Michigan Criminal Defense Lawyer Blog
As a full time Michigan Driver’s License Restoration and DUI Lawyer, I deal with the implications of a Second Offense Drunk Driving charge daily, and in different contexts, as well. As a Michigan DUI Lawyer, I am involved, nearly from the beginning of a 2nd Offense case, to guide my Client through the Court process. In that role, my job is to take a case and put it under the microscope and look for those flaws in the evidence that can be used to get the charge dismissed, or at least reduced. As a Driver’s License Restoration Lawyer, I help explain how that 2nd DUI was often the catalyst for my Client to recognize that they had a drinking problem.
Attitude is important. A DUI Lawyer must go in to a case expecting to find some problem with the evidence, or how it was gathered, and not just wait for the obvious to jump out of the file. I often point out that DUI cases don’t dismiss themselves. If you want to find a defect in the case, you have to look for it.
That said, by the time anyone is out of Jail and looking for a Lawyer, the facts of the case have been set in stone. What happened that resulted in the DUI Arrest happened; now, we’re looking backwards in time to see if the legality of what happened holds up under the law.
The same thing holds true a few years later, after a person becomes eligible and ready to file a Michigan Driver’s License Restoration Appeal. A person who has lost their License for multiple DUI’s has, in the meantime, either gotten Sober, or not. When someone calls my Office about a License Appeal, and I ask about their Sobriety, they either have it, or they don’t. These facts are also set in stone.
My differing roles as a Michigan DUI and Driver’s License Restoration Lawyer requires me to have certain differences of personality, as well. As a DUI Lawyer, I am the Lawyer, first and foremost. In a certain sense, I am a hired gun. My first mission, once hired in a DUI case, is to find some way to beat the case, or at least do serous damage control. When I can exploit a flaw in the evidence, or the way it was gathered, and manage to get the case “knocked out,” I do just that. I am hired, really, to make as much of a DUI go away as I can.
Yet there is a whole other side to this, and to me, as well. If a person picks up a 2nd DUI within 7 years, Michigan Law concludes that they are what’s called a “habitual offender,” and presumes that they have an alcohol problem. When that same person comes forward a year to two (or three of four, or even more) years later, to have their License Reinstated, the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) will require that the person prove, by “clear and convincing evidence,” that their alcohol problem is “under control, and likely to remain under control.” This means that I also have to work under the legal presumption that a person with a 2nd (or subsequent) DUI has an alcohol problem.
Does this mean, then, that if a person picks up a 2nd DUI, but I manage to get it dismissed because of the way the Traffic Stop was conducted, that they suddenly do not have a drinking problem they would have otherwise had if the case didn’t get thrown out? Of course not. If we think about it, a drinking problem exists independent of a successful legal challenge to a DUI Traffic stop. It’s not like a person can only have a problem if the evidence sticks.
If I get a case knocked out for some evidentiary or legal reason, then I feel it is my moral obligation, as a DUI Lawyer and fellow human being, to suggest the person take a hard look at their drinking behavior, and maybe ask themselves some tough questions. I don’t preach; preaching is a sure way to drive people away. I simply help a person take a step back and take a more objective look at themselves.
In a Driver’s License Restoration case, I require that anyone be Sober before they can become my Client. In exchange, if I accept their case, I Guarantee that I will win it, and get them back on road. In this setting, I am assessing if a person has accepted that they have an alcohol problem, and how much they’ve done about it.
In a DUI case that does not get tossed out based on some problem with the evidence, my role shifts to damage control, meaning bringing about the best legal outcome possible, and making sure that the Client avoids as many of the consequences of a DUI as possible. To do that, I have to begin working with the Client to understand that the whole Court system will treat them as if they have a drinking problem. This isn’t just the way I perceive things, either. Part of that whole “habitual offender” concept and the accompanying legal presumption that a person with a 2nd DUI has an alcohol problem is the requirement, under the Law, that a person be Ordered to complete some kind of alcohol counseling.
Thus, in a 2nd Offense DUI case with evidence strong enough to keep it from being dismissed, or in a Driver’s License Restoration case, my involvement with the Client takes into account a drinking problem. In a Driver’s License Restoration case, we are dealing with a drinking problem that must be, in order to win the case, “under control, and likely to remain under control.” In a 2nd Offense DUI, I have to tread a bit more carefully. Specifically, I want to avoid alienating a Client by telling them they have an alcohol problem (especially if they don’t have one). While it is my desire to help my Client, I am much more able to do that by helping them take an honest look at themselves than I am by telling them something they may not be ready to hear, or that might be wrong.
The surest way to make sure someone DOES NOT get the help they need is to try and push them into it before they are ready. A person must conclude, within their own mind, that they do, in fact, have a problem before they’ll really be motivated to do anything about it.
