Articles Posted in DUI 2nd Offense

In part 1 of this article, we began looking at the factors involved in answering a question I get all the time in DUI cases – “should I start going to counseling or AA?” In terms of how we use a person’s involvement in any such treatment (if at all) within the framework of a DUI case, the best answer I can provide is that, “it depends.” Every case is different, as is every Judge. That said, there are also certain generalities to DUI cases that cannot be overlooked.

AA-books-and-round-table-300x200One that is very important and, indeed, pervasive, is what I call the “alcohol bias.” Courts have been getting tougher on DUI cases year after year ever since I became a licensed attorney nearly 30 years ago, and that’s only going to continue. Within a few weeks of me starting this article, the husband of a local Judge was killed by a drunk driver, and 16 days later, an entire Michigan family of 5 people were killed on I-75 in Kentucky by another drunk driver. Those are just some of the most recent local DUI-related things to take place and receive lots of negative attention within less than a month of when this piece was written.

In late December of 2018, Utah became the first state in the country to drop the legal limit for DUI to .05, something I predict will be the start of a trend.

As a Michigan DUI lawyer, one of the more common questions I am asked by a potential or new client is whether or not they should get into counseling and/or go to AA. In this article, I want to address that concern. There is a lot more to this than a simple “yes” or “no” answer, so we’ll address the various considerations involved over 2 installments.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2019/01/Talker-2.--300x196.jpgMy analysis is influenced by a lot more than just my being a DUI attorney, because I also bring a strong clinical perspective to this, as well, having completed a post-graduate program of addiction studies and having worked daily, for almost 3 decades now, with both addicted and recovering populations. I believe that my job is to help my clients in every way possible, not just in the purely legal sense. Of course, it would be easier for me to just charge a fee and just focus on the legal stuff, but my conscience always reminds me to treat others as I would wish to be treated, so I live and work by that golden rule.

Let’s begin, then, by refining the scope of our inquiry a bit. After a drunk driving arrest, when someone asks me, as a lawyer, about going to AA or counseling, what they really want to know is if doing so will “help” their case and if doing so will look good. We’ll examine that aspect of things later, but I think the first question should really be whether or not the person him or herself thinks they might need a little help.

In part 1 of this article, we saw that when a person quits drinking and then goes back to it, without calling that a relapse, it shows that he or she doesn’t really understand sobriety. This, of course, will kill any chance of winning a driver’s license restoration appeal, but it also can create problems for a pending drunk driving charge. In 2nd and 3rd offense DUI cases the analysis of relapse is somewhat different than in a 1st offense case, but the importance of how a person views his or her relationship to alcohol – both past and present – cannot be overstated in any drunk driving, license appeal, or other case where there is an inquiry about that relationship.

IMG_7100-copy-300x209In each and every 2nd or 3rd offense DUI case, the whole world, and especially the court system, believes the person has a drinking problem. One of the chief aims of the legal process is to help a habitual offender (that’s the legal term in Michigan for anyone who gets up a 2nd or 3rd DUI) understand that however infrequently he or she may drink, whenever they do, it’s risky. The court’s goal in any 2nd or 3rd offense DUI is to get a person to stop drinking for good, if not for his or her own sake, then at least for the safety of the public.

The goal in any 1st offense DUI case is also to help anyone who has an alcohol problem. However, unlike in 2nd and 3rd offense cases, where a person begins with the presumption that he or she has such a problem, in 1st offense cases, the court relies upon the mandatory alcohol screening to see if a person does, in fact, have a drinking problem, or is otherwise at elevated risk for one to develop.

If someone picks up a drink after having abstained for any length of time and does not think of that as a “relapse,” then he or she probably doesn’t have a good understanding of what it really means to be sober. This is a problem for a driver’s license restoration appeal, and can complicate a Michigan DUI charge, as well. This will be a short, 2-part article (it was just a bit too long for one installment) examining the importance of how a person self-characterizes drinking again after having stopped for a while.

Success-are-stepping-2-300x180More than anything else, it shows that the person was never committed to abstinence as a component of sobriety. Only when a person genuinely accepts and understands that his or her relationship to alcohol has become troublesome does he or she also know that any drinking thereafter is a problem. That kind of insight changes everything.

When a person who hasn’t had a drink for a certain amount of time picks up again (even a single drink), but doesn’t consider it a relapse, or “slip,” it is safe to say that he or she was never really “sober “in the first place. In fact, it’s safe to say that he or she doesn’t even have a basic understanding of what real sobriety is all about. This kind of thinking stands as a complete roadblock to success in a driver’s license restoration case, and can turn a regular drunk driving case into a nightmare.

More than almost anything else, where a DUI case arises is the single most important factor in how things will work out. If we took the identical set of facts regarding an OWI arrest and charge and watched how that case would play out in several different courts, it would become obvious that location is the key variable. In this article, I want to restate the importance of the “where” factor in DUI cases here in the Metro-Detroit area of Oakland, Wayne and Macomb Counties.

