Articles Posted in DUI 2nd Offense

One of the biggest marketing lines for any lawyer who handles DUI (and other criminal) cases is “avoid jail.” Going to jail is everyone’s worst fear, and it seems like a huge mistake for a lawyer to fail to address it. I talk about it, although I also go out of my way, both on my website and in many of my DUI articles on this blog, to make clear that jail is NOT on the menu for just about anyone facing a 1st offense DUI, and even for many people who have had prior drinking and driving convictions. In this article, I want to examine how the fear of jail and the desire to stay out of it can actually skew a person’s thinking enough to lead him or her into making a rash decision when hiring a lawyer. The first and most important part of all this is to remember that, if you’re facing a 1st offense drunk driving charge, you are almost certainly NOT going to jail anyway, so paying to stay out of jail is as much a waste of money as is an insurance policy for a global nuclear apocalypse.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/11/55783d0a71f00.image_-207x300.jpgAlthough not for the exact same reasons, it’s also a bad idea to run headlong into some lawyer’s office and hand over your money in a 2nd offense DUI case, solely based on the idea of avoiding jail. First, in many of these cases, you’re not going to jail anyway, and second, in a few courts, you’re going to get locked up for a few days, no matter what. The key distinction here is that a skilled and especially tactful lawyer may be able to keep you out of jail in those cases where it does exist as a real possibility. In other words, in those courts where you’re not going to go, you’re not going to go, while in those courts where a few days is a certainty, you’re going to go no matter who you hire as a lawyer. Anyone who tells you differently is either outright lying or woefully inexperienced. No lawyer with the sophistication to carefully finesse the client through a case where jail is a possibility (as opposed to being either a certainty or a complete non-issue) will be heard barking “avoid jail!” louder than the next guy. And as much the right kind of lawyer will be ever so diplomatic in this regard, neither will he or she be hawking their services to those most likely to be taken in by the “stay out of jail!” crowd. People who know better tend to be drawn to people who know better. Whatever else, you won’t see Jaguar trying to appeal to buyers in the market for a Kia.

Our first lesson here is significant – the idea that you’re either not going to jail, or a short stint is pretty much unavoidable – and that efforts focused upon jail are only useful where it exists as a very real (and avoidable) possibility. Of course, even where jail is pretty much in the bag because a person has multiple DUI convictions, it needs to be minimized as much as possible. However, there is way more to this. When facing a DUI charge, other consequences, like what will happen to your driver’s license, are always a concern (because something will happen to it), as are the ramifications to your criminal record and your driving record, not to mention the kind of probation and other penalties you will face. Would you rather stay out of jail and simply pay fines and costs and be done with the whole thing, or would you prefer to stay out of jail and be put on reporting probation for 2 years, required to complete heavy-duty counseling, attend AA meetings 5 days a week, and show up for breath or urine testing 3 times per week on top of all that?

In my role as a Michigan DUI lawyer, I handle a lot of 2nd offense drinking and driving cases. On my website, 1st offenses, 2nd offenses, and 3rd (felony) offenses are examined in a more overview fashion, while on this blog, I have covered each of the OWI charges in rather painstaking detail within the DUI section. In this article, I want to circle back to 2nd offenses and look at how 2 things, in particular – your prior record and the location of the charge – can affect what happens to you. In many of my prior articles, I’ve made clear that in just about every 1st offense DUI case, you’re not going to jail. Things are different, however, in 2nd offense DUI cases, where jail is a very real possibility, although it’s seldom a certainty. In the real world, there are some courts that rarely, if ever send 2nd offenders to jail, a few that usually (or even always) do, and then there are the rest, in the middle, that may or may not play the jail card, depending on the circumstances.

