Michigan Criminal Defense Lawyer Blog
In our roles as Michigan DUI lawyers, clients always ask us about what will go on (and what can come off) their records. In this article, I want to look at the consequences to a person’s record as the result of ANY alcohol-related traffic conviction. Recently, the Michigan legislature passed a bill to allow for the expungement (technically, the set-aside) of a conviction for at 1st offense OWI (DUI) from a person’s criminal record, but it was not signed into law by the governor, so our discussion here will focus on how things stand now.
One specific question my team and I get asked rather often is whether or not a DUI is a traffic offense, or a criminal charge. The simple answer is that it’s both. Technically speaking, a DUI is a criminal traffic offense because it carries a potential jail sentence, and therefore goes on both a person’s criminal and driving records. By contrast minor traffic offenses, such as speeding, are “civil infractions,” which means they’re not punishable by jail and only carry the potential of a fine and points that can be assessed upon a person’s driving record.
If a person is convicted of a criminal traffic offense, like a DUI, an entry will be made on both his or her criminal record, and his or her driving record. This makes sense when we break it down a bit more: a criminal conviction that does not involve driving or carry any potential driver’s license sanctions will only go on a person’s criminal record. A conviction for a minor traffic offense (like making a prohibited right turn at a red light) that carries no potential jail sentence is classified as a civil infraction, and will only go on someone’s driving record.
Certain driving offenses (like Operating While Intoxicated) are more serious, meaning they are considered crimes (and therefore carry a potential jail sentence), and are therefore classified as criminal traffic offenses. In other words, they are both crimes and traffic offenses.
Beyond those, there are various other purely criminal, non-driving offenses (like possession of drugs) that can, as part of their penalties, result in either the mandatory or potential suspension of a person’s driver’s license.
Both criminal traffic offenses and those criminal, non-driving offenses that carry the potential for jail and the suspension of a person’s driver’s license are legally required to be abstracted to (meaning placed on) both a person’s driving record and criminal record.
But wait – there’s more…
There are 2 other related questions we get asked all the time:
1. How long will a DUI stays on a person’s record, and,
2. Does it ever “come off?”
The answers are simple, although disappointing:
- Unless and until the law changes, a DUI will stays on both a person’s criminal and driving record forever.
Many of our 1st offense DUI clients come to us without any kind of prior criminal record. Unfortunately, a conviction for a DUI offense will establish one for them.
2. A DUI conviction can NEVER “come off” either a person’s criminal or driving record (again, at least until there is some change to the law).
Sometimes, a caller will tell us they “know” somebody who got a DUI off his or her record.
Let me be crystal clear about this: That absolutely, 100% did NOT happen, nor can it happen (again, at least until the law changes).
For what it’s worth, there was clearly enough support for this long overdue legislation allowing for the expungement of a 1st offense OWI conviction from a person’s criminal record to make it happen in the legislature, so as of now, it’s more a question of when it gets signed into law, rather than if.
Unfortunately, the bill that did pass the Michigan congress did not address if or how the set-aside of a 1st offense DUI would impact a person’s driving record, so we’re left with no direction as to how that might or might not apply in that context.
What’s important to note about the legislation that was passed (and any bill that ever does get signed into law) is that it does NOT provide for a DUI to automatically “come off” a person’s criminal record.
Therefore, even when expungements do become allowed for a 1st offense OWI conviction, as seems likely, a person is going to have to wait a number of years to become eligible, and then will have to formally apply for such relief.
As things stand today, however, the law specifically forbids and prohibits any traffic offense or criminal traffic offense (including a DUI) from being removed from either a person’s criminal or driving record.
Thus, even if some Judge would agree to “expunge” a DUI, the Michigan State Police, who are responsible for keeping all criminal records, would not and COULD NOT effectuate any such order.
Also, one must remember that, under Michigan law, while points for traffic offenses only count for 2 years, criminal driving offenses like a DUI, (remember, these are technically abstracted as Operating While Intoxicated), stay on forever.
The reader is probably thinking something like, “Wow, that seems unfair. So a person can break into someone’s house and rob them, and get that removed from their record, but anyone who gets a DUI can’t?”
Yep. I don’t think that’s fair, either, but, as the saying goes, “it is what it is.”
The good news, though, is that there was more than enough support for having passed the bill to allow for the expungement of a 1st offense DUI conviction in both the State House and Senate to be sure that it will brought forward again. Of course, when it does, I will publish an update.
Although the Governor’s reasons for not signing the bill weren’t made public (at least at the time of this writing), it’s a fair bet that some substantially similar version of the law will be passed and then signed in the relatively near future.
For as much as I could say about this, and for as little as there is to be done about it, the simple truth is that, as of now, a DUI will go on and stay on a person’s criminal and driving record forever.
