Michigan Criminal Defense Lawyer Blog
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…
First, let’s quickly address the issue of jail for a moment. That’s pretty much everyone’s biggest concern, so I’ll note this for now, and then we’ll come back to it later: most 2nd offenders can be kept out of jail and those who do have to go usually only get a few days. We’re not talking weeks or months here. We’ll come back to this toward the end of the article and examine it more closely. For now, simply accept that the whole jail thing isn’t nearly as bad as you’re probably thinking.
One of the biggest difference between 2nd offenses versus either 1st or 3rd offense OWI cases is the lack of meaningful plea bargains. Locally, it is generally not feasible to negotiate a plea bargain that will reduce a 2nd offense down to a 1st offense. By contrast, in most 1st offense cases, a plea bargain of some sort can be negotiated to reduce the charge, and, in turn, it’s impact. The same thing holds true in many 3rd offense situations, as well, where a plea deal from a 3rd (felony) offense will drop the charge to a 2nd offense misdemeanor. As we’ll see, because of the way the law works (and how Judges apply it) a “plea bargain” in a 2nd offense case wouldn’t really have much of effect on what happens to a person, anyway.
Even though it’s not the first thing on a person’s mind, the biggest legal consequence likely to be felt in a 2nd offense DUI is the revocation of your driver’s license This is where you’ll really feel the brunt of state law. Given that most 2nd offenders won’t go to jail (and those that do usually only get a handful of days, not weeks or months, because even Judges who do give out a little time don’t want anyone to lose his or her job), it’s the complete loss of your ability to drive that will have the most significant and lasting impact on your life.
The first thing to understand is that all driver’s license sanctions are handled directly by the Secretary of State. This is exactly what happened in your 1st offense. Under Michigan law, when you rack up a 2nd DUI, meaning any combination of 2 alcohol-related driving convictions within 7 years, you are legally categorized as a “habitual alcohol offender” and your driver’s license is revoked. This is very different than merely having it “suspended.”
Revocation means that your license is taken away for good. Under Michigan law, a revocation is for life, and that means that until you file for and win restoration of your driving privileges through the Michigan Secretary of State, your license will stay revoked, no matter how long you wait. In other words, if you have your license revoked here, in Michigan, and then move to Asia or Europe, where you manage to get a driver’s license, and you live there for 45 years, if and when you come back to Michigan, your license (and, therefore, your privileges to drive) will still be revoked, and can only be reinstated following a successful reinstatement appeal.
The license rules for 2nd offenses require that you wait at least 1 year from the time your license is revoked before you can file an appeal with the Secretary of State. And it gets worse before it gets better: as a matter of practice, the Secretary of State will not grant any license appeal where a person cannot demonstrate a period of “voluntary abstinence,” meaning time where they have not been drinking but also have not been on any kind of probation. This means that you must be off probation for a while to win a license appeal, and since most 2nd offenders get anywhere from 1 to 2 years of probation, the result is that you will not have any real chance of winning your license back for the better part of 2 to 3 years.
It is usually right here where every lawyer gets asked if there is some kind of hardship or restricted license that can be given, just for work.
The answer, without exception, is no.
Now for the good news: many jurisdictions have a sobriety court program, and most of those that don’t are willing to transfer a person’s case to a court that does. Sobriety courts are very demanding educational and rehabilitative programs run by certain courts that have been certified through the state to help people get and stay sober by providing extensive counseling and treatment to those people who know that their relationship to alcohol has become problematic and who want help to get clean and sober.
Sobriety court programs are very intense, but also very successful in helping people finally quit drinking. One of the key benefits to them is that, under the law, a sobriety court Judge can override the Secretary of State’s license revocation and issue a restricted driver’s license to anyone in the program after 45 days. A person on a sobriety court restricted license will be monitored by the Secretary of State and be limited to driving only with an ignition interlock device installed on his or her vehicle. This is a huge break, but it’s not all fun and games.
I’ve noted that sobriety court programs are very demanding and intense. They do NOT represent a convenient workaround for someone to just “get” a license. A person must be screened to see if he or she is a candidate for sobriety court, and a primary focus of that screening is whether the person understands that his or her drinking has become a problem, and is willing to work hard at quitting and staying quit . If so, and if the person really wants it bad enough, and if the Judge agrees, then he or she is admitted. Sobriety court spaces are limited, and, therefore, valuable, so one of the main priorities is to keep out people who aren’t genuinely committed to sobriety and working hard to achieve it.
