Michigan Criminal Defense Lawyer Blog
This installment will return to the subject of 2nd Offense Drunk Driving, or Operating While Intoxicated (OWI) charges. As a DUI Lawyer, my actual Practice is limited to handling cases in the District and Circuit Courts of Macomb, Oakland and Wayne Counties. I point that out because what I write here is the product of my experience in these Courts. I have no idea how things are handled elsewhere, and the outcome of any case pending beyond the Tri-County area might be very different from what I describe here.
I think it’s fair to say that everyone knows that there are essentially 3 kinds of DUI cases: 1st, 2nd, or 3rd Offenses. And everyone pretty much likewise knows that a 1st Offense is generally not that bad, and a 3rd Offense is a Felony, and a nightmare to boot.
What about 2nd Offenses?
The first thing to say about a 2nd Offense is that (if the case is not one of those few that are “beatable”), then how bad things will turn out for the Driver depends more than anything else, on where (what City) the case is pending. Certain Courts are just plain tougher on any DUI than others. In fact, a few Courts are WAY tougher on DUI’s than all the others. In the interests of good Lawyer diplomacy, I’ll say no more on that subject here.
Another very important thing about 2nd Offense cases, completely independent of where they’re pending, is that they represent the crossroads between having a serious alcohol problem, or not. Statistically speaking, anyone facing a 2nd Offense DUI has a much-elevated likelihood of having an alcohol-problem compared with the general population. In fact, a 2nd Offense automatically causes a person to be categorized as a “Habitual Offender” under Michigan Law. Amongst the many implications of that categorization is the Mandatory Revocation of the Driver’s License for at least 1 full year.
For anyone facing a 2nd Offense, beyond the relative leniency or toughness of the particular Court where their case is pending, the issue becomes whether or not this charge is the symptom of a much deeper alcohol problem, or is rather a case of repeat poor judgment. Try to imagine the Judge’s perspective: Every single 3rd Offense Felony Drunk Driver was, before that, a 2nd Offense Drunk Driver who probably said something like “it won’t happen again.”
Even if a person does not have an alcohol problem, it’s hard to deny that they look, at least to a Judge, like they have a problem obeying the law. From a Judge’s point of view, what’s the difference whether a person picks up a 2nd DUI because they have an alcohol problem, or an attitude (following the law) problem, or just exercises poor judgment? The person has demonstrated that they are a DUI risk, and, understandably, public safety concerns begin to trump all other issues.
I often explain to my Clients that facing a 2nd Offense DUI is very much facing a real Jail sentence. As I mentioned, there are some Courts (that I won’t go to for any amount of money) so tough that anyone convicted of a 1st Offense is almost certain to get some Jail time, and for a 2nd Offense is 100% guaranteed to spend some significant time in Jail. In other Courts, whether a person winds up in Jail or not depends on how things play out, while in a few, unless things go badly for the Defendant, seeing any jail time is not a substantially probability.
In the Tri-County area, I think it’s fair to say that the majority of Courts fall into that middle ground, meaning that the likelihood (or not) of going to Jail really depends on how things play out, and that, more than anything else, depends on how things are handled.
When I meet with a Client facing a 2nd Offense DUI, I tell them that we have to swing into action. Unless you have a plan to get the case dismissed, then being proactive, right at the outset, is the best (and only) plan to avoid spending any time in Jail.
For example, the Law requires that anyone convicted of a 2nd Offense DUI must undergo mandatory alcohol counseling. So why wait for the Court to assign some program that could be expensive, far away, and inconvenient? Why not get a jump start and get into a program that is affordable, nearby, and convenient, especially when to do so will help out in the early stages of the case? From my experience, it’s far easier to try and negotiate with the Prosecutor for a “No Jail” deal, or at least get them to back off on calling for incarceration, when I can show that my client has essentially “taken the bull by the horns” and has demonstrated the fortitude to quickly get into a program and get some help.
Anyone arrested for a 2nd Offense DUI is in an unenviable position, but that doesn’t mean it’s time to roll over and play dead. Instead, that arrest should be the starting point for taking the appropriate, remedial action.