The Proper Handling of a 3rd Offense Michigan DUI (OWI) Charge

In our roles as Michigan DUI lawyers, we handle a lot of 3rd offense OWI cases. It’s a given that a felony DUI charge is serious, but it doesn’t have to be anything like the end of a person’s world, especially if it’s handled skillfully. As I often point out, success in a DUI case is best measured by what does NOT happen to you, and that’s particularly true when facing a 3rd offense charge. In fact, when properly handled, a 3rd offense DUI can be worked out a lot better than the reader might think, and many, if not most, of the scary sounding potential consequences can be avoided.

SHOjoijoioihoih-300x276Obviously, the first goal in any DUI case is to find some way to get out of it, but drunk driving charges don’t dismiss themselves. Instead, a lawyer has to work every angle to discover something that can be leveraged to either get the charges knocked out of court, or used to in order to force a better outcome. That’s not a bunch of meaningless talk, either, at least when real effort is actually put into a case. As one of my favorite lyrics observes, “Good work is the key to good fortune; winners take that praise – losers seldom take that blame.”

That sentiment is completely applicable when it comes to handling DUI cases, and even more so in a 3rd offense situation. Experience teaches that when a Michigan DUI lawyer examines the evidence in a case and looks for something to challenge, there are certain places where he or she is more likely to find it than others: The traffic stop has always been one of the best areas for that. The day before I began this article, the Michigan Court of Appeals published an opinion holding a DUI traffic stop unlawful in a certain case, and that really shows the value of a lawyer’s good work, and what “proper handling” can do.

In that case, the Appeals Court reversed a lower court in Jackson County and held that the police could NOT pull over a driver for going about 10 miles an hour under the speed limit, and that any evidence obtained after such an unlawful stop was inadmissible. It effectively “killed” the case, which involved a person charged with a 3rd offense, felony DUI.

That result didn’t happen by accident; it happened because some lawyer worked very hard. Although I usually don’t write about cases beyond those our firm handles, this one was worth mentioning, because it not only raises an important legal point about what’s needed for the police to initiate a traffic stop, but also makes clear that in order to produce the best result possible, the lawyer has to really work every angle.

That all begins with the lawyer’s mindset about handling cases in general, and filters down into the specifics of what he or she actually does in each and every one of them.

I’ve told this story before, but it’s worth repeating: Many years ago, when I was just starting out, I was handling a criminal case in a local court when a then big-time defense attorney came into the conference room. At the time, he was in the midst of handling a very high profile local case that was in the news almost every day.

As everyone sat around the big conference table, a prosecutor asked him a great question about whether, when he would take on a case, he’d begin by just hoping to find some some way to beat it, or, instead, if he’d just assume that there already was such a way.

He very matter-of-factly answered that he when he took on any case, he began by assuming, at the outset, that there was some way to “beat” it, and that his job was to carefully examine everything in order to find that.

Of course, he also admitted that things didn’t always work out that way, and there wasn’t always some fatal flaw in the evidence to be found, but he believed it was important to begin each case with the mindset that there was.

That was both profound and simple.

At the time, I had been a lawyer long enough to understand that he spoke from a position of experience and wisdom, but also young enough to not have any bad habits to break and be able incorporate his approach into the way I do things.

From that point forward, I have begun every case with the attitude that there is some way out of it, and that I have to dig and find it, rather than just “look things over’ and hope something would jump out.

That “digging” approach is exactly how my team I do things to this day. Obviously, when someone is facing a 3rd offense OWI (“Operating While Intoxicated,” the legally correct term in Michigan for what we all just call a “DUI”) charge, an intelligent defense matters more than ever.

Yet even if there is no fatal flaw in the evidence that can just get a case thrown out of court, by leaving no stone unturned in our quest to find it, there are countless other things that we can discover and use to our client’s advantage.

As I noted previously, DUI charges don’t dismiss themselves. However, it’s also true that no Judge is going to dismiss a DUI case unless he or she has no other choice. In the case noted above (which, as I mentioned, was a 3rd offense DUI), the trial court Judge did NOT dismiss it, but instead ruled that the police did have enough reasonable suspicion to pull over vehicle because it was being driven about 10 miles under the speed limit.

