Michigan Criminal Defense Lawyer Blog
In Part 1 of this article, we began our examination of a 2nd Offense DUI in the District Courts of Macomb, Oakland and Wayne Counties. We looked at the general ideal of “avoiding Jail,” and began looking at the real sleeping giant in any 2nd Offense case: The issue of a potential drinking problem. We ended Part 1 by transitioning from just staying out of Jail to avoiding as many of the other potentially burdensome consequences of a 2nd Offense DUI case as possible. We talked about avoiding all the conditions of “Probation from Hell.”
But to do that, certain things need to be understood.
Chief amongst them is that in a 2nd Offense DUI, the Law REQUIRES that a person be Ordered into some kind of Counseling. A 2nd DUI within 7 years makes a person a “Habitual Offender” under Michigan Law. This means there is a presumption that they have an alcohol problem. It seems that the lawmakers paid some attention to statistics, as well.
And all of that means that unless the case gets “knocked out” somehow, the Judge will absolutely be Ordering the person into some kind of Counseling.
About the worst legal strategy a person can have is to simply show up on the day of Sentencing and wait to see what happens. On par with such an utter lack of a plan is to show up at Sentencing, and then, in the hopes of staying out of Jail, tell the Judge something meaningless, like “I’m willing to do whatever it takes” or “I am willing to go to Counseling,” or, worse yet, to admit, as if in a moment of sudden but ridiculously delayed realization, that “I know I have a problem.” This is just being reactive, albeit in a rather dim-witted and slow kind of way.
Instead, the Client should be guided into Counseling before they ever wind up in front of the Judge. Not only will they be able to pick out a Counselor who is more affordable and convenient for them if they take the initiative and start early (meaning they won’t just get stuck into some “one size fits all” Counseling program the Court Orders, regardless of how convenient or not it is for the person), they will also score big time “brownie points” for having recognized the need for help early on, and having done something about it. I can and do use such proactive actions to my Client’s decided advantage throughout the case.
This works even for those who firmly believe that they don’t have any issues or problems with alcohol, because the Law requires everyone with a 2nd Offense to get into Counseling no matter what. A person’s self-assessment is NOT part of this equation. This is part of the way a DUI Lawyer helps his or her Client make things better. This is what the “Attorney” part of the title “Attorney and Counselor at Law” means.
The “Counselor” part of that title is often overlooked. To me, that part of the title means helping the Client as a person, and not just in regard to their legal situation. In a DUI case, and especially in a 2nd Offense case, and with the specialized knowledge about alcohol problems that I bring to the table, I have to be there to help my Client take a look at his or her drinking. Notice I did NOT say something like “help my Client deal with his or her drinking problem.” Within the legal context, I have to help my Client understand how the system views them, and how to navigate the byways of the Criminal Justice system to produce the best result. That means I have to at least get them past saying anything stupid in Court, like “I don’t have any kind of problem.”
Yet as a person, as the “Counselor” part of that “Attorney and Counselor at Law,” I have no such agenda. With my background in alcohol and substance abuse issues, I am constantly trying to learn more about this field, and almost always have my nose in some book or other about alcohol and drug problems. As of this writing, I’m headlong into a very helpful textbook called “Treating Alcoholism: Helping Your Clients Find the Road to Recovery” by Robert R. Perkinson, PhD (2004; Wiley Books). Although it’s target audience is primarily alcohol (and drug) Counselors, my particular Clientele and line of work make it exceedingly relevant to me, as well. Perkinson reiterates the fundamental, although often forgotten axiom that anyone facing an alcohol problem they might not have yet come to grips with does NOT need to (and should not) be scared off by being “told” that they have a problem, or that they need to understand that they do, or need to do something about it, or otherwise be hit over the head with some notion they are not yet ready to consider, much less accept.
This is important, and is exactly what I meant two paragraphs above when I pointed out that I have to be there to help my Client merely take a look at his or her drinking, as opposed to thinking that I have to help them “deal with it.” For all the clinical terminology and practical wisdom out there about helping someone face a potential drinking problem, nothing says it better than the age old saying my own mother used to repeat all the time: “You can lead a horse to water, but you can’t make him drink.” Instead of trying to convince anyone they have an alcohol problem (in fact, it is exactly in the nature of an alcohol problem for the person to deny it, and to be able refute, point by point, any evidence supporting such a notion), it is my job to give them the tools they can take away for their own self-assessment. They might never come to the conclusion that they have a problem, or it might take years for them to do so. We must also consider that they might be part of that group that DOES NOT have a problem. Yet as a person, and as one who is at least part “Counselor,” I would be disregarding my moral obligation if I didn’t at least share, in a non-judgmental, non-confrontational way, a few things a person should take with them as food for thought.
This contrast between what I see as my legal, Lawyer obligation to my Client and my moral, “Counselor” obligation to a fellow human being who has come to me for help actually creates a happy middle ground, or “no mans land” in which I can satisfy both things simultaneously. And given that the Judge will have already concluded about any 2nd Offense Drunk Driver that they have a problem before he or she even meets them, I have to introduce the Client to certain concepts anyway.
On top of all of this, the State Revokes a 2nd Offender’s Driver’s License for at least one year. The person must file (and win) a Driver’s License Restoration Appeal with the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) in order to win back their License. The 2 most important issues in such an Appeal is that the persons alcohol problem is under control, and “likely to remain under control,” which translates to their being a demonstrably safe bet to never drink again. Anyone who has lost their License for multiple DUI’s is going to have to come back and not only admit they have a problem, but show what they’ve done about it and why that should all amount to their being a safe bet to remain alcohol free. To put it another way, the state needs to be convinced that the person is convinced that they can never safely drink again.
Therefore, the whole issue of an alcohol problem is not only relevant to a 2nd Offense DUI, it is central to properly handling it. This is true even if the person facing the charge is completely convinced they don’t have any kind of problem, or even if they are in that percentage of people who actually get a 2nd DUI and really DON’T have a problem. After all, such people do exist.
In my Office, the first appointment with any new Client lasts at least 2 hours. I’ll have lots to go over with my Client, and lots to learn about and from them. Ultimately, we work to make sure the Client can avoid Jail. Beyond that, it would be a shallow victory to avoid getting locked up only to be placed on some unbearable, never ending, killer kind of probation.
In the modern DUI world, many (although not all) people wind up getting stuck on breath or urine testing as a condition of getting out of Jail after an Arrest. Anyone reading this who has such a Bond condition is no doubt rather anxious to get rid of it. That’s where I come in.
Going back to the whole “Attorney and Counselor at Law” thing again, the primary reason anyone hires a Lawyer (Attorney) is to keep trouble at bay; to make things better. Yet the Counselor part means helping the Client understand, without being confrontational or judgmental, the larger legal and personal consequences that come along with a 2nd Offense DUI, and at least giving them some “food for thought,” or some tools, by which they can assess things and make informed decisions about those things.
In the end, most people can be kept out of Jail. What might at first seem like the end of the world turns out to be a regrettable headache, but not much more. For some, a 2nd Offense DUI can mark the moment they pound their fist on the table and say “enough is enough,” or as the AA people often recall it, the moment they “got sick and tired of being sick and tired.” Other people who don’t have a drinking problem are, in fact, just unlucky, and will have to face the bitter and expensive reality of a second episode of bad judgment, and make the necessary adjustments to make sure it never happens again.
Whatever else, a 2nd Offense DUI is serious business, but it can also be the starting point for better tomorrows.