Articles Posted in DUI 2nd Offense

In part 1 of this article, we began looking at how and why 2nd and 3rd offense Michigan DUI charges are so much more serious than 1st offense DUI charges. We began by noting that the overwhelming majority of DUI offenders fall well outside any notion of being a “criminal,” even though drunk driving is a criminal offense. In addition, we saw that there is no class or group of people who are exempt from getting caught driving over the limit. In that sense, a DUI often represents a the textbook example of a good person finding him or her self in a bad situation.

The whole experience of a 1st offense DUI is legally structured to be expensive and otherwise unpleasant in such a way as to strongly deter someone from a repeat performance. In addition, under Michigan law, anyone convicted of a 2nd of 3rd offense DUI is automatically categorized as a “habitual alcohol offender,” is presumed to have a drinking problem, and will have his or her driver’s license revoked as a result. This means that anyone showing up in court for a 2nd or 3rd offense DUI can’t explain away their situation as just “bad luck.”

This is a critical reality that the DUI lawyer and client must either acknowledge and plan around, or else get crushed by, as they go through the case. This is basic stuff, but it is really important, as well. It may help the reader understand all of this better by trying to put him or her self in a Judge’s position for a moment as he or she looks over the bench at any 2nd or 3rd time DUI offender: Is the person standing before me some bad actor who just doesn’t give a $hit about the law, and who has no respect for it, or, instead, is he or she some poor soul who has a drinking problem?

In our roles as Michigan DUI lawyers, we handle the entire range of drunk driving charges, from 1st and 2nd offense misdemeanors all the way to 3rd offense, felony cases. Although everyone “knows,” as a matter of instinct, that a 2nd offense is more serious than a 1st offense, and that, in turn, a 3rd offense is more serious than a 2nd offense, it’s important to understand why this is true. In this article, and without using any fear tactics, I want to look at 2nd and 3rd offense DUI charges in a way that will help anyone facing either of them to better appreciate his or her situation.

In Michigan, what we commonly call “DUI” is legally known as “OWI,” short for “Operating While Intoxicated.” It is a criminal traffic offense, meaning that it is both a criminal offense, and a traffic offense. Consequently, a DUI conviction will go onto both a person’s criminal record and his or her driving record. Despite a number of recent changes to he state’s expungement law, a conviction for a 2nd or 3rd offense DUI charge will go on (and stay on) both a person’s criminal and driving records, and neither of them can ever be set aside. This stands in stark contrast to the recently legislated ability to remove a 1st offense OWI conviction, under certain conditions, from a person’s criminal record.

Everyone understands that criminal and traffic offenses can range from relatively minor to extremely serious. For example, a ticket for speeding 5 mph over the limit is qualitatively different than one for 30 mph over the limit, just like a misdemeanor charge of disorderly person is a world apart from a felony murder charge. One key thing about Michigan DUI charges – unless they involve death or an injury to another – is that the level of severity is basically measured by whether or not a person has any prior OWI convictions, and, if so, how many.

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.

The 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.

Although 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.

This 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.

Although 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.

This 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.

To 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.