asked is “what’s going to happen to my license?” That dovetails with an equally common statement people make when they say “I need to be able to drive for [work, school, kid’s school, medial appointments, etc.]. No matter what anyone may need, the DUI driver’s license penalties are set in stone. In this article, we’re going to look at what they are, and the ways we can navigate around them.

Let’s begin with the “set in stone” part of this. Under Michigan law, DUI driver’s license penalties are automatic and certain, upon conviction. “Certain,” in the sense we’re using it here, means 2 things: First, that they are unavoidable, and, second, that they are absolute. We’ll go through the different penalties for the various levels of 1st offense DUI’s later. For now, however, the reader simply needs to understand that these penalties must be imposed by the Michigan Secretary of State, and they cannot be modified in any way.

This is something that can be hard to fully comprehend. Not to make light of it, but I’d be rich if I had a nickel for every time someone was told the penalties can’t be modified, but then asked “is there any way to…?” In that same way, people often inquire about the possibility of modifying the DUI driver’s license penalties by asking “but what about…?” As we examine the various license penalties, the reader must understand that they are what they are. No matter what kind of hardship they may cause someone, the law specifically forbids any modification to them.

In our roles as Michigan DUI lawyers, my team and I handle a lot of High BAC (super drunk) cases. Chances are, anyone reading this article has either been arrested for, or is looking for information on behalf of someone who was cited for Operating While Intoxicated (OWI) with a BAC of .17 or greater. Most people only learn about this enhanced DUI charge when they have to deal with it. In this article, we’re going to look at what High BAC offenses are all about, and also examine why they’re usually not as bad as they often seem at first.

Even if the evidence in the evidence is strong in a High BAC (super drunk) case, my team and I can often negotiate a plea bargain down to a lesser offense for our client. This will allow a him or her to avoid a conviction and potential penalties for the more serious offense by taking a deal and pleading guilty to something less severe. Of course, the first order of business in every DUI case is to try and find a way out of the matter completely, but when that can’t happen (and to be fair, such outcomes are far more the exception, rather than the rule), a plea bargain that avoids a super drunk conviction is always a good thing.

Although the full history of Michigan’s DUI laws is long, and complicated, the short version is that ever since 2003, the bodily alcohol content (BAC) limit in Michigan for drunk driving has been .08 (it had previously been .10). The super drunk (High BAC) law was enacted later, in 2010. The idea was to provide additional and more significant penalties, as well as increased “protections” to the public. This was to take the form of license restrictions in those cases in which a person get caught driving with a bodily alcohol content of more than twice the legal limit.

As Michigan DUI lawyers, my team and I answer a lot of questions how to get out of a DUI charge. It’s perfectly normal that just about every person arrested for drunk driving hopes there’s some way to get the whole matter dismissed. Indeed, would be abnormal to NOT think that way. I have addressed the notion of getting out of a DUI on both my site, and within other articles on this blog. In this piece, however, I want to shift the focus from getting out of a DUI to getting through it.

The hard, statistical truth is that in Michigan, more than 9 out of 10 people arrested for drunk driving are NOT going to have their cases thrown out of court, or otherwise dismissed. Therefore, since more than 90% of all the people who do get arrested for a DUI will have to go through the court system, it only makes sense to focus on how to do that in such a way as to wind up with the least amount of negative consequences and penalties possible. I often say this, but it’s an absolute truth that is worth repeating: Success in a DUI case is best measured by what does NOT happen to you.

This is important, because “success” goes well beyond merely staying out of jail. Avoiding jail is always the first priority in every DUI case, but not getting locked up is only the beginning. With very few exceptions, anyone facing a 1st offense DUI isn’t really looking at jail in the first place, so not being subjected to something that wasn’t going to happen anyway isn’t any kind of “success.” Instead, a person needs to avoid all the other things that can (and will be) be thrown at him or her instead of incarceration.