Sobriety court programs require a lot of time and effort, and the last thing the staff wants to do is give a spot away to some person whose only interest is getting a restricted license. Without an honest commitment to treatment, a person will quickly fail to keep up with the rigorous demands of the program, and therefore fail out. Because these programs are state-funded, they provide loads of valuable services for what amounts to pennies on the dollar. The screeners know how to weed out those people who are more interested in getting a restricted license than genuinely interested in getting help for their drinking.
Despite the almost universal recognition of the benefits of sobriety courts, there always has to be an exception, and in 2nd offense cases, there is at least one local court without a sobriety court program that will not transfer a case elsewhere. That’s really a shame, but it is what it is. To put this in perspective, a while ago, I was in front of a local district Judge on a motion to transfer my client’s case from his court, (that didn’t have a sobriety court program) to another court that did have one. As soon as I made my argument, the Judge agreed to the transfer, and then asked me, somewhat rhetorically, “Mr. Randa, can you think of one good reason why a Judge wouldn’t do this?” I said no, of course, and I honestly cannot think of one good reason why a Judge would deny a proper request to do this, but, as I said, there always has to be an exception.
Earlier in this article, I promised to return to the issue of jail, so let’s do that now:
Everyone arrested for a 2nd offense is worried about going to jail, and that’s understandable. A better consumer will see right through the worn out, thoughtless marketing tactics some lawyer use, and recognize that slogans like “avoid jail,” which so appealing in a 1st offense case, seems rather “cheap” here, in a 2nd offense case. The harsh reality is that there are some Judges who feel that anyone convicted of a 2nd offense needs a little time to sit in a cell and think about things. That said, I’ve walked plenty of clients out of some of those very courtrooms knowing we dodged a bullet.
Still, the fact of the matter is that in any 2nd offense case, jail is on the table, although in any given case, it’s imposition is not etched in stone. In other words, compared to a 1st offense charge, where jail is virtually never ordered, a 2nd offender is much closer to getting some time. More often than not, however, it doesn’t happen. As much as I’d like to say there’s some magic formula for avoiding it and I have the patent, the simple truth is that there isn’t.
I know that when there is any possibility of avoiding jail outright, my team and I are unsurpassed in doing so. However, there are certain Judges here, in the Metro-Detroit area, that will almost always hand out at least a few days to any 2nd offender, no matter who you are or what your story, and any lawyer who says differently is either dangerously inexperienced or a thoughtless liar.
So what’s our takeaway here? Well, there are several: the good news is that jail isn’t handed out in most 2nd offense cases. The bad news is that it can be, and absolutely will be ordered in some cases. The ugly news is that, above and beyond all that, is that your driver’s license will be revoked, meaning taken away for good, with no way to get any kind of “restricted” license to get back and forth to work. This much of “The Good, the Bad, and the Ugly” is consistent, no matter where in the local, Tri-County area a case is pending.
More important, for those who can accept the idea that their relationship to alcohol has at least become “risky” (and it shouldn’t be breaking news that, to the rest of the world, this is a foregone conclusion when you’ve been arrested for a 2nd offense DUI), we can look at the option of sobriety court. In addition to providing extensive help to get past one’s drinking issues, sobriety court participants are eligible to have the revocation of their license overridden and get a restricted license. This not only allows them to drive in the meantime, but offers an incredible advantage when they do become eligible to have their driving privileges fully restored, because all sobriety court participants will eventually have to go through the license appeal process in order to get off the ignition interlock and restricted license.
Of course, there’s more to all of this. There’s always more. I have tried to cover as many related topics as possible within the more than 360 DUI articles I have written and published, so far, on this blog. If you’re facing a DUI, whether it’s a 2nd offense or any other, read around. If you’re looking to hire a lawyer, be a good consumer and then check around. All of my consultations are confidential, and done over the phone, right when you call. We’re here Monday through Friday, from 8:30 a.m. until 5:00 p.m., and can be reached at 586-465-1980. We’re really friendly people, and we’re here to help.