Articles Posted in DUI 2nd Offense

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.

In 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.

Almost 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.

The 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.

Let’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.

This 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.

Anyone facing a 2nd offense DUI can literally “feel” the seriousness of the situation, so there is nothing to be gained by repeating all the scary things that could happen. As a Michigan DUI lawyer with the most informational blog anywhere, I’ve gone to great lengths to explain how most of those potential negative consequences won’t occur, anyway, and that even jail can be avoided in most 2nd offense cases. Thus, the last thing the reader needs is some laundry list of all the possible legal punishments that can be imposed. Nor, for that matter, does the reader need to endure some babbling sales pitch about how this or that lawyer can save you from them, or from more of them than the next guy. In this 2-part article, I want to step back and take something of a “big picture” look at a 2nd offense DUI situation and 2 key assumptions that run through every such case: the presence of a drinking problem and that the person is a habitual (meaning repeat) offender.

To get a handle on that first assumption, forget the whole court and criminal justice system for a moment. Imagine you are at a social gathering with some really decent people. The subject of DUI’s comes up, and someone mentions that Lovely Linda’s husband was recently arrested for his second offense. By all accounts, Linda’s husband is a successful professional and a nice guy. A few people blink and say something like “wow,” or “ooh.” Why do regular people react that way? First, because it seems out of character or unexpected (Linda and her husband are, remember, nice people), and second, because people automatically assume that he has a drinking problem, based solely upon the news that he picked up a 2nd DUI. The distinction I want to the reader to think about here is that things are perceived differently, depending on your position in the situation. When it’s you facing the DUI, it is normal to have all kinds of excuses and explanations to minimize your actions. However, if it’s you hearing about someone else’s 2nd offense DUI, you generally and almost immediately conclude that he or she has some kind of drinking problem, and would likely be dismissive of all the person’s excuses and explanations to the contrary.

If we’re going to undertake a realistic examination of 2nd offense DUI cases, we have to begin with this. There are too many lawyers out there selling people what they want to hear, but in the real world, where these cases are actually handled, you have to understand how a 2nd offense drunk driving is perceived, especially in the court system where they are decided. You have to ask yourself if you’re looking for a lawyer to help you, or just agree with you. Whatever you may say or feel about it, the truth is that when you walk into court for a 2nd offense DUI, you are seen, up front, as having a troubled relationship to alcohol.

In my role as a Michigan DUI lawyer, I handle a lot of 2nd offense drinking and driving cases. On my website, 1st offenses, 2nd offenses, and 3rd (felony) offenses are examined in a more overview fashion, while on this blog, I have covered each of the OWI charges in rather painstaking detail within the DUI section. In this article, I want to circle back to 2nd offenses and look at how 2 things, in particular – your prior record and the location of the charge – can affect what happens to you. In many of my prior articles, I’ve made clear that in just about every 1st offense DUI case, you’re not going to jail. Things are different, however, in 2nd offense DUI cases, where jail is a very real possibility, although it’s seldom a certainty. In the real world, there are some courts that rarely, if ever send 2nd offenders to jail, a few that usually (or even always) do, and then there are the rest, in the middle, that may or may not play the jail card, depending on the circumstances.

You don’t have to be a legal scholar to realize that you prior record matters, but it matters more than just because you have a prior DUI. By law, you can only be charged with OWI 2nd offense if, and only if, you have a prior conviction for another alcohol-related traffic offense within 7 years of the date of your arrest for the current case. By definition, then, every 2nd offender has a “prior record.” There is a lot more to this, however, than just that one previous DUI case, although the circumstances of that prior offense can play a greater (or lesser) role in how things turn out now in the new case For example, a person still on probation for a High BAC 1st offense ,who then goes out and picks up another DUI (and whose BAC in the new case is also really high) is going to be in a tough spot. Contrast that situation with one where an older guy who picked up his 1st DUI, with a really low BAC (just over the legal limit) nearly 7 years ago, after he staying late at his daughter’s wedding reception to help clean up. Now, assume the guy’s new case arose from him being arrested (with another really low BAC) on his way home from a surprise retirement party thrown for him after his last day at work. These are very different situations.

Beyond your previous DUI, however, any other prior record you have can matter. It was not any due to grammatical sloppiness that I wrote “can matter,” because not every prior offense really does matter, at least within the context of a 2nd offense DUI. For the most part, prior alcohol or drug-related offenses are considered more significant, as are any offenses that usually involve alcohol or drugs, like domestic violence and disorderly person charges. Thus, if Tipsy Tina, recently arrested for a 2nd offense DUI (with a prior that occurred 5 years ago) was also convicted of retail fraud about 12 years ago, back when she was a teenager, that offense will probably not have any effect on her now. However, if Tina has a marijuana charge, and even if it was 15 years ago, it will matter, if only a little. Of course, if Tina was convicted of having open intoxicants in a motor vehicle just a few years back, you can be sure that offense will have a fairly significant effect on what happens in her new case. When it comes to how much, if at all any prior record matters in a 2nd offense case, the only accurate answer is the dreaded, classic lawyer response – it depends.