Logically speaking, the next question anyone interested in this should be asking is, “So what does this mean for me?”
As human nature goes, people tend to fear the worst early on, right after a DUI arrest. In other words, when first charged with a drunk driving offense, they’ll often let all kinds of nightmare scenarios run through their minds, imagining that they’ll lose their job and never be able to get another good job.
Let me clear that up:
Unless you drive for a living, a DUI conviction is NOT likely screw up your employment.
This also holds true for anyone who hold a professional license, including dentists, doctors, lawyers, and nurses.
Things are different, however, for CDL holders.
Federal law imposes a mandatory 1-year suspension of a CDL (Commercial Driver’s License) upon conviction for a 1st offense DUI, even though Michigan law does NOT do anything like that to a person’s regular driver’s license.
Nothing in the expungement law, no matter how it’s drafted, can or will have any effect on that.
This means that if you are a CDL holder and drive a school bus, or an ambulance, or a truck, then a DUI is going to be a problem for which you’re going to have to find a work-around.
For almost everyone else, though, that initial fear of everything going to Hell in a hand-basket is usually exaggerated.
As it turns out, we have represented lots of people who DID drive for a living and were rightfully worried that a DUI would be the end of their employment. In almost every one of those cases, however, their employers managed to find work for them in some other capacity.
In fact, the only exception that I can recall where a DUI conviction actually did cost someone their employment was a person whose sales job in another state required him to drive, even though he didn’t have and didn’t need a CDL.
I suspect there was a lot more to that whole situation than just his DUI, but the larger point is that after having handled thousands of DUI cases, I can honestly say that almost all of the concerns people have at the outset about losing their jobs is, thankfully, misplaced.
The most important thing for anyone who does get a DUI is to make sure that it’s a “one and done,” and that they never get another.
Let’s be honest; we all screw up, and often multiple times. After all, some of life’s most important lessons are “learned by mistake.”
The truth, though, is that for most people, a 1st offense DUI just “happens.”
In the big picture of life, a single drinking and driving convictions is not character-defining, at least in the way that, for example, an assault or theft crime can be.
Think about it; if you were required to make a hiring decision for your company, would you more worried about a person who got popped driving over the limit in the past, or the person whose record indicates he or she might steal the money out of co-worker’s wallets?
Of course, this with professional licenses tend to get really worried about the consequences of a DUI, and that’s normal.
My team and I often represent professional clients who are concerned about how a drunk driving conviction will affect their license through LARA – the Michigan Department of Licensing and Regulatory Affairs.
Here’s the good news: Generally speaking, the ONLY thing someone with a professional license will have to do following a DUI conviction is report it to their licensing body.
Medical people, especially, get nervous about this, because they “see” that others in their profession have their occupational licenses suspended.
In almost every one of those cases, however, those licenses were suspended because the holder did not report his or her DUI conviction, as required. In other words, it’s not the DUI itself, but the failure to report it that’s the problem.
In the real world, about the worst thing anyone reporting a single DUI conviction faces from a licensing agency is that he or she may have to undergo a separate substance use evaluation to make sure they’re not grappling with an ongoing substance abuse problem that can impair their ability to do their job safely.
Fortunately, it’s rather uncommon for things to go that far, but even so, a proactive defense can help obviate such concerns in the first place.
There is a lot to all of this, and a more detailed examination goes beyond the scope of this article, but the bottom line is that a 1st offense DUI conviction is almost never a problem for anyone holding an occupational or professional license.
Nor, for that matter, is it ever really an employment problem for most anyone else, either.
Unless someone starts racking up multiple DUI convictions, a single DUI on a person’s record should not be a huge deal, and my team and I focus on doing everything possible to make sure that’s the case.
If a person’s 1st and only DUI ever does get brought up in any employment setting, then he or she should admit the mistake, and then personally assure his or her current or prospective employer that it will never happen again.
Consider this: On average, there are about 30,000 DUI arrests in Michigan every year.
If you do a little math in your head, that means you can point to just about any business, office building, or restaurant within sight and know there’s a good chance that someone in there has a DUI on his or her record.
Just let that roll around in your head for a minute, and then you car breathe a sigh of relief…
If you are facing a DUI and looking for a lawyer, be a good consumer and do your homework. Read around and see how lawyers explain the DUI process, and how they explain their approach to it.
When you’ve done enough of that, start checking around. You can learn a lot by actually speaking with a live person.
My team and I limit our DUI practice to the local Metro-Detroit area (meaning any of the courts in Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair and Washtenaw Counties). If your case is in any of those places, give us a ring.
All of our consultations are free, confidential, and done over the phone, right when you call. We are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer says.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700, or 596-465-1980.