As Michigan DUI lawyers, we completely understand the stress felt by people who suddenly find themselves facing a drunk driving charge. Nobody plans to get arrested for a DUI, so the whole situation always comes as a rather unpleasant surprise to everyone who does. Unfortunately, one thing my team and I also encounter is that because they feel so overwhelmed, many people will make rash decisions too soon (especially when it comes to hiring a lawyer), rather than taking the time to go about the whole DUI thing the right way.

Of course, some people do try to be “logical” about how to best handle their DUI, and will take the time to do some research before jumping into anything. Others, however, can’t stop fretting over their situation, and act more reflexively. These rash actions can include deciding which lawyer to hire, but may also involve things like a person deciding to enroll in some kind of alcohol counseling, or starting to attend AA. If there’s one key lesson to be taken from this article, it’s that everyone facing a DUI should take their time and think things through before making any important decisions.

It’s natural that some people may feel a need to take action quickly following a DUI arrest, but that still doesn’t make it a good idea. The first thing a person should do after getting home and settling in a bit is to look for real information. To be clear, “real information” does NOT mean websites that focus on the all the scary-sounding risks and potential penalties that are theoretically possible in a DUI case. That’s fear-based marketing, and it should be ignored completely.

In part 1 of this article, we began discussing how to make a 1st offense DUI a true “one and done.” As Michigan DUI lawyers, my team and I want to do everything we can to make sure that our clients never wind up in the same situation again. This, of course, is the court system’s goal, as well. As lawyers fulfilling our role as “Attorneys and Counselors at Law,” we have the advantage of more personal interaction with each person. Instead of having limited time with them, like the courts, we can have a heart-to-heart talk with each client to help him or her do a bit of self-analysis.

There’s a lot more to all of this than just talk, though. It’s really easy for a lawyer or law firm to use slogans like “caring” and “personal service,” but in practice, we don’t just talk the talk, we walk the walk (or, in this case, walk the talk). Because the foundation of our practice is DUI and driver’s license restoration cases, our clients’ relationships to alcohol is at the center of everything we do. For example, the goal of a driver’s license restoration case is to win back the license for someone who has lost it because of multiple DUI’s, and that requires proving that he or she is genuinely sober.

Accordingly, our firm is a recovery-oriented practice. We have to be. Although the overwhelming majority of our 1st offense DUI clients do not have a problem with alcohol, we want to make sure they understand how serious things become in a 2nd offense case, and that they never wind up arrested for drunk driving again. This can be challenging, because most of our clients aren’t reckless people, or the kind who otherwise party so much that getting that a 1st offense DUI seemed seemed likely in the first place, rather than something completely out-of-character.

As Michigan DUI lawyers, we genuinely understand the emotional toil that facing a DUI can take on a person. Over the span of 30 years, and throughout thousands of cases, I have listened to the concerns and worries people have as they go through the DUI process. None of our clients ever imagined themselves in this situation, and many of them are a bit freaked out about having been arrested for drunk driving, and worried even more about having to go to court to deal with a criminal charge that carries a potential jail sentence.

It’s important to begin by pointing out that jail is highly unlikely in a 1st offense DUI case, so if that’s your big worry, then take a deep breath right now and relax. Consequently, it’s really a waste of time to go looking for some lawyer who positions him or her self to “save” you from getting locked up when that’s not really on the menu in the first place. Moreover, any lawyer who would knowingly let a person fear incarceration when it’s so improbable is either dangerously inexperienced, or dangerously dishonest. Either way, that kind of lawyer should be avoided like the plague.

In a somewhat recent, 4-part article, I explored the relevance of a phrase often used by our senior assistant, that a DUI is about your drinking, not your driving, and examined why, in drunk driving cases, the courts are more concerned about a person’s relationship to alcohol than anything else. I wanted to make clear there that the court’s goal is to ensure that anyone who gets a 1st DUI never gets another. In this piece, I want to change the perspective to our point of view, as DUI attorneys, and share some insights to help anyone going through a DUI make it a true “one and done.”