Why-2-300x265The whole issue of location is easy to bring up, but quite a bit harder to explain, because it must be done diplomatically. Everybody knows that some courts are tougher than others, and that Judges can be all over the map in terms of being lenient or not. No lawyer, including me, wants to disparage any Judge, or in any way play “favorites.” Our job is to work with them, day-in and day-out. It’s a given that, in the privacy of a lawyer’s conference room, a client might hear that this Judge is a “teddy bear,” and that one is a “hard-a$$,” but not in an article like this.

By design, I limit my DUI practice to the Tri-County area (Wayne, Oakland and Macomb). My team and I are in multiple local district and circuit courts every single day. The breakdown of where we go is pretty evenly split amongst the the 3 counties. I’d honestly say the breakdown is something like 35% in Oakland, 33% in Macomb, and 32% in Wayne. We deal with the idiosyncrasies of the various local courts every single day, and have the experience of thousands of cases to know how they do things, what they have in common, and how each one is different from the others.

One of the most common offenses we handle through our office, as Michigan DUI lawyers, is an OWI 2nd offense. A charge is a “2nd offense” when the arrest for it is made within 7 years of the date of a previous conviction for a DUI. In other words, time isn’t measured from arrest to arrest, or conviction to conviction, but rather from the date of the conviction for the prior offense to the date of arrest for the current charge. In this article, I want to look at the similarity of how 2nd offense DUI cases are treated here, in the Tri-County (Oakland, Macomb or Wayne) area.

around-hereIn Metro-Detroit, 2nd offense drunk driving cases are not like 1st offense or 3rd offense charges. I mean this beyond the mere numbers 1st, 2nd, and 3rd. No matter how you cut it, 2nd offense cases are treated almost uniformly across the local region. Here’s what I mean: the way a 1st offense case is handled, and ultimately worked out, can be VERY different from court to court, so that a person facing his or her first DUI in Rochester or Troy will have a much different experience than another whose case is in Shelby Township, or New Baltimore. Those experiences, in turn will be different still from someone with a 1st offense case in Plymouth/Canton or Woodhaven. In 1st offense cases, location essentially rules.

And it rules in 3rd offense cases, as well, where it’s the particular county that matters most. Oakland, Macomb, and Wayne all have their own ways of doing things. Thus, a felony DUI in any one of them will proceed very differently than in either of the others. This is not to say anything like 2nd offense cases “are all the same,” but rather that the way they are approached by prosecutors and Judges is far more uniform than either 1st and 3rd offense cases. Therefore, as a general proposition, it’s fair to say that 2nd offense cases are often handled similarly, no matter where they’re brought, at least here, in the Greater-Detroit area. Unlike in 1st offense cases, the actual effect of state law is huge, and really overshadows everything that will happen to a person. Let me explain…

One of the most common questions I get as a Michigan DUI lawyer and driver’s license restoration attorney is if there is anything a person can do to get a restricted license after it gets revoked for a 2nd or 3rd (or subsequent) drunk driving conviction. Under Michigan law, a person’s license is revoked for a minimum of 1 year for 2 DUI’s within 7 years, and a minimum of 5 years if they’ve racked up 3 drunk driving convictions within 10 years. Although I usually go to great lengths to explain this, often several times, people almost always still ask, “is there some way for me to get a restricted license at least to go to work.” The answer, of course, is no.

194783f26f311100588f134509457090-300x300Almost without fail, the next thing I get asked is something like, “how am I supposed to keep my job?”, or “how do they expect me to support my family?” In this article, what I want to make clear is that the law not only “doesn’t care,” but it actually intends for this to hurt. In the grand scheme of things, the law is fashioned so that the hardship of not having a license is something that should have been considered before a person gets another DUI. One of the Michigan Secretary of State’s Administrative Hearing Section (AHS) hearing officers (these are the people who decide driver’s license restoration appeals) explains it, when people characterize their DUI record as “a mistake,” like this: “A mistake is when you date something using the last year, right after New Year. When you drove drunk, you committed a crime, and when you did it again, you became a habitual criminal.”

I fully understand that people don’t go out and intend to drive drunk, nor do they intend to endanger anyone when they do drive after having had too much to drink. For most people, a DUI is a genuine mistake in judgment, but, as that hearing officer points out, that mistake is also a crime. When a person gets a 2nd DUI, much less a 3rd, he or she is legally categorized as a habitual offender, and the law states that he or she is too great a risk to allow back on the road. The revocation of a person’s driver’s license is a safety measure for the public as much as it is a punishment for the driver. If it doesn’t hurt, then what good is it? In that sense, even though the written law has no mechanism to “feel” anything, and therefore cannot “care” whether something is good or bad, to the extent the people who wrote it thought about the effects of revoking a person’s license, you can be sure they wanted it to sting.