Therefore, if a Client comes to me with a 2nd Offense DUI, it is not my place, and would, in fact be rather counter-productive, for me to say “wow, man, you sure have an alcohol problem…you better get some help for that!” Instead, I have to help the Client by making him or her understand, first and foremost, that the Judge is going to conclude they have a problem, and that the Law presumes they do, and that we’re not going to get very far, in all but the most exceptional cases, by running around and arguing that this 2nd DUI is just “bad luck.” In fact, any Lawyer who tries that tactic is way too afraid to be up front with his or her Client, and that as much as they don’t want to offend the Client (the customer is always right…), that strategy will BOMB out when they try and pass that one off to the Judge.
Let me continue to digress on this point. I’ve had a million nice compliments on my site, and this blog, for being honest. I appreciate that, because that honesty defines me as a person. I’ve been a Lawyer way too long to not know that I know what I’m talking about. I have more than enough business to keep my busy. I don’t need to take on a Client who is so headstrong that they’re going to be the captain and do things their way. If I take a case, I’m being hired for my knowledge and judgment, and I expect to chart the course.
Yet a lot of Lawyers, particularly younger, or less successful Lawyers who feel that they really need the business, will just agree with everything the Client says, because they’re afraid that if they don’t, the Client will not hire them. They may be right about that, but such an alignment of the parties is a sure recipe for disaster farther down the road.
I often point out that I’m not going to just tell a Client what they want to hear. I am going to tell them the truth, even if that is unpleasant to them. Imagine a person calling a Lawyer for Representation on a 2nd Offense DUI, and the person insists that they don’t have a drinking problem, that they don’t really drink that much, that they’re just unlucky, and that it’s all unfair; some (and perhaps too many) Lawyers will just agree with the person. Some may agree because they don’t have enough backbone (probably a red flag there…) to say otherwise, and others may just not want to scare away a potential new Client.
Not me.
I know that left unchecked, those sentiments are going to create more trouble down the road. If a person cannot be made to at least understand how talking that way is going to make things worse, and not better, when they’re in front of the Judge, then let them go be someone else’s problem Client.
Once the Client understands how the Court system will perceive things, I at least can get them to move away from saying things that are only going dig them into a deeper hole. In a case that’s not going to get dismissed because of some problem with the evidence, I can then help the Client minimize the potential consequences of a 2nd Offense DUI by proactively helping them get into the right kind of Counseling early on. Remember, the Judge is required by Law to Order this, anyway, so getting a head start, and getting into the right kind of Counseling, can pay dividends later on, as the case progresses. In that context, I can then suggest that my Client keep an open mind, and open ears, as they take a look at the legal consequences and personal effects of their alcohol use.
This, however, is exactly where the old saying “you can lead a horse to water, but you can’t make him drink” makes perfect sense. A person has to take their own inventory, and come to their own conclusions about their drinking. If they conclude that they don’t have a problem, my job is NOT to argue with them, but rather to counsel them that we at least need to take a different approach with the Court system.
In truth, the several roles I play as a Michigan DUI and Driver’s License Restoration Lawyer are not in any way inconsistent. If I can beat a DUI case, I do just that. At the point a case is dismissed, the issue of a person having a drinking problem or not has no legal significance. I don’t make it an issue in the case, but I do not ignore what I feel is my moral obligation to suggest a person reevaluate their drinking habits, either. I often use this analogy:
I like orange juice. I have it every morning with breakfast, and I know a lot of other people do, as well. I ask if the Client if he or she likes orange juice, and most of the time, they say yes. I then ask them to imagine that, like me, they have orange juice every single morning. I then ask them to imagine that every once in a while, however, drinking orange juice made them sick. Finally, I ask them if that happened a few times, would they continue to drink orange juice?
To date, everyone has answered “No.”
Sometimes, without asking for an answer, I can just ask a person to think about where they see their lives in five years if they keep drinking in whatever way they currently drink.
For those facing a DUI that isn’t going to be dismissed, I help direct the Client into at least having a frame of mind NOT at odds with how the Court system is going to perceive them. If that’s as far as it can comfortably go, then that’s okay.
Other times, I have a Client who knows they have a drinking problem, or at least suspects that their drinking has become problematic. Perhaps they’ve slipped in their Recovery. Perhaps they’ve had their “a-ha” moment about their drinking by virtue of getting Arrested again. Whatever the circumstances, if a person senses a problem, I can help, and probably a lot more than the reader could ever imagine.
Finally, anyone trying to get their License back will have gone through the whole gamut of realizing they have an alcohol problem, then committing to not drinking, and thereafter accumulating some real Sobriety.
Wherever a person might be on this continuum, I offer help without judgment.