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Articles Posted in DUI 2nd Offense

As full-time Michigan DUI lawyers, we are regularly contacted by people facing 2nd offense DUI charges. In a recent article, I noted that sobriety court is an option that should be considered by anyone in that situation. One of the main points I made there was in order to be a candidate for sobriety court, a person has to really believe that, at least to some extent, his or her drinking has become a problem. Michigan law, for its part, automatically concludes that all 2nd offenders have some kind of issue with drinking, and that will be the focus of this piece.

vectorstock_24438343-295x300The inspiration for this article came from an email we received some time ago. I’ve waited a solid year before reprinting it in order for the case to resolve. It is reprinted below, exactly as it was received, except that I have redacted any potentially personally identifying information. The email highlights a real divide my team and I encounter among 2nd offenders: Some people come forward, either knowing, or at least open to the idea that drinking has caused them too much trouble, while others don’t even give their use of alcohol a second thought, and just consider themselves unlucky for picking up their 2nd DUI.

As I will explain, examining a 2nd offender’s relationship to alcohol is absolutely crucial to producing the best results possible in his or her DUI case, although it’s all too frequently ignored outright by many legal websites. This goes to another subject I often write about – the idea that people can often be swayed by what they want to hear, rather than listening to what they need to hear. Although some people who wind up facing a 2nd offense DUI may not be very interested in looking at their drinking, they’ll soon enough learn that’s exactly what the court is going to do.

As Michigan DUI lawyers, we deal with a lot of 2nd offense and 3rd offense DUI cases. In our conversations with clients facing those charges, my team and I always explore any options they may have for admission into a sobriety court. The key goal of this article is to provide a short and sweet overview of sobriety courts. Because this subject is rather deep, however, it was no small task to boil things down into a single installment, as I’ve done here.

Help2-300x280Although each one is unique, a “sobriety court” is a regular court that has an officially sanctioned treatment program component for alcohol and/or substance abuse disorders. Although similar to an “adult treatment court” or a “drug court,” a sobriety court is a special kind of program designated by the State Court Administrative Office (SCAO) to not only offer counseling, treatment, and support, but also confers upon a Judge the power to override the Michigan Secretary of State’s mandatory revocation of a person’s driver’s license and grant a restricted license.

The primary aim of a sobriety court is to offer a wide range of otherwise expensive counseling and treatment options at little to no cost to someone who wants help with his or her relationship to alcohol (and/or drugs). The idea behind this is that anyone who is racking up multiple DUI offenses has some kind of problem, and anyone who is willing to do something about it should be offered assistance, rather than punishment. Thus, it should not come as a surprise that a sincere desire for help is a prerequisite for admission into a sobriety court program.

Everybody knows that a 2nd offense DUI is a big deal, but, as I always try to make clear, it does not necessarily mean that someone is going to jail. Because people are understandably freaked out when they face an OWI 2nd offense charge, they quickly start looking online for information. Unfortunately, often enough, because basic human nature takes over, people get distracted and sucked into looking more for what they want to hear, rather than the straight truth, meaning what they need to hear.

mug15oz-whi-z1-t-oof-i-did-it-again-2-300x244This is probably most consequential in the context of a 2nd offense DUI case more than any other. Despite the competing marketing pitches of different lawyers, the real truth is that a 2nd offense straddles the polar extremes between a 1st offense and a 3rd offense. In the real world, a 1st offense can, with proper handling very often be treated as more of a “mistake” rather than anything else, while a 3rd offense, by contrast, is always perceived and should be treated as a very serious matter.

This does not simply mean that on the continuum of severity, a 2nd offense DUI is exactly at the halfway point between a 1st and 3rd offense. There are a lot of factors to be considered in evaluating how bad, or not, things are in any DUI case – things like location and the temperament of the Judge, for example. Across the various courts, different Judges have different perceptions about a 2nd offense DUI. Thus, a 2nd offense DUI can be anywhere from “not that bad” in one court to a real mess in another.

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 the previous articles about the alcohol bias, I explained how it can result in “seeing” problems that aren’t there, or seeing those that do exist as worse than they really are. As a result, unnecessary counseling or treatment is often ordered by courts, or, when some kind of help IS warranted, what does get ordered may be far more intense than what is really needed by the person who has to go through it. I’ve pointed out that a rather general explanation for this is a pervasive notion in the court system that “it’s better to be safe than sorry.” In this article, I want to try and look at things from the court’s (safe) side of things.

Point-Counterpoint-B-300x300The fact that this “other side” can be examined in a piece about 10 times smaller than the larger examination of of the alcohol bias says something, to be sure. Even so, the courts do have some genuinely valid concerns. For as much as there is to dispute the basis of the alcohol bias in the court system, we should, in all fairness, consider the things that support it, as well. For example, as much as the alcohol bias is subconscious, every Judge is always aware that, when sentencing someone for a DUI charge, instead of ordering any kind of counseling or treatment, they can just send the person to jail.

