Articles Posted in DUI 2nd Offense

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.

Up until recently, if you would have asked what I think sets me apart as a Michigan driver’s license restoration lawyer, my answer would have almost certainly centered on the fact that my office guarantees to win every license restoration and clearance case we take. However, a recent discussion with Ann, my senior assistant, provided an insight that I think is helpful to someone as he or she looks for a lawyer. As she pointed out, what makes us so different from every other lawyer is that we really know and care about recovery and sobriety. We’ll examine this over 2 installments.

heart-recovery-300x218In a very real way, I seemed to have overlooked the recovery aspect, probably because it’s so central to who I am and the work I do. To be sure, my articles about sobriety leave no doubt that my understanding of the development, diagnosis, treatment of, and recovery from alcohol and drug problems runs very deep, and goes miles beyond the legal aspects involved in winning a license appeal. Having completed a post-graduate program of addiction studies, I bring a healthy measure of clinical knowledge unmatched by any other lawyer I know.

However, it goes even farther than that, because my reasons for spending the money and time on all this was to be able to actually help my clients; first, as people, and second, within the context of their license restoration, DUI or criminal cases. That’s the part I have been overlooking. I’m going to put false modesty aside for a moment and candidly point out that if you’re looking for a lawyer, you simply will not find any other attorney or law firm that comes close to knowing about or believing in recovery like me and my team.

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.