It’s not a stretch to think that the Judge was probably not happy to even think about letting someone facing a 3rd offense drunk driving charge just walk out of court like nothing happened. I can only speculate, but had this been some 1st offense charge with a really low blood alcohol (BAC) result, perhaps things would have played out differently in the local court.

Whether that’s true or not, the good new is that the Michigan Court of Appeals was objective in its application of the law, and saw things differently.

Although we don’t know anything more about the case than is covered in the opinion of the Appeals Court, in a perfect world, the lawyer handling the original case (it’s possible that a different lawyer handled the appeal) would have been familiar with the Judge, and therefore, the ruling to allow to uphold the traffic stop and allow the evidence to be admitted would not have come as a surprise to him or her .

Of course, the whole notion of “good work” means that he or she at least made the argument that the stop was unlawful, thereby preserving it for what turned out to be a successful appeal.

For as much experience and skill that a lawyer can bring to the table, I firmly believe it’s always better to hire “local” in any given case.

My team and I concentrate our DUI practice in the courts of Greater-Detroit, meaning Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair and Washtenaw Counties. Because we go to the same courts over and over again, we know how the Judges and prosecutors in them operate, and how to do things in each.

That’s important, because quite often, getting the best result in a case means building a strategy that takes into account the policies and practices of the prosecutor who will be handling it, and the Judge who will be deciding it.

Here’s a quick explanation of what I mean:

Often, even if a case is a slam-dunk for the prosecutor, slowing things down can help the client, and for a lot of different reasons.

Generally speaking, there is rarely a good reason to resolve a DUI case – and especially a 3rd offense DUI case- at warp speed. Thus, good DUI lawyers will try every trick in the book to keep a case from getting wrapped up any sooner than possible.

Most Judges are okay with letting a case play out for a while, but will also “help” move it along as necessary, so it doesn’t stall and go nowhere. If they didn’t do that, lawyers would simply avoid convictions by allowing cases to remain open forever.

Unfortunately, not all Judges are as flexible as others when it comes to time, and there are some who will move things along at the speed of light.

This “time” strategy doesn’t work out so well when the Judge has a “rocket docket,” and wants everything finalized yesterday.

It’s far better for a lawyer to know this going into a case, rather than him or her banking on using time to the client’s advantage, only to find out that’s not an option with the Judge assigned to it, and any such strategy is dead in the water.

This is only one example, but the larger point is that a lawyer should be familiar with how the Judge presiding over a given case generally does things, and what the prosecutor is like, as well.

This will help a lawyer work out the best result in most cases, and to also “know” that a case may have to ultimately be appealed.

Whatever else, the lawyer in the case overturned by the Court of Appeals tried something that didn’t fly in the trial court. However, the “proper” handling of that case involved an appeal that ultimately did get it knocked out.

There is no great, single takeaway here, other than that anyone facing a 3rd offense DUI should hire a lawyer who has the experience and skill to produce the best outcome.

If the lawyer can’t achieve the “best outcome” through negotiation, then he or she has to know how to straight-out fight for it.

To be sure, there is a difference when the person facing a 3rd offense OWI charge only has 2 prior convictions, as opposed to 2 or 4, or 5 or 6 or even more.

Although it sounds funny to say it this way, it’s “best” if a person facing a 3rd offense DUI only has 2 prior DUI convictions.

Lawyers, Judge and prosecutors call that a “true 3rd.”

From there, things get incrementally tougher if a person has 3 or more priors, but no matter what, it is the skillful and “proper” handling of the case that can make all the difference in terms of the sentencing, and what ultimately happens to a person.

If you’re facing a 3rd offense DUI charge (or any DUI charge, for that matter) and looking for a lawyer, be a wise consumer and read around. Pay attention to how different lawyers explain things, and how they explain their various approaches to these cases.

When you’ve done enough of that, start checking around. You can learn a lot by talking to a live person. If your case is in the Greater-Detroit area (meaning any court in either Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair or Washtenaw Counties), give us a ring, as well.

All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer has told you.

We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 248-986-9700 or 586-465-1980.

Posted in:

Comments are closed.