Articles Posted in DUI 2nd Offense

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.

In part 1 of this article, we began looking at the benefits and growth of DUI sobriety courts in Michigan.  We examined how these programs can help someone facing a 2^nd offense DUI, and even a 3^rd offense DUI, not only to get sober, but also to NOT lose their driver’s license.  I pointed out that in my practice as a DUI and driver’s license restoration lawyer, I deal with alcohol problems on both sides of the equation; from those facing a drunk driving charge and struggling with their drinking, to those who have gotten sober and are ready to win back their driver’s license.  In addition, I bring a clinical background and education to my practice, which initially made me a bit skeptical of sobriety courts.  However, because of the many success stories I have seen, I have been won over and think everyone facing a 2nd or 3rd DUI should at least consider sobriety court, if it’s an option.  We ended the first installment with 1 of 3 real-life examples of sobriety court success from my own case files.  Let’s move on now to the others, and then look closer at the what sobriety court really is all about.

My second example is a situation I have dealt with many times since, but this driver’s license restoration case, from a few years ago, connected me to one of my first sobriety court graduate clients.  In these cases, I am hired to get the person’s restricted sobriety court license changed to a “full” license.  Normally, exploring a person’s recovery and the depth of his or her commitment to sobriety is the “meat and potatoes” of a driver’s license restoration appeal.  When I walked into the room to meet this fellow (he had not been my DUI client, so he was a new to me), I was a bit skeptical of his sobriety credentials, considering that they were exclusively from his participation in the sobriety court program and that they were only a few years old, at that.  Boy, was I in for a surprise.  This guy told a story about having been dragged kicking and screaming into sobriety court, figuring he could live for a year or a year and a half without a drink and somehow get through it.  Cloaked in denial and filled with resistance, the light switch flipped for him early on in the program and he just had an epiphany that he could and would never drink again.  He said that there were 2 sayings from the AA program that hit home with him: “I didn’t get in trouble every time I drank, but every time I got in trouble, I was drinking,” and “I was sick and tired of being sick and tired.”  Counseling helped him get honest with himself, and when he could no longer believe his own lies, he just knew that he had to put the plug in the jug and quit drinking for good.  But for him, like my other client, it was a lot more than just not drinking that changed his life; he got sober.  His whole life changed, and he was happy and upbeat and making money because he became a much better version of himself.  He ditched his anger and resentments and if you met him, you’d have seen and felt just how magnetic a person he was (and still is).  He too, credited sobriety court for helping him break through his denial and achieve real sobriety.  The most obvious thing about the guy was that he was a happy, positive and radiant person.

The third example comes from another DUI client of mine who I got into a sobriety court.  In this case, the court where his 2nd DUI was pending had (and still has)  a sobriety court program.  This client is amongst the very nicest of people you could ever meet, with a flair for the artistic and dramatic that makes him fun to just be around.  Although he acknowledged early on that drinking had become a problem for him, and he wanted the help from sobriety court, he wasn’t quite ready, early on, to quit drinking for good.  In other words, he struggled a bit.  It happens.  This is what people mean when they say that relapse is part of recovery.  Fortunately, my client just happened to wind up in an awesome sobriety court program, and the Judge didn’t give up on him.  Just like everybody else, the decision to finally stop drinking for good – the one that “stuck” and really marked the start of his sobriety – came as the all-too-cliched, but also very real “light bulb” moment.  Part of his sobriety court program was to see a therapist, and at first, he didn’t much like the guy because the therapist wasn’t buying any of my client’s BS and excuses for drinking.  As my client explained it, the therapist challenged him in a way that had him thinking even after the sessions ended, and it was that “food for thought” that eventually tipped the scales in his mind in favor of NOT drinking anymore.  Although the decision to quit drinking was ultimately my client’s, he credited the dialogue with his therapist for helping him get to that point.  On a side note, this client did not fit in well with the AA program, and to his Judge’s credit, he was allowed to use alternative community supports instead.  At any rate, this dynamic fellow really came into his own and blossomed in his sobriety.  More important than the external changes, however, was the fact that, internally, he was happy.  He found the joy in life again, and it all came about because of his participation in the sobriety court program.

