DUI in the Detroit Area – Is it a 2nd Offense, or not?

A fairly common question that arises in my DUI Practice is whether a Client’s prior DUI occurred more or less than 7 years before the current case for which I am being hired. This is important, because a 2nd DUI within 7 years is treated as a 2nd Offense, whereas if the DUI occurs even 1 day past the 7-year mark, it is treated, by law, as a 1st Offense.

The consequences of a 2nd DUI within 7 years are substantial, at least when compared to those imposed in a 1st Offense case. While everyone’s first concern is, understandably, to stay out of Jail, as a Lawyer for whom a substantial part of his Practice is Driver’s License Restoration Cases, I tend to look a little deeper and worry about long-term consequences, as well.

scotch2.jpgIn that regard, the DUI consequences to Driver’s License is perfectly clear: If a person is convicted (meaning they are found guilty of, or otherwise plead guilty to) 2 alcohol-related Offenses within a 7-year Period, their License will be Revoked. Technically speaking, that Revocation is for life. Although they become eligible to file for a License Appeal after 1 year has passed, if they do not file, and win, and no matter if 50 years go by, they cannot ever simply go to the Secretary of State and “get” a License. They must file for and win a License Appeal, first.

This becomes even more troublesome when you add in that the Secretary of State DOES NOT grant a License back to a person who is on Probation. In order to win a License Appeal, the Secretary of State requires a person to prove a period of voluntary abstinence, meaning a period of Sobriety where they were NOT subject to any legal or punitive consequences for drinking. This means that even if a person is not tested for alcohol, the State will deem any period of time that they were on Probation as NOT a demonstrable period of voluntary sobriety.

When you factor in that most Probationary Sentences in 2nd Offense cases are for 2 years (although it can sometimes be limited to just 1 year, particularly in Macomb and certain Wayne County courts), this means a person will be without a License for at least 2 ½ to 3 years. To me, that’s a huge consequence, and perhaps the biggest (and certainly the longest lasting and most expensive) of them all.

The best way for me to determine if a person has had a prior DUI within 7 years, unless the Client is absolutely sure of the dates, is to review their Driving Record. In another blog article, I described how a person goes about obtaining their Driving Record for a License Appeal, but the same process applies for any reason a person may want to examine it, or have their Lawyer look it over.

In those cases where a person is close, but not over the 7-year mark, they often ask if delaying the case might somehow help. The application of the 7-year rule is not flexible, however. The State takes the date of a prior conviction, meaning the date a person pled guilty to or was found guilty of a prior DUI (which is always AFTER the Arrest date) and measures forward 7 years. Another DUI Arrest (NOT conviction) within 7 years falls within the rule.

For example, if Driver Don was convicted of a 1st Offense DUI (meaning OUIL, OWI, Impaired Driving or even a “Zero Tolerance” (person under 21 with BAC .02 to .07)) on July 1, 2004, and he is arrested for another DUI, whatever the charge, on June 30, 2011, he will be charged with a 2nd Offense. However, if he is arrested on July 2, 2011, or at anytime thereafter, he can only be convicted of a 1st Offense.

Notice I said “convicted.” Excessive charges happened from time to time, and it cannot be merely left to the Arresting Police Officer to do the math and hope he or she gets it right. While the Police usually do get it right, it is always important to review the Client’s Secretary of State Driving Record to make sure a 2nd Offense charge is correct.

Beyond the 1st Offense “charge,” the person will have available all the plea options that a true 1st Offender has, including, if applicable, the ability to avoid the OWI charge altogether and deal with an Impaired Driving, instead.

Moreover, the person will AVOID the mandatory 1-year Revocation of their License, and will face the far less severe License Penalties for 1st Offenses, whether that is the 90 day Restriction for Impaired Driving, or the 6 month deal (1 month NO driving, 5 months Restricted) reserved for straight-up OWI cases.

There are numerous other benefits, as well, including substantially reduced Driver Responsibility Fees, and lower Fines and Court Costs.

One thing that cannot be escaped, however, is the fact that the Court will know the person had a prior Offense. Even though the legal consequences are limited to what can be imposed upon any 1st Offender, if a 2nd Offense happens within about 10 years of a prior, pretty much every Judge is going to think “something ain’t right here….”

And that means the Client and the Lawyer have to work extra-hard to minimize negative consequences. To think that a Judge will treat such a case in exactly the same way they’d treat a true 1st Offense, where it can often be presented that a DUI is really an out-of-character, isolated incident, is misguided.

Accordingly, the person must really spend the time necessary to do well on the Alcohol Assessment that is required in every DUI case. This is especially true because, as anyone who has gone through this before already knows, one of the questions on that Alcohol Screening is some version of “Have you ever been Arrested for an alcohol-related Traffic Offense? If so, how many times?” And by answering “2,” a person has just eaten up ALL the headroom they have in the scoring of that test before they are found to have a Drinking Problem. This means that if they score anymore points on anymore questions, they’re going to be treated (meaning Counseling and Classes) as someone who clearly has an alcohol problem.

This is where finding the right Lawyer becomes very important. I think it goes without saying that a person facing any DUI should hire a DUI Lawyer, but with a prior Offense on their Record, especially one within the last decade, it become even more important to be represented by a real, bona-fide DUI Lawyer who not only can examine every way to get the case “knocked out” (although such outcomes are far more the exception rather than the rule), but also knows the nuances of the alcohol assessment process thoroughly.

Finding that Lawyer takes work. Catchphrases like “tough,” and “aggressive” sound great, but, in truth, you’ll seldom find those terms used by top notch DUI Lawyers in describing themselves. Hyundi and Suzuki will tell you how great their cars are, but Mercedes and BMW don’t have to. Finding the right Lawyer means reading what they’ve written, learning how they approach these cases and how they handle them, and then picking up the phone and calling around. Even amongst the top-shelf Lawyers, personalities differ, and the best Lawyer for one person may not be the best for another.

If a person is not sure if a prior DUI falls within the 7-year period, they should get a copy of their Driving Record. As we have discussed, even if a prior Offense does occur outside of the 7-year period, it should be approached differently that a true 1st Offense case.

In the end, it does matter if a DUI is brought as a 2nd Offense, but even if it is not, handling it properly still requires an extra degree of care and experience.