Michigan Criminal Defense Lawyer Blog
This is the second installment in our series about getting out of a Michigan DUI charge as quickly, painlessly and completely as possible. In part 1, we looked at how the intelligent management of time can help produce the best outcome in a DUI case, noting that merely being done with it quickly isn’t usually the optimum way to do that. We saw that what matters most is properly handling the element of time in order to produce the very best result. In this piece, we’re going to look at getting out of a DUI case painlessly, which, in large part, means avoiding consequences.
As Michigan DUI lawyers, my team and I live by the standard that success in a DUI case is best measured by what does NOT happen to you. That sure sounds great, but what does it really mean? In short, it means avoiding punishment, and dodging potential legal penalties and negative consequences. To understand this better, we first have to jump ahead and look at what it means to get out of a DUI charge as completely as possible, because that will help us grasp the larger concept of painless, and why it’s so significant.
It’s a given that everyone would like to have their whole DUI charge just “go away,” but the fact is that that more than 9 out of 10 cases brought in Michigan do NOT get tossed out of court. The question, then, is how do we define success in them? What is the difference between an outcome that’s bad, good, or better? In every DUI case that doesn’t get dismissed outright, getting out of it as “completely” as possible means, in a certain sense, getting out of it as painlessly as possible. Although the terms aren’t synonymous, painless, as used here, means escaping as many potential legal penalties and negative consequences as one can.
This is really important stuff, and in the following paragraphs, we’re going to look at some examples of how it all works, because it has pretty general application to anyone facing a DUI charge, and/or looking for a DUI lawyer, at least here, in the Greater-Detroit area of Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair and Washtenaw counties, where my team and I concentrate our DUI practice.
Some things aren’t obvious at first glance, and what may initially seem like the most painless resolution of a pending DUI charge can easily turn out to be the wrong choice for many people. Here is an actual situation that my team and I have encountered a number of times, including recently:
As a general rule, it is difficult to plea-bargain a 2nd offense OWI (Operating While Intoxicated, the proper legal term for what we all just call a “DUI”) down to a 1st offense, even though they are both misdemeanor charges.
In fact, at least in some of the aforementioned counties, it is often easier to plea bargain a 3rd offense, felony DUI down to a 2nd offense misdemeanor DUI. There are many reasons for this, all of which go beyond the scope of this example, but what’s important for our discussion here is simply that, by and large, a 2nd offense DUI charge is not likely to be negotiated “down” to a 1st offense.
A 1st offense DUI, whether a straight up OWI charge, or the even less serious charge of OWVI (Operating While Visibly Impaired), each carry a maximum of 93 days in jail.
- OWI will put 6 points on a person’s driving record, and carries a maximum fine of $500 plus costs.
- OWVI will add 4 points to a person’s driving record, and carries a maximum fine of $300 plus costs.
By contrast, the maximum penalty for a 2nd offense OWI conviction is up to 1 year in jail, and a conviction will add 6 points to a person’s driving record. It also comes with a potential maximum fine of $1000, plus costs.
In theory, getting a plea bargain from a 2nd offense OWI charge down to any kind of 1st offense seems really great. After all, the maximum possible jail sentence for a 1st offense is only 1/4 of what it is for a 2nd offense, and the fines and costs are much lower, as well.
However, when you dig in a bit, you’ll learn that, at least here, in the Greater-Detroit area, many courts aren’t dead-set on imposing any jail time in 2nd offense cases and can be “persuaded” out of doing so.
Moreover, even those courts that do dole out a bit of time for 2nd offenders tend to measure it in days, not months.
Now, hold that thought, and consider this: Driver’s license penalties are imposed automatically by the Michigan Secretary of State, and, in 2nd offense cases, are done SOLELY based upon the number of convictions a person as accumulated within the previous 7 years.
By law, a 2nd conviction for ANY alcohol-related (DUI) offense within 7 years of a prior DUI conviction, EVEN IF it is one that has been plea-bargained down to a 1st offense, will and must result in the revocation of a person’s driver’s license.
As a practical matter, and even under the best conditions, anyone who loses his or her license for 2 DUI convictions within 7 years won’t be able to legally drive again for AT LEAST 3 years, and often longer.
Now add this into the mix:
In many 2nd offense DUI cases, we can get our clients into a Sobriety Court program, which offers intense treatment, almost without cost, and, in exchange for a person’s participation in that, he or she can get a restricted driver’s license after about 30 days.
Although the law itself doesn’t preclude anyone convicted for a 1st offense from participation, most Sobriety Courts will ONLY consider admitting people actually convicted of a 2nd offense for enrollment.
