As a Michigan criminal and DUI lawyer, about 2 of the most common questions that I’m asked are, “Am I going to jail?” and “Can you keep me out of jail?” Even the quickest look at a sampling of DUI lawyer websites reveals that the whole “Avoid jail!” theme is used everywhere, by everyone. It seems to be the strongest pitch a lawyer can make for your money. I’m no exception; I make it, too, and I know that if I was in a pickle, staying out of jail would certainly be my first and biggest concern. However, as I have pointed out in many of my various DUI articles on this blog (as well as my website), in the kinds of drunk driving cases and clients I handle, jail is usually not, for the most part, even on the menu. But the cold truth that I have not seen addressed (until now) on any lawyer site is that some people do, in fact go to jail., and you can be sure that the folks sitting there didn’t book themselves in voluntarily.
It is generally understood that, as a lawyer, talking about this isn’t good for business. That’s why attorneys avoid it like the plague. That’s also a disservice, however, to someone seeking real world information about what happens after a drunk driving arrest. Of course, it’s my first goal to avoid jail as much as possible, in every situation possible, but even the WORST lawyer out there has the same goal, although perhaps not the skill to do it quite so well. There is no hard and fast rule about who does get some jail time as opposed to who doesn’t, but there are a few helpful observations we can make to clarify things a bit. On the one hand, if you’re facing a 1st offense DUI, you’re not really facing any jail time. On the other hand, someone with a bad record has a much better chance of doing some time than a person with no prior record. I addressed this in a recent article, and common sense is a pretty good guide here. If you’re facing your 5th DUI, then yeah, you can count on some time. Beyond that, however, there is a mix of variables that figures into all of this. Some jurisdictions are really tough, while others are much more forgiving. In fact, one Judge can be way more lenient than another would be in the exact same situation. You also have to include the prosecutor in this mix of variables, as well, because not only do individual prosecutors from the same office have different approaches to things, but some offices are much more flexible than others.
Our discussion here will be limited to the things I handle my own practice: DUI cases and criminal cases involving things like suspended and revoked license charges, drug possession, and other misdemeanors and lower-level felonies, mostly for professionals or other good wage earners. meaning good people caught up in a bad situation. For the most part, if you’re a solid citizen and haven’t been in trouble before, and you’re facing something like a DUI or suspended license charge, jail isn’t really on the menu at all. Even if you have had a prior scrape with the law, including, perhaps, a prior DUI, you’re still probably safe in almost every one of the courts where I practice. But here’s where things get dicey: