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3rd Offense (Felony) DUI cases and the Realities of Jail, or not – Part 1

This article will examine 3rd Offense (Felony) DUI cases. I have written extensively about 1st and 2nd Offense DUI cases in the Drunk Driving section of my blog. This article will examine the most serious of all DUI charges not involving a death or serious injury. Because this is an important subject, this article will be long, and divided into 2 parts.

Having been a DUI Lawyer for over 20 years, I know firsthand that absolutely no one needs to be reminded that a 3rd Offense DUI is serious business. My hope is to present a somewhat different perspective about these cases which, instead of focusing on how bad things are, or can be, will focus on how a 3rd Offense case can be handled in a way to minimize all the agony and misery so many other discussions seem to dwell upon.

Jail bench2.jpgAbout 4 years ago, on January 3, 2007, the Michigan Law regarding 3rd Offense Drunk Driving charges was drastically changed. Prior to that date, a person had to accumulate 3 alcohol-related traffic offenses within a 10-year period to be charged with a Felony. In other words, a person needed 2 prior DUI’s (or, more specifically, alcohol-related traffic offenses, because a “zero tolerance” conviction could count as a prior offense) and then acquire a 3rd, all within 10 years, before the 3rd Offense Felony charge could be brought.

On January 3, 2007, what is known as “Heidi’s Law” took effect. The purpose and effect of this law was to abolish the 10-year limitation for bringing a Felony DUI charge. Instead, ANY combination of 3 DUI’s within a person’s lifetime was enough to make that 3rd Offense charge a Felony. To this day, while many people know this, many do not.

What cuts across every 3rd Offense case is that sinking feeling a person has when they hear the words “Felony” and “up to 5 years in Prison.” As I noted, everyone facing a 3rd offense DUI knows that things are not looking particularly rosy at the moment. And while there’s no way to turn any DUI charge, much less a 3rd Offense, into a pleasant experience, there are plenty of things that can be done to avoid much of the unpleasantness a person fears. Even the most “red-handed” and clear-cut cases can be worked out in a way to not ruin a person’s life. It may not feel that way at the moment, but there is light at the end of the tunnel.

This article will concentrate on those cases where there is no viable challenge to the stop, the arrest, or the evidence. You could literally write volumes about all the things that could be wrong with a DUI case and could be used to beat the charge, or be acquitted at Trial. However, and statistically speaking, those cases which are thrown out of Court, or in which a person “beats” the charge, are far and away the exception, and not the rule. This article is about real hope in real cases, not hope for a miracle in the once-in-a-blue-moon kind of case.

In addition, I should point out that my observations are based upon my rather extensive experience handling DUI cases, and that all of that experience is limited to cases arising in Macomb, Oakland, and Wayne County. Thus, the information in this article may be entirely inapplicable to a case bought outside of the Tri-County area.

And make no mistake, location has a lot to do with how well or poorly a case will turn out. It is just a matter of fact that if a person if facing a 3rd Offense DUI case, Oakland County is the worst of the 3 Counties in which to be. On the other hand, Macomb County is the best in which to face a 3rd offense. Wayne is not quite as good as Macomb, but is still leaps and bounds better than Oakland.

In my 20+ years as a Lawyer, I have heard loads of theories as to why any one County is better, or worse, than another in which to face a Felony DUI 3rd Offense charge. Some of those theories are interesting, but however true or not they may be, it all comes back to the reality that, whatever the reason or reasons, Macomb, Oakland and Wayne County are each different from the others in the way they deal with 3rd Offense DUI’s.

It seems that everyone knows that Oakland County is the toughest of the 3. Beyond all the doom and gloom, I have had any number of 3rd Offense cases where I was able to limit the Jail Sentence to the legally required minimum of 30 days. Some of this has to do with the Judge to whom the case is ultimately assigned. Remember, a 3rd Offense case always starts out in the District Court for the City (or Township) in which the Arrest was made. There is no way to know which Judge will wind up with the case until after it “goes up” to (technically speaking, is “bound over” to) the Circuit Court. Here, the rules of diplomacy restrain me from rating the different Judges. Make no mistake, however, that once I represent someone, and once we find out who will be their Judge, I will tell my Client if we got lucky, or not. Some Judges are just much tougher on DUI cases than others.

Macomb and Wayne Counties are much more consistent in the way 3rd Offense cases are handled. In Macomb, for example, there is really little difference between the toughest Judge and the most lenient. By contrast, in Oakland, the difference between one Judge and the next can be pretty dramatic.

Wayne County is typically, but not always, as even-keeled as Macomb. Part of that may have to do with the utter lack of Jail space the County has versus the sheer number of hardcore cases that pass through its system. Still, it is surprising to many to discover that, in terms of a 3rd Offense that is not reduced to a Misdemeanor, Macomb County is still the best Court in which to be.

I suppose I’m biased, having my Office in Macomb County, right across the street from the Circuit Court, but I think the Macomb County Judges have the best approach to Sentencing 3rd offense DUI Defendants, and not because they seem to be, on the whole, more lenient. I think Macomb County Judges eschew the “one size fits all” approach and really try to listen to each case individually, and are remarkably successful at doing that. That’s not to say the Court is staffed by a bunch of pushovers. Its just that Macomb County Judges take the time to interact with the Defendant and his or her Lawyer in order to both make a strong, prohibitive impression, while simultaneously holding on to the belief that a person can make themselves better, once they commit to doing so.

Wayne County Judges see everything. Let’s face it, each of the Judges in the Frank Murphy Hall of Justice has handled more super-serious cases than almost all of the other County Judges combined. Life Sentences are handed out there every day. When you begin to think of 10 or 15 year Prison Sentences as being a “break” in a particular case, or as being reasonable, handing down a Sentence of a few months doesn’t seem like such a big deal. Still, I have NEVER walked out of the Wayne County Circuit Court feeling like my pleas fell on deaf ears. The Wayne County Judges are, as a whole, amongst the most pleasant to deal with anywhere. While the breaks might not be quite as good as those typical in Macomb County, Wayne County is still a far better place in which to face a 3rd offense DUI than Oakland.

And that’s not to say I don’t understand where the Oakland County Judges are coming from. While I keep noting that they’re tougher than Macomb or Wayne County Judges, I have never seen anyone unreasonably pounded by an Oakland Circuit Judge. Listen, if you get caught stealing a loaf of bread in Los Angeles, you might get a ticket. If you get caught stealing a loaf of bread in Saudi Arabia, you’ll get a hand cut off. Those are just the risks one takes.

Beyond the fact that, by the number alone, Wayne County deals with way more “super serious” cases than either Macomb or Oakland, it seems that Oakland always has some high profile case or other going on. The DUI driver who rear-ended a car and killed the woman driver and her 2 children back in 2005 has left a palpable legacy in that Courthouse.

It goes without saying, then, that it certainly doesn’t help matters when the Courthouse has been abuzz about some well-publicized case in which a Drunk Driver killed or injured someone. Those cases, of course, go to Circuit Court. As much as the assignment to any particular Judge impacts how a case will play out, timing is likewise crucial. There’s not much one can do about that, but it would be rather thick-headed to think that if all 3 Newscasts are carrying some story about a fatal DUI case in the Circuit Court, it is going to help. No Judge wants to be the last one who dealt with a person too leniently before they go out and kill someone.

Unless someone is seriously hurt, or killed, however, a person facing their first 3rd offense DUI will not have to worry about being sent to Prison. Even most second-time, 3rd offense DUI Defendants don’t have to worry about that, although a longer Jail Sentence is certainly going to be part of their immediate future.

It is perhaps Macomb County’s willingness to allow some 3rd offense DUI cases to be Plea-Bargained down to 2nd Offense Misdemeanors that is the brightest ray of sunshine in this whole Felony DUI landscape. In those cases, it is often very possible to keep the Client out of Jail entirely. This, in turn, keeps the Client from losing a job, or being separated from children that need the parent.

I could write a book about why this is the case, but the short version is will have to do here. In Macomb County, it is possible to have a 3rd Offense DUI charge reduced from a Felony to a Misdemeanor, meaning have it dropped to a 2nd Offense. This also means that the person can potentially avoid any Jail.

In Wayne County, there is very little chance of having a 3rd Offense Felony DUI reduced to a Misdemeanor, but it is possible to limit a person’s Jail exposure to the legally-required 30 day minimum (by law, anyone convicted of an OWI 3rd offense MUST serve a minimum of 30 days in Jail). I’ve even had cases where those 30 days were served over 15 consecutive weekends.

Oakland County is much different. Beyond not plea-bargaining these Felony cases to Misdemeanors, many Jail Sentences are in the 4 to 6 month range, and that’s after the Defense Lawyer gets a Sentence bargain deal with the Judge. With those Clients who are committed to a wholesale, lifestyle change, however, I have been able to limit their Jail time to 30 days, even in Oakland County.

In part 2 of this article, we’ll pick up by examining the reality of Sentences in 3rd offense DUI cases, meaning how some people can be kept out of Jail, and how to minimize any time someone else may get.

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