Michigan Criminal Defense Lawyer Blog
A Second Offense DUI is serious business. Anyone facing this charge does not need to be scared out of their wits by laundry listing all the bad things that can happen. This article will take a realistic look at what will happen to a person facing a 2nd Drunk Driving charge, as well as how this charge is viewed by the Courts. As bad as it can be, a 2nd Offense Drunk Driving is NOT the end of the world. In order to properly cover this topic in sufficient detail, this article will be broken into two parts
In that regard, geography plays a prominent role in how things will turn out. Where a DUI takes place has as much, if not more to do with what will happen to a person as anything else. Beyond anything else, a 2nd Offense DUI really raises red flags about a person’s alcohol use, and invariably signals a potential, if not likely drinking problem.
The first concern anyone has when facing a Second Offense Drunken Driving charge is whether or not they’re going to Jail. This has to be a starting point for any worthwhile discussion of Second Offense cases. Imagine if this article began by discussing Fines and Costs… Who care about Fines and Costs over Jail? Avoiding Jail is always the first order of business. Once the way has been cleared for that, minimizing all the other consequences that can follow a DUI Second Offense charge becomes the next order of business.
One of the best ways to avoid Jail is to avoid the whole DUI charge. Every single aspect of the case must be put under the microscope, so to speak. Why was the person stopped? Was there a cell phone tip? Is there Police car video? How were the Field Sobriety Tests conducted? Were the performed on a level surface, in decent weather, or on angled or uneven pavement, and/or in bad weather? What about the Breath Test? Was a Breathalyzer test administered? How long after the Arrest? Was the test conducted properly? Was the Breathalyzer machine properly calibrated? Was a blood test taken, instead? What were the results, and was there anything that could affect the accuracy or reliability of those results?
There are countless things, large and small, that can affect how strong or weak the evidence in any DUI charge may be. Often, cases that seem clear-cut might be compromised with an almost hidden defect in the evidence that cripples the Prosecution’s evidence. Other cases might seem, at least to the person facing the charge, fraught with problems, yet turn out to be far stronger than they might at first appear. The key is to look, and look carefully. If you don’t look, you won’t find…
Yet the statistical truth is that most DUI cases do not get tossed out on such technicalities. It is important to be vigilant, and okay to be hopeful, but being realistic is also important, as well. The whole point of the evidence gathering process and the rules that govern it is to make sure that a person doesn’t get convicted of an Offense they didn’t commit. In DUI cases, we look more to the rules surrounding the gathering of incriminating evidence than anything else. The fact is, not many people show up at a Lawyer’s Office and claim that there is no way they could have had too much to drink.
If the case holds water, then we begin looking at other ways to keep the Client out of Jail. As a blanket observation about a 2nd Offense DUI in most Tri-County Courts, a person can often (although not always) be kept out of Jail. The reader is no doubt wondering, “what about me?”
I have handled DUI cases in the Tri-County area for 22 years, but I learned in my first few weeks that Oakland County is the toughest, by far, of the three Detroit-area Counties. Most readers already know this. This general “toughness” of the Oakland County Courts applies to every kind of Criminal case, not just Drunk Driving charges.
Macomb County has, in my estimation, the best approach to DUI cases, including 2nd Offenses. Wayne County is not far behind, but given the rather wide swath of land and diverse population that it encompasses, it’s only natural to expect a similarly wide range of approaches to DUI cases, particularly 2nd Offense cases.
As I noted above, what happens to a person for their second Drunk Driving is in large part a function of where the case is pending. About the toughest place to find oneself is the 48th District Court in Bloomfield Hills. Given that one of the Judges there has received a lot of recent press for her mandatory Jail Sentences for first Offenders, second-time Offenders have good reason to cringe. Fortunately, plenty of other Oakland County Courts aren’t nearly as tough.
Perhaps the biggest surprise is the 36th District Court in Detroit. At best, it can be characterized as unpredictable. The short version goes like this: The Detroit Police don’t have quite enough manpower to timely respond to B&E’s that are called in. They have to prioritize which calls they respond to. They really don’t have “patrols” like suburban communities. Every car in their department is going from one run to the next, so unless they just happen to cross paths with a Drunk Driver, very few people find themselves Arrested for a DUI by the DPD. Those comparatively few DUI cases arising in Detroit are the result of State Police patrols, often on the freeways.