The landscape of 2nd offense DUI cases is changing rapidly in Michigan due to the growth of sobriety courts.  The sobriety court law was enacted several years ago as a test, or pilot project, but it really took off, and now, more and more courts are getting in on the act.  At first, I was a bit cautious toward the whole idea, in part because of my clinical training in addiction studies.  In addition, some of that reticence was due to the fact that my practice is kind of split between handling DUI cases and driver’s license restoration appeals for people whose licenses have been revoked for multiple DUI convictions (in that sense, you can think of my practice like a “Q-tip,” with my role as a DUI lawyer on the one end,  a license restoration lawyer on the other, and alcohol as the stick that holds them both), so I deal with real sobriety even single day.  Early on, the most noticeable impact of sobriety courts was a large spike in ignition interlock violation cases before the Michigan Secretary of State.  And if you looked at just that data alone, you’d have gotten a limited, mostly negative, and completely inaccurate view of sobriety courts.  As it turns out, the sobriety court program has done a lot of good, and we are really only at the starting gate with respect to its larger potential.  In this 2-part article, I want to outline some reasons why anyone facing a 2nd, or even 3rd offense DUI should consider the sobriety court option, and look at bit at what’s involved.

Sobriety court is a functional example of the “carrot and the stick” approach because the programs provide a huge incentive to the participant by way of overriding the automatic revocation of his or her driver’s license (meaning a person can get a restricted license where it would otherwise be impossible), while balancing that with zero tolerance for any further drinking, backed up by all kinds of testing to insure compliance.  The court system, for its part, automatically (and by operation of law) concludes that any person with a  2nd (or 3rd) offense DUI has a drinking problem.  For all the arguments to the contrary the reader may have, it is a given within the court system that if you’ve picked up a 2nd or subsequent offense, your drinking is a problem.  Period.  We have to begin from there.  The goal of sobriety court is to provide intensive rehabilitative services and help a person overcome that problem.  Obviously, this won’t work at all for someone who feels that his or her drinking is not troublesome.  Anyone convicted of a 2nd DUI offense within 7 years will automatically have his or her driver’s license revoked and, realistically speaking, won’t be able to legally drive again for at least the better part of 3 years.  It’s worse for someone convicted of a 3rd DUI within 10 years, because the mandatory revocation there is at least 5 years, and this applies no matter what the final conviction offense (like even if a person gets a great lawyer for a 3rd offense felony DUI charge and has it negotiated down to a 2nd offense misdemeanor, something I do all the time).  In a stunning exception to these set-in-stone license sanctions, a sobriety court Judge has the power to override a revocation after a 45 day suspension and grant a restricted license to anyone in the program.

This is huge, and coming from me, that means a lot.  Since about 1/2 of my practice is driver’s license restoration cases, having any 2nd or 3rd offender get a sobriety court license means one less potential license appeal for me.  If I was entirely self-interested, my analysis would end there.  But the reality is that if you can save your license and avoid having to hire me (or someone like me) just to win a restricted license years down the road, you’d have to be crazy to at least not think about it.  From my point of view, this is a no-brainer.  The problem, however, and where I still pause, is that I am not in favor of looking at sobriety court ONLY as a means to keep your driver’s license.  Part of my DNA as a lawyer and a person is the strong clinical focus that I bring to my cases.  Beyond my post-graduate matriculation in addiction studies, the entire focus of driver’s license restoration cases is on sobriety and recovery, topics that have been central to everything I do for more than 25 years.  Nor is this just some academic or professional interest, either, as I have had close and direct personal interaction with addiction issues and those struggling with them.  As a result, I want my clients to get help, and I want to assist as much as I can in that, but I have a strong aversion to just “gaming” the system and wasting sobriety court resources on someone whose only interest is in his or her driver’s license.

A rather large chunk of my DUI practice involves handling 2^nd offense cases.  Although I have written about this subject in the past, a meeting with a new client last week reaffirmed the reason why I seem to get a disproportionate number of 2^nd offenders..  To put this in perspective, you must understand that the overwhelming majority of people who go through a 1^st offense drunk driving case never get in trouble again and are truly “one and done’ customers.  This means, of course, that of 2^nd and 3^rd offense DUI cases account for a rather small percentage of the overall number of DUI cases that wind through the court system each year.  That stands in contrast to my practice, where I represent a much higher percentage, overall, of 2^nd offenders.  Although I certainly handle a lot of 3^rd offense (felony) DUI cases, as well, the focus of this article will be on why I get so many 2^nd time DUI offenders.  I’ll leave to my other writings to explain the nuances and unique aspects of 2^nd offense drunk driving cases.