As Michigan DUI lawyers, one of the most common questions we’re asked by someone facing a 1st offense DUI is something like, “What’s going to happen to my license?” In this article, I want to answer that clearly and simply. The good news  is that although a conviction for any 1st DUI offense (OWI, High BAC, or Impaired Driving) will result in some kind of restriction to a person’s ability to drive, none of those charges will result in a permanent loss of license.

To begin, we need to define what constitutes a “1st offense” DUI charge. In Michigan, an alcohol-related driving offense is considered a 1st offense if the date of the arrest for it occurs more than 7 years after the date of any previous DUI or alcohol-related driving conviction, including what’s know as a “Zero Tolerance” (Minor with BAC of .02 to .07) offense. The term “alcohol-related driving offense” means any “DUI-like” charge that involves driving while impaired, intoxicated, or, in the case of Zero Tolerance, having a BAC above .02.

Although it can be rather easy to get tangled up in dates, the legal definition of a 1st offense is actually quite clear: An OWI offense is considered a 1st offense if the person was not convicted of a prior alcohol-related traffic offense within 7 years from the date of his or her arrest for the current offense. The measure is NOT from arrest to arrest, nor from conviction to conviction. Instead, the clock starts running from the date of the conviction for the prior offense, and stops at the date of arrest (not conviction) for the next offense.

In part 1 of this article, we began an overview of breath test refusals in DUI cases, and the larger subject of chemical tests as well as Michigan’s Implied Consent law. We saw how there are really 2 kinds of tests: a preliminary breath test (PBT) which is administered at the side of the road before an OWI arrest, and then a formal chemical test that comes after arrest. Although a “chemical test” can include either blood, breath or urine, in DUI cases, it’s limited to breath and blood, as urinalysis cannot be used to calculate person’s bodily alcohol content (BAC).

I explained that the refusal to submit to a PBT is only a civil infraction, and is very different from the refusal to submit to a chemical test as contemplated by Michigan’s Implied Consent law. If a person refuses a PBT, he or she only faces a fine and a penalty of 6 points on his or her driving record. In the real world, my team and I almost always negotiate the dismissal of a PBT charge as part of the resolution of an OWI charge. Although a person is legally “obligated” to take a PBT test, the failure to do so does NOT carry any potential suspension of his or her driver’s license.

In contrast, we then saw that refusing a breath or blood (i.e., chemical) test after arrest will automatically result in a 1 year suspension of a person’s driver’s license, unless a he or she timely requests and wins a hearing to challenge the refusal for 1 of the 4 specified legal issues before a Michigan Secretary of State hearing officer. We then looked at the how those issues are defined in the law. In this second half, we’ll dig a bet deeper to see what those legal issues really mean and how a person can still get his or her license back even after an Implied Consent refusal.

As Michigan DUI lawyers, we have to deal with breath test refusal issues almost everyday. We field a lot of questions about breath and blood tests, Implied Consent license suspensions, and everything related to a person having refused to provide breath sample when arrested for a DUI. This 2-part article will provide an overview of Michigan’s Implied Consent law, rather than any kind of granular analysis of the subject. Here, our focus will be wide, and cover the broader implications chemical testing and the law in Michigan DUI cases.

At its most basic, Michigan law requires any driver arrested for an alcohol-related traffic offense to submit to a chemical test when requested to do so by a law enforcement officer. Technically, a “chemical test” can be conducted on either a breath, blood or urine sample. In DUI cases, urine tests are largely useless, so they’re never really an issue. Although the officer (or trooper or deputy) can choose to request either a breath or blood sample from someone arrested for a DUI, most (but not all) of the time, a breath test is requested first, instead of a blood sample.

Michigan’s testing law is called “implied consent” because, at the time every person obtains a Michigan driver’s license, it is expressly noted that, by accepting that license, he or she agrees to provide a chemical test sample if arrested for an alcohol related traffic offense. In other words, he or she agrees, in advance, and as a condition of the issuance of that license, to provide a breath, blood or urine sample upon arrest for a substance-abuse related driving offense. This means that a person’s consent to such a test is implied (as in pre-given), just like his or her consent to being searched is implied if he or she goes through airport security.