Michigan Criminal Defense Lawyer Blog
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.
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.
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.
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.
The 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 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 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.
When 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.
In 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.
One 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.