round-two-221x300You don’t have to be a legal scholar to realize that you prior record matters, but it matters more than just because you have a prior DUI. By law, you can only be charged with OWI 2nd offense if, and only if, you have a prior conviction for another alcohol-related traffic offense within 7 years of the date of your arrest for the current case. By definition, then, every 2nd offender has a “prior record.” There is a lot more to this, however, than just that one previous DUI case, although the circumstances of that prior offense can play a greater (or lesser) role in how things turn out now in the new case For example, a person still on probation for a High BAC 1st offense ,who then goes out and picks up another DUI (and whose BAC in the new case is also really high) is going to be in a tough spot. Contrast that situation with one where an older guy who picked up his 1st DUI, with a really low BAC (just over the legal limit) nearly 7 years ago, after he staying late at his daughter’s wedding reception to help clean up. Now, assume the guy’s new case arose from him being arrested (with another really low BAC) on his way home from a surprise retirement party thrown for him after his last day at work. These are very different situations.

Beyond your previous DUI, however, any other prior record you have can matter. It was not any due to grammatical sloppiness that I wrote “can matter,” because not every prior offense really does matter, at least within the context of a 2nd offense DUI. For the most part, prior alcohol or drug-related offenses are considered more significant, as are any offenses that usually involve alcohol or drugs, like domestic violence and disorderly person charges. Thus, if Tipsy Tina, recently arrested for a 2nd offense DUI (with a prior that occurred 5 years ago) was also convicted of retail fraud about 12 years ago, back when she was a teenager, that offense will probably not have any effect on her now. However, if Tina has a marijuana charge, and even if it was 15 years ago, it will matter, if only a little. Of course, if Tina was convicted of having open intoxicants in a motor vehicle just a few years back, you can be sure that offense will have a fairly significant effect on what happens in her new case. When it comes to how much, if at all any prior record matters in a 2nd offense case, the only accurate answer is the dreaded, classic lawyer response – it depends.

In part 1 of this article, we began looking at the benefits and growth of DUI sobriety courts in Michigan.  We examined how these programs can help someone facing a 2nd offense DUI, and even a 3rd offense DUI, not only to get sober, but also to NOT lose their driver’s license.  I pointed out that in my practice as a DUI and driver’s license restoration lawyer, I deal with alcohol problems on both sides of the equation; from those facing a drunk driving charge and struggling with their drinking, to those who have gotten sober and are ready to win back their driver’s license.  In addition, I bring a clinical background and education to my practice, which initially made me a bit skeptical of sobriety courts.  However, because of the many success stories I have seen, I have been won over and think everyone facing a 2nd or 3rd DUI should at least consider sobriety court, if it’s an option.  We ended the first installment with 1 of 3 real-life examples of sobriety court success from my own case files.  Let’s move on now to the others, and then look closer at the what sobriety court really is all about.

Happy-Joyous-Free-214x300My second example is a situation I have dealt with many times since, but this driver’s license restoration case, from a few years ago, connected me to one of my first sobriety court graduate clients.  In these cases, I am hired to get the person’s restricted sobriety court license changed to a “full” license.  Normally, exploring a person’s recovery and the depth of his or her commitment to sobriety is the “meat and potatoes” of a driver’s license restoration appeal.  When I walked into the room to meet this fellow (he had not been my DUI client, so he was a new to me), I was a bit skeptical of his sobriety credentials, considering that they were exclusively from his participation in the sobriety court program and that they were only a few years old, at that.  Boy, was I in for a surprise.  This guy told a story about having been dragged kicking and screaming into sobriety court, figuring he could live for a year or a year and a half without a drink and somehow get through it.  Cloaked in denial and filled with resistance, the light switch flipped for him early on in the program and he just had an epiphany that he could and would never drink again.  He said that there were 2 sayings from the AA program that hit home with him: “I didn’t get in trouble every time I drank, but every time I got in trouble, I was drinking,” and “I was sick and tired of being sick and tired.”  Counseling helped him get honest with himself, and when he could no longer believe his own lies, he just knew that he had to put the plug in the jug and quit drinking for good.  But for him, like my other client, it was a lot more than just not drinking that changed his life; he got sober.  His whole life changed, and he was happy and upbeat and making money because he became a much better version of himself.  He ditched his anger and resentments and if you met him, you’d have seen and felt just how magnetic a person he was (and still is).  He too, credited sobriety court for helping him break through his denial and achieve real sobriety.  The most obvious thing about the guy was that he was a happy, positive and radiant person.