Here’s what that all means:
It sure sounds good to say that someone charged with a 2nd offense DUI got a plea bargain down to a 1st offense case, but is it really that great a deal if, by comparison, a 2nd offender can get into Sobriety Court, gets (basically free) treatment, keeps his or her driver’s license, whereas someone convicted of a second 1st offense after this kind of “bargain” will also be ordered into counseling or treatment, except they’ll have to pay for it out-of-pocket, and will have his or her driver’s license revoked for years to come?
The couple of hundred dollars saved in fines and costs by getting a plea-bargain to a 1st offense will likely be spent in the first few months (if not weeks) of trying to get around without a license, and that expense and nightmare of not being able to drive will persist for a very long time.
In fact, winning back a driver’s license after is has been revoked is a HUGE deal, and requires, among a boatload of other things, proving to the Michigan Secretary of State, by what the law specifies as “clear and convincing evidence,” that the person has quit drinking years ago and has remained completely sober and abstinent from alcohol and all drugs (including recreational marijuana) ever since.
This sobriety requirement is absolute, and demanding, and it leaves a lot of people with little chance to legally drive again in the next 10 or more years, and others (meaning anyone who really hasn’t quit drinking for good) with no chance to ever get their license back.
In one sense, getting a plea bargain from a 2nd offense to a 1st offense is good, but we can see that it is not always the biggest deal in the world. In other words, it can sure sound a lot better than it actually is.
Now with that as our backdrop, imagine 2 strangers meeting on a park bench one day, and, as they speak, they discover that each got arrested for a 2nd offense DUI at about 9 years ago, so they start talking about their cases.
The first person says, “Man, I had a great lawyer. he got my 2nd offense pled down to a 1st offense, and that saved me hundreds of dollars.”
The second person says, “My lawyer had a chance for that same deal, but she suggested I pass on it and get into a sobriety court, instead. I did that, and I got my license back right away. I had a restricted for about 2 years, then I got my full license back about 7 years ago.”
The first person complains that he hasn’t had a license ever since his last DUI, and has had a nightmare of a time getting around. “But,” he points out, “at least I didn’t do any jail time.”
The second person replies, “Neither did I.”
The first person gasps, “what?” and his eyes go wide….
So who go the better deal?
If success in a DUI case is measured by what does not happen to you, and the key goal is to get through it with the fewest possible consequences, then the 2nd person seems to have done far better.
Sure, the 1st person can say he got a better “bargain,” meaning plea bargain, but that sure did not translate into a better result.
The example above is just one of countless ways DUI cases can play out, but the larger point is that getting out of one as painlessly as possible really means avoiding consequences and causing the smallest amount of disruption to your life.
Consider this: Almost without exception, everyone going through a DUI is going to wind up on some kind of probation. This is especially true in 1st offense cases, where probation can either be short and simple, or it can be longer, and more demanding.
Who would rather be on probation longer, and have to do more counseling or treatment and testing, as opposed to getting a term that’s shorter, and requires less, like a simple, single alcohol education class?
Although it sounds like a broken record to say it again, this all sounds good, but, the question becomes, is there anything more to it than just talk? After all, DUI lawyers are notorious for making it sound like they can just make everything “go away.”
How do we transform all the talk about “as painless as possible” and “fewest consequences” and avoiding penalties into a reality?
By hard work, and lots of it.
It is a simple truth, but good work is the key to good fortune.
My team and I intelligently dig and fight and persist and plod and scrape away, always working toward that goal of the best outcome for each of our clients. Critical to that, though, is doing so intelligently.
A DUI lawyer can fight any and everything, but an intelligent defense strategy has a lot more to it than just fighting for the sake of fighting.
Instead, all options must be explored in order to form a smart plan. As the example above demonstrates, everything must be also considered in context.
Here’s one last example:
Imagine those same 2 strangers meeting on the park bench, discussing their 2nd offense DUI cases from about 9 years ago:
The first person says, “Man, I had a great lawyer; he got my 2nd offense charge reduced to a 1st offense!”
The second person asks the first, “Did you get any jail time?”
The first person says, “Yeah; I had to serve 24 days, and that part sucked; what about you?”
The second person then replies, “My lawyer didn’t get me a plea bargain, but she got me a sentence deal to straight probation, with no jail.”
The first person turns his head and asks, “You mean you didn’t do any time?”
The second person responds, “Nope.”
Thus, exploring all options means just that – exploring every possible way to produce the best outcome. A plea bargain sounds great – and it usually is – but what ultimately matters is the end result. A DUI will affect your life, but the less it does, the better,
For everything we could say, we return to our gold standard: Success in a DUI case is best measured by what does NOT happen to you.
That’s what avoiding consequences and getting out of a DUI charge as painlessly as possible is all about.
We’ll return in part 3 to look at the larger meaning of getting out of a DUI as completely as possible.