The fact that I handle so many 2^nd offense drinking and driving charges is, in large part, a compliment to me and my efforts on this blog.  The story of the 2^nd offense client from last week explains this rather well.  As we spoke about his prior DUI case, it was natural for me to ask the name of the lawyer who handled it.  My client hung his head in defeat and sort of laughed out a response, saying, before he revealed the name, “I know, I got taken.”  He went on to relate how he thought that blowing way over $10,000 in legal fees made it seem like he was really going to beat the case.  “The guy promised me everything,” he said, shaking his head.  “I wish I would have found you before.”  He then told me that he had read lots of my blog articles, and liked the way I write (I do my best to write conversationally, so that when I meet someone in person, the “voice” in my articles sound just like me when I talk).  He said he appreciated the honesty in what I say, and my use of “real world” examples to make things as clear as possible.  I thanked him, and then joked that, given how much the “promise everything” operations charge, maybe I should change the way I do things.

As funny as that may be, it really does cut to the heart of how I do things, and what differentiates me from so many of the other websites out there.  First off, I hate it when lawyers try and scare people.  This is something that makes me shake my head, because I run the other way if someone tries to use any kind of scare tactic as a “sales tactic” on me.  By the same token, I have never seen an exception to the warning that, “If it sounds too good to be true, it probably is.”  And here, the actual statistics tell a very clear and consistent story; year after year, of all the alcohol and DUI-related arrests in Michigan, less than one-quarter of one percent go to trail and win.  In 2015, for example, out of 43,553 such arrests in Michigan a grand total of 62 were found “not guilty” after trial.  That’s .14% (point one four percent).  For everything you’ll read about beating a DUI case, you won’t see any of those lawyers linking to the actual numbers.  It’s kind of like those self-study real-estate programs where you’re promised that you’ll be taught how to buy great properties with no money down and get rich.  In the real world, that s**t doesn’t happen.

A rather large percentage of my DUI practice involves handling second time drinking and driving cases, meaning cases for people that have had a prior drunk driving a long time ago, as well as people facing an actual 2nd offense DUI charge. The reason for this is pretty simple: Those who have been through the process before recognize that my various explanations of the DUI process are pretty much spot-on, and have learned to separate what one wants to hear from what is true and accurate. There is, at least legally speaking, a vast difference between a 2nd offense DUI charge and merely going through the process for the 2nd time after a prior offense many years ago. A 2nd offense DUI charge is one, by law, that is brought within 7 years of a prior such case. Technically speaking, a DUI is a “second” if the arrest date for the current charge takes place within 7 years from the date of the conviction for the first. This does not mean, however, that everything is just peachy-good simply because a prior DUI falls outside of the 7-year window. Sure, a whole boatload of legal problems is avoided when your second DUI is not technically a “2nd offense,” but you still have to deal with the implications and reality of that prior offense, even if it cannot be used to enhance the penalties of the current charge.

Recently, while attending a hearing in a driver’s license restoration case, a hearing officer redefined things for me and my client (who did win his full license back, by the way) after he characterized his 2 DUI’s as “mistakes.” She looked up, interrupted him, and said this: “Those weren’t mistakes. When you drove drunk the first time, you committed a crime. When you did it again, you became a habitual criminal.” That may sound harsh, but it gives a glimpse of how these cases are seen in the larger world. I’m sure one of the reasons I have such a robust DUI practice is that I am unique in pointing these things out, and speak rather candidly, if not at least diplomatically about these subjects. Avoiding real-world discussions and/or sugar coating things doesn’t help anyone. I have no tolerance for being patronized, and, in turn, have no inclination to do the same to anyone else. It is very easy for a lawyer to simply agree with the client (remember, the customer is always right) and not want to offend him or her, but the reality is that if you’re going to do anything good for a person facing a second DUI, it means you may have to get a little uncomfortable and tell it like it is. And it is this way: a person going to court for a DUI who has had a prior drinking and driving conviction is going to be seen by the Judge (and almost everyone else) as having, or as being at a substantially increased risk of having, a problematic relationship to alcohol.

I say this because most people who contact a lawyer for a second DUI, even if the charge itself is not a “2nd offense,” will want to explain that no matter how things look, they don’t have a drinking problem. If you sat in my chair, you could pretty much bank on hearing that in almost every such case, and usually as one of the very first things a person will say, at that. I understand this, but as easy as it would be for me to nod and agree, if I’m going to make things better for my client, then I need him or her to understand that you can say that until the end of time, but, in only a few exceptional circumstances, you’re not going to get the Judge to just go, “Oh, okay, well, I’m glad you cleared that up…” You don’t have to think about this too long or hard to realize that it doesn’t matter what you or I think. In the final analysis, it matters what the Judge thinks, and, when you think about that even a little, you begin to realize that nothing else matters nearly as much….
Continue reading