The third example comes from another DUI client of mine who I got into a sobriety court.  In this case, the court where his 2nd DUI was pending had (and still has)  a sobriety court program.  This client is amongst the very nicest of people you could ever meet, with a flair for the artistic and dramatic that makes him fun to just be around.  Although he acknowledged early on that drinking had become a problem for him, and he wanted the help from sobriety court, he wasn’t quite ready, early on, to quit drinking for good.  In other words, he struggled a bit.  It happens.  This is what people mean when they say that relapse is part of recovery.  Fortunately, my client just happened to wind up in an awesome sobriety court program, and the Judge didn’t give up on him.  Just like everybody else, the decision to finally stop drinking for good – the one that “stuck” and really marked the start of his sobriety – came as the all-too-cliched, but also very real “light bulb” moment.  Part of his sobriety court program was to see a therapist, and at first, he didn’t much like the guy because the therapist wasn’t buying any of my client’s BS and excuses for drinking.  As my client explained it, the therapist challenged him in a way that had him thinking even after the sessions ended, and it was that “food for thought” that eventually tipped the scales in his mind in favor of NOT drinking anymore.  Although the decision to quit drinking was ultimately my client’s, he credited the dialogue with his therapist for helping him get to that point.  On a side note, this client did not fit in well with the AA program, and to his Judge’s credit, he was allowed to use alternative community supports instead.  At any rate, this dynamic fellow really came into his own and blossomed in his sobriety.  More important than the external changes, however, was the fact that, internally, he was happy.  He found the joy in life again, and it all came about because of his participation in the sobriety court program.

The landscape of 2nd offense DUI cases is changing rapidly in Michigan due to the growth of sobriety courts.  The sobriety court law was enacted several years ago as a test, or pilot project, but it really took off, and now, more and more courts are getting in on the act.  At first, I was a bit cautious toward the whole idea, in part because of my clinical training in addiction studies.  In addition, some of that reticence was due to the fact that my practice is kind of split between handling DUI cases and driver’s license restoration appeals for people whose licenses have been revoked for multiple DUI convictions (in that sense, you can think of my practice like a “Q-tip,” with my role as a DUI lawyer on the one end,  a license restoration lawyer on the other, and alcohol as the stick that holds them both), so I deal with real sobriety even single day.  Early on, the most noticeable impact of sobriety courts was a large spike in ignition interlock violation cases before the Michigan Secretary of State.  And if you looked at just that data alone, you’d have gotten a limited, mostly negative, and completely inaccurate view of sobriety courts.  As it turns out, the sobriety court program has done a lot of good, and we are really only at the starting gate with respect to its larger potential.  In this 2-part article, I want to outline some reasons why anyone facing a 2nd, or even 3rd offense DUI should consider the sobriety court option, and look at bit at what’s involved.

meeskonnakoolitus-enesemotiveerimise-kunstSobriety court is a functional example of the “carrot and the stick” approach because the programs provide a huge incentive to the participant by way of overriding the automatic revocation of his or her driver’s license (meaning a person can get a restricted license where it would otherwise be impossible), while balancing that with zero tolerance for any further drinking, backed up by all kinds of testing to insure compliance.  The court system, for its part, automatically (and by operation of law) concludes that any person with a  2nd (or 3rd) offense DUI has a drinking problem.  For all the arguments to the contrary the reader may have, it is a given within the court system that if you’ve picked up a 2nd or subsequent offense, your drinking is a problem.  Period.  We have to begin from there.  The goal of sobriety court is to provide intensive rehabilitative services and help a person overcome that problem.  Obviously, this won’t work at all for someone who feels that his or her drinking is not troublesome.  Anyone convicted of a 2nd DUI offense within 7 years will automatically have his or her driver’s license revoked and, realistically speaking, won’t be able to legally drive again for at least the better part of 3 years.  It’s worse for someone convicted of a 3rd DUI within 10 years, because the mandatory revocation there is at least 5 years, and this applies no matter what the final conviction offense (like even if a person gets a great lawyer for a 3rd offense felony DUI charge and has it negotiated down to a 2nd offense misdemeanor, something I do all the time).  In a stunning exception to these set-in-stone license sanctions, a sobriety court Judge has the power to override a revocation after a 45 day suspension and grant a restricted license to anyone in the program.