In the blink of an eye, and given that choice, every person I have ever met would much rather go to all the counseling and meetings in the world, rather than get locked up. Although the end result can be imperfect, it is almost always the intention of the court system is to provide a DUI driver with whatever level of education or counseling he or she needs, or that will be beneficial to him or her. The underlying objective of the sentence in every DUI case is really two-fold: on the one hand, what’s ordered should be disincentive enough to convince the person to never drive drunk again, while, on the other hand, it should provide the appropriate level of education or/or counseling to address whatever issues may have led up to the DUI in the first place, in order to avoid a repeat performance.

As Michigan DUI lawyers, we represent people from every profession and occupation, including a lot of medical and technical people. One of the most common concerns voiced by someone facing a 1st offense DUI is the potential impact of a conviction, and how it will affect their employment and/or licensure. Often, we will hear a statement such as, “I can’t have a DUI on my record.” In this article, I want to take a look at why, for almost everyone (at least for those who don’t drive for a living), a DUI is not the end of your career.

XBSE-288x300In the real world, a DUI is almost never any kind of job killer. In my nearly 30 years as a lawyer, I have only had a handful of people whose employment has been adversely affected by a DUI, and ALL of them were people for whom a clean driving record was a condition of employment. Most had a CDL (Commercial Driver’s License), and could no longer drive a company vehicle because commercial driving privileges are automatically suspended as the result of any alcohol-related driving conviction. Even among this group, most were simply moved to different positions within their companies, and not fired.

This reality stands in stark contrast to how people freak out, and what they dread, when they first get a DUI. This is why, in article after article, I caution against acting out of panic. I advise that everyone take their time as they look for a lawyer, rather than hiring the first attorney who returns an email or phone call. At any rate, the larger point here is that there is a very big disparity between how people think a DUI will hurt their ability to earn a living, and what really happens. Fortunately, things almost never turn out as bad as people fear.

The worst part about a 2nd offense DUI is that it is a second offense. This is not meant sarcastically, nor is meant to just restate the obvious. In this article, I want to help the reader understand more than just the legal implications of a 2nd offense OWI charge. Most of my articles are of the “what you can expect” variety, examining things from an inside-looking-out perspective. In this piece, we’re going to flip things around and take an outside-looking-in view in order to see how the person facing the DUI is perceived by the courts.

2725367-EUSUUKES-6-225x300This is important for a number of reasons, not the least of which is that perception matters, and, as the saying goes, perception shapes reality. For all the analysis that we could get into, the bottom line is that under the law, and within the court system, anyone facing a 2nd offense DUI charge is presumed to have a problem with drinking. I point this out here so that any reader who wants to stop and explain that he or she is somehow different, or some kind of exception to that, will hold that thought and let me explain. Whatever else, it doesn’t matter what you think, or what I think; what will happen to you is based entirely on what the Judge thinks.

My job, as the DUI lawyer, is to positively influence that thinking as much as possible. There is a lot that can and should be done to produce the best outcome possible, but as a starting point, a person must understand that when facing a 2nd offense DUI, it is automatically assumed that something is up with him or her and alcohol. It is also automatically assumed that most people will try and convince everyone otherwise, and that, generally speaking, the more they do that, the deeper a hole they dig for themselves. This is a prime example of where a person should remain silent and let me do the talking.

In part 1 of this article, I began reviewing how my in-depth understanding of recovery, and the various way people do, in fact, recover from alcohol (and drug) problems gives me a decided advantage as a Michigan driver’s license restoration lawyer, to the point that my office guarantees to win every first time license restoration and clearance case we take. Our overview began with a discussion on the importance of examining a person’s relationship with alcohol in the context of DUI cases, and particularly 2nd offense cases. Here, in part 2, we’re going to shift that focus to recovery, and how that is central to success in a driver’s license appeal case.

2-300x184When someone contacts me about a license restoration or clearance appeal, the first thing I want to know is the last time he or she had a drink. There is no way to overstate this: proving you have quit drinking for a sufficient period of time and have the commitment and tools to remain alcohol-free is the absolute key to winning a driver’s license appeal. Nothing else matters without sobriety.

This is where a lot of people, including lawyers, get lost – right at the part about having the “commitment and tools” to stay sober. Pretty much everyone in the world is familiar with AA, but unfortunately, that’s also just about all most people know about recovery. For a long time, AA was the only game in town. Before AA, the only way to address alcohol problems was what we now call the “moral model,” where the hope was a person could be shamed into not drinking anymore, or somehow “prayed” into recovery. Not surprisingly, that didn’t work.

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