In part 1 of this article, we began to examine 2nd offense DUI cases in Oakland, Macomb and Wayne Counties. I made clear that the law presumes a 2nd offender has a drinking problem, and that the court system, based upon its daily experience, begins each case having already reached the same conclusion, as well. Michigan law also requires that any person convicted of a 2nd DUI within 7 years must be ordered to undergo counseling. The law doesn’t further specify that it should or must be counseling that’s a good fit, or that’s “right for you,” or anything like that. Many courts, in assembly-line fashion, simply jam everyone through the nearest local counseling operation that is only too happy to take on all the business it can get. This kind of “one-size-fits-all” approach may work for a few people, but it’s far from a recipe for success in any larger sense. Moreover, when you force somebody into any kind of counseling or treatment that isn’t right for them, it only makes them become defensive and resistant to any examination of their relationship to alcohol. In other words, it doesn’t just “not help,” it’s counter-productive. An important part of my job is to help my clients avoid being treated this way and insure that they find the kind of counseling that works for them, even if they’re not happy about having to go in the first place.

stressed-man-282x300The whole counseling thing is a deep subject in its own right, but rather than go off on a multi page examination of matching a person with the right kind of counseling or treatment method, suffice it to say here that my clinical training and my practical experience as a DUI lawyer combines so that I know how to explore this subject with my client in the office, while helping and protecting him or her in the courtroom. Someone can have all the clinical education in the world, but not know how to explain and say things in a way that will persuade a Judge (that, by the way, is why I limit my practice to the courts of Oakland, Macomb and Wayne Counties – so that I get in front of the same Judges day after day and know what will work, and what won’t, in front of each). By contrast, as well-spoken as any lawyer can be, to change a Judge’s mind, you have to provide both facts and viable alternative solutions. A lawyer may be right, but you can’t merely tell a Judge something like, “that won’t work,” or “that’s not the right solution” without explaining why and offering a better idea.

Let’s back up a step here. We’ve made clear that there is a legal presumption that all second offenders have some kind of drinking problem, but that’s kind of like saying that they all own dogs, too; both dogs and drinking problems come in all shapes and sizes. One of my goals is to help both the client and the Judge understand that the larger notion of “drinking problem” includes everyone from hardcore, everyday-drinking alcoholics, to people who don’t drink very often, but who sometimes don’t know when to stop at the appropriate time. In other words, someone who is just beginning to struggle with his or her relationship to alcohol is NOT in the same boat as someone who has been a heavy, daily drinker for decades. To be sure, they both present risks, although of very different magnitudes.

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.

222-300x262Let’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…

In part 1 of this article, we began our “big picture” examination of 2nd offense DUI cases by noting that there are really 2 key assumptions in every such case (particularly from the Judge’s perspective): first, that a 2nd offense DUI basically equates to the presence of a drinking problem, and second, that a person facing such a charge is a repeat offender. We noted that even if a person rarely drinks, picking up an OWI 2nd charge means that drinking is a risky activity for him or her. Here, we’ll pick up here and finish our examination of the drinking problem issue, and then move on to the habitual offender aspect of all this, and how, if handled correctly, we can use the issue of one’s troubled relationship to alcohol in order to offset the idea that a person is a habitual criminal. We left off in part 1 by noting that a person cannot simply show up to court in a 2nd offense case and claim that this is all just an unfortunate incident of bad luck, and/or that there’s really nothing to worry about with respect to his or her use of alcohol.

Why-is-Thinking-so-important-300x300This is important, because a person facing a 2nd DUI needs to understand that it really doesn’t matter how often or how much he or she does (or does not) drink, especially when they insist that no matter how things may look, they don’t drink that much, or otherwise don’t have a drinking problem. As the reader looks for a lawyer, keep this in mind, because it needs to be properly addressed by any lawyer worth hiring. If a lawyer doesn’t thoroughly work through this issue for you, then what is he or she going to do? Sure, one can “fight,” if there is something wrong enough with the evidence to fight about successfully, but if there isn’t, then what? What else can a lawyer do? Stand there and tell the Judge that the client insists he or she is not a big drinker, and doesn’t have a problem? What benefit with that bring? We surely know that the Judge has already reached the conclusion that the person’s drinking, is, to at least some extent, problematic. When handling a 2nd offense DUI case, the “I know it may look bad, but Im really not a big drinker” approach is worthless, and isn’t going to help anything. In fact, it only makes things worse.

That’s why acknowledging this is a starting point to correctly handle a 2nd offense DUI case. In fact, I’ll go one step further and say that the failure to address this up front is an outright mistake, and means the case is NOT being properly handled. As we noted above, though, there are really 2 assumptions that are part and parcel of every 2nd offense DUI case. Having briefly looked at the first (that the person has a problem with drinking), let’s now move on to the second – the idea that a 2nd DUI offender is a habitual offender, meaning a habitual criminal.