This is huge, and coming from me, that means a lot.  Since about 1/2 of my practice is driver’s license restoration cases, having any 2nd or 3rd offender get a sobriety court license means one less potential license appeal for me.  If I was entirely self-interested, my analysis would end there.  But the reality is that if you can save your license and avoid having to hire me (or someone like me) just to win a restricted license years down the road, you’d have to be crazy to at least not think about it.  From my point of view, this is a no-brainer.  The problem, however, and where I still pause, is that I am not in favor of looking at sobriety court ONLY as a means to keep your driver’s license.  Part of my DNA as a lawyer and a person is the strong clinical focus that I bring to my cases.  Beyond my post-graduate matriculation in addiction studies, the entire focus of driver’s license restoration cases is on sobriety and recovery, topics that have been central to everything I do for more than 25 years.  Nor is this just some academic or professional interest, either, as I have had close and direct personal interaction with addiction issues and those struggling with them.  As a result, I want my clients to get help, and I want to assist as much as I can in that, but I have a strong aversion to just “gaming” the system and wasting sobriety court resources on someone whose only interest is in his or her driver’s license.

In my role as a Michigan DUI lawyer, examining the evidence is a critical step in every drunk driving (OWI) case I handle.  Can you imagine a doctor or dentist treating a patient without first conducting a thorough examination?  It’s essentially the same thing for a lawyer to properly (emphasis on proper) represent someone facing a DUI charge.  As much as any doctor, dentist or lawyer will want to know what the problem is, he or she will also want to know what it is not.  In the context of a DUI arrest, a driver’s contact with the police and what follows, including the stop (was the car, in fact, swerving?  Did it cross the yellow line?  Did the driver commit some other traffic infraction?), the field sobriety tests, and the arrest itself aren’t just important to the case, they essentially make up the case.  As a result, it is standard practice in my office to obtain and review the video evidence in almost every drinking and driving case that crosses my desk.  In this short article, I want to make clear why it’s always prudent to obtain and review the police car dash-cam video.

Copper-2As a general rule, there is never a good reason to NOT get a copy of the in-car police video.  Many “cut rate” legal operations and court appointed lawyers skip this step, principally because they don’t have enough time to do it, especially for what they’re (often not) paid.  Bargain, flat-fee law offices make their money on the quick turnover of cases, and court appointed lawyers are expected to wrap up a case in just a few minutes after meeting their assigned client in court.  When you hire a good lawyer, however, you should be paying for him or her to do everything necessary to insure the best outcome in your case without wasting time or money on things that won’t.  Reviewing the dash cam video is always the smart thing to do.  Moreover, even in those cases (the majority of them, really) where the dash-cam video does not reveal some catastrophic police mistake that will get the case tossed out of court, or otherwise demonstrate the the driver was not over the legal limit, just knowing that to be the case provides clarity and removes any doubt as to the best way to proceed.

Sometimes the dash-cam video can lay a golden egg, and be used as the basis to challenge the evidence.  Whatever else, DUI cases don’t dismiss themselves, and one thing is for sure: you will never find a reason for a case to be “knocked out” without looking for it, first.  The mindset with which the evidence is approached has a lot to do with this.  If you watched almost any DUI dash-cam video with the instruction to find confirmation or evidence that the subject was driving drunk, you’d probably find some.  Because you were focused on confirming something, you would almost automatically overlook anything that indicated the contrary.  This is known as “conformation bias.”  As a DUI lawyer, I have to assume a contrary conformation bias perspective, namely, that my client did NOT do anything wrong, or anything too wrong, and that if his or her performance on any of the field sobriety tests was something less than optimal, there is a good and rational explanation for it.  Even approaching these videos with an “open mind” isn’t good enough; they have to be watched with an eye to finding those things that help the client.

A rather large chunk of my DUI practice involves handling 2nd offense cases.  Although I have written about this subject in the past, a meeting with a new client last week reaffirmed the reason why I seem to get a disproportionate number of 2nd offenders..  To put this in perspective, you must understand that the overwhelming majority of people who go through a 1st offense drunk driving case never get in trouble again and are truly “one and done’ customers.  This means, of course, that of 2nd and 3rd offense DUI cases account for a rather small percentage of the overall number of DUI cases that wind through the court system each year.  That stands in contrast to my practice, where I represent a much higher percentage, overall, of 2nd offenders.  Although I certainly handle a lot of 3rd offense (felony) DUI cases, as well, the focus of this article will be on why I get so many 2nd time DUI offenders.  I’ll leave to my other writings to explain the nuances and unique aspects of 2nd offense drunk driving cases.

1d3b2c30f590837e8396766eea0f0f95The fact that I handle so many 2nd offense drinking and driving charges is, in large part, a compliment to me and my efforts on this blog.  The story of the 2nd offense client from last week explains this rather well.  As we spoke about his prior DUI case, it was natural for me to ask the name of the lawyer who handled it.  My client hung his head in defeat and sort of laughed out a response, saying, before he revealed the name, “I know, I got taken.”  He went on to relate how he thought that blowing way over $10,000 in legal fees made it seem like he was really going to beat the case.  “The guy promised me everything,” he said, shaking his head.  “I wish I would have found you before.”  He then told me that he had read lots of my blog articles, and liked the way I write (I do my best to write conversationally, so that when I meet someone in person, the “voice” in my articles sound just like me when I talk).  He said he appreciated the honesty in what I say, and my use of “real world” examples to make things as clear as possible.  I thanked him, and then joked that, given how much the “promise everything” operations charge, maybe I should change the way I do things.

As funny as that may be, it really does cut to the heart of how I do things, and what differentiates me from so many of the other websites out there.  First off, I hate it when lawyers try and scare people.  This is something that makes me shake my head, because I run the other way if someone tries to use any kind of scare tactic as a “sales tactic” on me.  By the same token, I have never seen an exception to the warning that, “If it sounds too good to be true, it probably is.”  And here, the actual statistics tell a very clear and consistent story; year after year, of all the alcohol and DUI-related arrests in Michigan, less than one-quarter of one percent go to trail and win.  In 2015, for example, out of 43,553 such arrests in Michigan a grand total of 62 were found “not guilty” after trial.  That’s .14% (point one four percent).  For everything you’ll read about beating a DUI case, you won’t see any of those lawyers linking to the actual numbers.  It’s kind of like those self-study real-estate programs where you’re promised that you’ll be taught how to buy great properties with no money down and get rich.  In the real world, that s**t doesn’t happen.

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….
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In my day-to-day role as a Michigan DUI lawyer, one of the most common questions I am asked is something like, “What’s going to happen to my driver’s license?” This is often followed by an explanation of how the person needs a license to drive to work, or a question about what can be done so he or she can have a license to at least get to work. In this article, I want to answer those questions; those answers are, in fact, clear and simple, but sometimes the consequences are hard to accept. The whole point of this article is to make crystal clear what will happen to your driver’s license in a drunk driving case. The rules governing what happens are fixed and inflexible, and as frustrating as that can be, it also simplifies things quite a bit.

