Driving While License Suspended 2nd or Subsequent Offense in Michigan (Macomb, Oakland and Wayne County) – Part 1

In Part 1 and Part 2 of the previous articles about Driving While License Suspended (DWLS) 1st Offense, we reviewed some of the reasons for and consequences of that charge. In this and the next articles, we’ll look at DWLS 2nd Offenses and examine how and why that charge is (and is not) sometimes made, as well as the consequences that accompany a 2nd Offense. This overview will be based upon the many DWLS cases I have handled in the Courts of Macomb, Oakland and Wayne Counties.

Given the sheer number of DWLS cases that I handle, it only makes sense that a pretty fair share of them involve DWLS 2nd (or Subsequent) Offenses. It should be obvious at the outset that a DWLS 2nd or Subsequent Offense charge means a person has at least 1 prior DWLS conviction on their Record. From here on out, we’ll refer to DWLS 2nd or Subsequent Offense as just plain DWLS 2nd Offense.

2008-alfa-romeo-159-interior1-775738.jpgWhen someone is Arrested and then Charged with a DWLS 2nd, it’s usual for their first concern to be staying out of Jail. If I have done anything in these blog articles, I think it’s fair to say that I have NOT been any kind of alarmist, or used any scare tactics to frighten anyone about the real-life consequences of their situation. In fact, I have gone to great lengths to point out just how unlikely going to Jail is in many different kinds of cases, including the previous series of articles about DWLS 1st Offenses.

That changes a little bit now. While a DWLS 1s Offense almost never (and simply never, in my experience) results in someone going to Jail, Second (2nd), and especially that part about Subsequent (meaning more than 2 prior DWLS convictions) Offenses brings a person much closer to being locked up.

First of all, DWLS 2nd Offense is a Misdemeanor, like DWLS 1st Offense, but it carries a penalty of up to 1 year in Jail (a 1st carries a maximum penalty of up to 93 days in jail). In addition, it carries a maximum fine of up to $1000 (DWLS 1st carries a max of $500), 2 Points on the Driver’s Record, and a Mandatory Additional Like Suspension. Beyond that, there is yet another, cumulative Driver Responsibility Fee, meaning that any DRF for a 2nd Offense is added on top of whatever other DRF a person might owe.

A Mandatory Additional Like Suspension means that a person will have another Suspension, of the same length as whatever one they were on at the time of their 2nd Offense, added on. Therefore, a person whose License was Suspended for 1 year (even if they were 11 months and 29 days into it, meaning they only had a day or two left on it and who is convicted of DWLS 2nd will have yet another year of Suspension tacked on.

As with any case involving a Suspended or Revoked License, the underlying reason for a person’s loss of License is very important. As I pointed out in the previous articles, and elsewhere, there are really 2 categories of Suspended and Revoked License Offenders:

1. Those whose original Suspension or Revocation is the result of a DUI, and
2. Everybody else.

This means that people who can trace their original cause for losing their License to a DUI will always be treated somewhat differently than those who lost their License for pretty much any other reason. Again, to say it in reverse , a person whose loss of License is the result of anything other than a DUI is in much better shape than the person who originally lost it because of a DUI.

The overwhelming majority of DWLS and Revoked License cases result from a person being pulled over while driving and having the status of their License discovered by the Police. In these case, the person is usually caught in the act, and there is little way to challenge these cases, except perhaps to question the underlying reason for the Police stop.

This means that for all except the rarest of DWLS cases, the Lawyer’s job shifts focus from evidentiary and legal challenges, to outright damage control. For those that call concerned about staying out of Jail, I always assure them that that’s my first priority.

Now, to be truthful, I don’t recall a single Client ever going to Jail with a true 2nd Offense DWLS (meaning they had only 1 prior DWLS). Granted, this experience is limited by the fact that I only handle these cases in the Tri-County area, and with the Jails at or nearly overcrowded, this type of Offense, even if it is a 2nd, doesn’t rank too high on the public safety threat index.

When we start talking about 3rd and 4th Offenses, however, Judges really begin to take a different look at the person standing before them. Whatever else, a 3rd of 4th time Offender begins to look like a “scofflaw,” or a person who doesn’t care to follow rules they don’t like. In these cases, anyone in the Judge’s seat might start to think that the Offender could use a lesson in respect and rules, and locking them up begins to look like an easy and available, if not necessary, option to do that.

Likewise, 2nd Offenders lose the credibility to tell a Judge that this charge represents an instance of bad judgment. Very often, a person charged with a DWLS 1st Offense will tell a Judge about some situation or circumstance that compelled them to drive on the day they got caught. The need for a ride to work, or some other unusual situation is a frequent explanation, if not excuse. At this point, most Judges will remind a 1st Offender that, whatever their story, it is illegal for them to drive, and they need to remember that and simply NOT drive. And you can bet that when a Judge says that, the person standing in front of them agrees, and promises not to do it again.

Then they wind up with a DWLS 2nd Offense charge. Essentially they are out of excuses. Of course, it’s naive to think that most people, like me, who work in the Criminal Justice System, don’t realize that any number of people who have lost their Driving privileges still drive anyway, if not just more carefully. I’m not here to pass judgment on a person, and I fully realize that for many people, there is no realistic alternative to just taking your chances and driving. This is, (or at least was) after all, the Motor City, and there’s no Metropolitan area anywhere that has less available and convenient mass transit than we do. In other cities, grabbing the subway, a cab, or the bus is just one of many options. Here, it often seems worse than a last resort.

Still, the fact is that, from a legal point of view, that’s the Offender’s problem, not the Legal System’s. After all, people don’t just randomly “lose” their License, nor do they have it taken away for being too good a Driver. At the root of all License Suspensions and Revocations is something that was done which should not have been, whether it’s a DUI, or not having taken care of a Ticket or Tickets, or not paying Driver Responsibility Fees, or whatever.

In Part 2 of this article, we’ll continue our examination of DWLS 2nd (and Subsequent) Offenses. We’ll look at the differences in the the Lawyer’s handling of, as well as the potential outcomes in 2nd, 3rd, and even 4th Offense cases.