This means that a typical 36th District Court Judge may see more violent crimes in any given month than they see DUI’s in a year. As a result, they not only have less experience with DUI cases than their suburban counterparts, but they generally have less specific understanding of the progression of an alcohol problem than a typical suburban Judge. Suburban Judges have time to learn about this stuff, and it is a big part of what they do. Detroit Judges spend more time handling the legal intricacies of really serious offenses. From my point of view as a DUI Lawyer, this means what will happen can vary more from Courtroom to Courtroom in Detroit than it ever will in any multi-Judge Court in the suburbs.
Most Macomb County District Courts take a decidedly rehabilitative approach to 2nd Offense DUI cases. While still solidly suburban in their dispositions, and firm in their Orders, the Macomb bench seems most intent on helping a person overcome whatever led to a repeat performance of the whole Drunk Driving thing. This means that staying out of Jail in Macomb County is more predictably achievable, if not simply more likely, than in Oakland or Wayne Counties.
Once we move past the punishment aspect of a 2nd Offense DUI, the rehabilitative component takes center stage. This is for good reason. While statistics are always subject to interpretation, anyone educated in this field knows that it is rather well-settled that anywhere between 70% to 82% (depending upon which set of statistics you rely) of all 1st time DUI Offenders have an alcohol problem. It doesn’t take a rocket scientist to figure out that those numbers rise dramatically when you’re talking about 2nd time Offenders. Every Judge alive knows this. This is a truth from which a person cannot hide, and running from it only complicates things.
“But I don’t have a drinking problem. It’s just that, on the night of that last DUI, I was…”
Remember those Charlie Brown shows? Remember his teacher? She never spoke a word; her voice was a trombone that went “wah wah wah wah wah.” That’s what anyone trying to explain a 2nd DUI sounds like to a Judge. And any Lawyer who fails to help the Client this understand that is either completely inexperienced, or just too afraid to offend a potential new Client and lose out on the Fees. If I was facing a 2nd Offense DUI, I’d rather have my feelings hurt and my ego bruised by my Lawyer, rather than have my butt locked up by the Judge. This is where I part ways with many of my contemporaries. I’m polite and diplomatic and respectful, but I’m also paid to make things better, and I cannot do that without being candid and direct.
For the last 20 years, I have made the study of the onset, development, diagnosis and treatment of alcohol problems a centerpiece of my work. How can anyone be a “DUI Lawyer,” meaning at least 70% of their 1st time Clients have an alcohol problem (with the percentage skyrocketing for those with 2nd and 3rd or subsequent Offenses), and not have a fundamental, working knowledge of that underlying problem? In my case, another very large part of what I do is Driver’s License Restoration for people with multiple DUI convictions. In that part of my Practice, 100% of my Clients have to prove their Recovery from a drinking problem.
This background helps me help my Client. If you pay someone for help, then you should be told what you need to hear, not just what you want to hear. Sugar-coating the truth or soft-pedaling the reality of a situation only helps Lawyer sign up new Clients who like what they hear. I have never been about just telling anyone what they want to hear. It does nothing to help my Client. Sometimes the truth is unpleasant, but to be blunt about it, it beats the hell out of an unpleasant surprise later on.
“The last thing I need is some Lawyer playing therapist and preaching to me about my drinking. I just want a Lawyer to get me out of trouble, not give me more of it!”
I completely agree with that sentiment. This is where the ethical and legal jobs of a Lawyer run along separate, although more or less parallel lines. Job one is to keep the Client out of Jail. The next order of business is to avoid as many of the other potential consequences (like Probation from Hell) a person might face in a 2nd Offense DUI situation.
In Part 2 of this article, we will resume by continuing our examination of the “other” consequences of a 2nd Offense DUI that can and often do follow once the Jail part of things has been avoided or eliminated. We’ll also look at the undeniable issue of a potential drinking problem that is inherent in any 2nd Offense case.