600x400-Kevins2.jpgBefore I explain how a Michigan OWI charge affects a driver’s license, I need to be a bit undiplomatic and stop a certain line of questions right in its tracks. People will often ask things like, “How do they expect me to keep my job,” or “How am I supposed to get my kids to school.” To be clear, if not cold, under the law, that’s your problem. The rules are the rules, and if you can’t drive to work and that means you’ll lose your job, you need to understand that there is no “they,” and therefore no person, mechanism or system that cares about, understands or who can otherwise do anything about your situation. There is nobody who “expects” you to do anything. Instead, there is a set of rules that applies when you get a DUI, and it applies no matter who you are, how much money you have (or don’t) and whatever your personal situation. If you first accept this principle that these rules apply without exception, then it becomes much easier to understand what will happen to your license.

A common misconception, when someone facing a drinking and driving charge asks about his or her license, is the idea that the Judge, or the enigmatic and undefined “they,” so often the target of the never ending “what about” questions, has anything to do with what happens. Let me make this very clear: What happens to your license is a matter of written law, and no one, including the Governor of the State of Michigan or the President of the United States, can alter, change, lengthen, shorten or otherwise modify any part of it. There is 100% absolutely NO possibility of going to court to “get” any kind of relief or change any part of what the rules require to happen, and there isn’t even a procedure to do so anyway. In other words, trying to go to court to change what happens to your license is like trying to file a case in court to change the weather; it’s not an option. With that established, let’s move on to what does, in fact, happen to your license…
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This will be an article about role of relapse in a Michigan DUI case. In the previous article, we focused on how relapse can be used as an asset in a driver’s license restoration case. I noted that in my role as a Detroit area (meaning Macomb, Oakland and Wayne County) DUI lawyer, alcohol, drinking (as in normal drinking), troublesome drinking and, in the case of my driver’s license restoration practice, recovery from drinking problems, are the focus of just about everything I do, every single day. Given that OWI (Operating While Intoxicated) cases are always about drinking, and given the court system’s natural bias toward finding and over-diagnosing drinking problem in those cases, it became obvious, that to really help my clients, I needed to advance my understanding of the whole clinical world of addiction and recovery. To do that, I went back to the university classroom and completed the coursework in a post-graduate program of addiction studies. This way, when I’m next to my client, I stand as the foremost authority in the courtroom on alcohol-related things like diagnosis, relapse and recovery. In a DUI case, a relapse usually brings both good news and bad news. The bad news, of course, is the DUI case itself.

craving_alcohol.jpgThe good news is that if we can properly communicate the entirety of the situation, we can assure the court that you don’t pose a worrisome risk of re-offending, and therefore don’t need to be pounded silly with all kinds of punishment. Granted, this sounds easier than it is (otherwise every lawyer would just say what I said and everything would be just fine), and that’s why I thought it worthwhile to invest years of my life and tens of thousands of dollars of my money into a formal program of addiction studies. Much of this is relevant to 2nd offense and 3rd offense DUI charges, and is not as broadly applicable to 1st offense drunk driving cases in general, but then again, broad generalities won’t help anyone who has relapsed only to wind up facing another drinking and driving charge.

As I pointed out in the prior, license reinstatement article, the term “relapse” is often used rather imprecisely. If a person has quit drinking and then engages in a single episode of drinking, that’s called a “lapse.” To continue drinking after that first episode (an episode can be anything from a single sip to a single drink to a whole, but single day of drinking) is to “re-lapse.” Thus, a relapse is a return to more than one episode of drinking. I’ve had DUI cases that have arisen the very first time my client picked up again, and I’ve had some that marked the tail end of a long, painful relapse, as well as just about everything in-between. If you are facing a DUI after having quit drinking, it may look bad at first glance, but we can – we must – and, if I’m your lawyer – we will use your prior period of abstinence to help your case. It goes without saying, though, that we’ll have to show how the lapse or relapse not only got you to stop drinking – again – but also how and why this time, it’s for good. So how do we do that?
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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.

Whiskey 1.2.jpgBefore 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…
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