Michigan Criminal Defense Lawyer Blog
As full-time Michigan DUI lawyers, we are regularly contacted by people facing 2nd offense DUI charges. In a recent article, I noted that sobriety court is an option that should be considered by anyone in that situation. One of the main points I made there was in order to be a candidate for sobriety court, a person has to really believe that, at least to some extent, his or her drinking has become a problem. Michigan law, for its part, automatically concludes that all 2nd offenders have some kind of issue with drinking, and that will be the focus of this piece.
The inspiration for this article came from an email we received some time ago. I’ve waited a solid year before reprinting it in order for the case to resolve. It is reprinted below, exactly as it was received, except that I have redacted any potentially personally identifying information. The email highlights a real divide my team and I encounter among 2nd offenders: Some people come forward, either knowing, or at least open to the idea that drinking has caused them too much trouble, while others don’t even give their use of alcohol a second thought, and just consider themselves unlucky for picking up their 2nd DUI.
As I will explain, examining a 2nd offender’s relationship to alcohol is absolutely crucial to producing the best results possible in his or her DUI case, although it’s all too frequently ignored outright by many legal websites. This goes to another subject I often write about – the idea that people can often be swayed by what they want to hear, rather than listening to what they need to hear. Although some people who wind up facing a 2nd offense DUI may not be very interested in looking at their drinking, they’ll soon enough learn that’s exactly what the court is going to do.
Not understanding this at the time they are charged with their 2nd DUI, there are those who would much rather hire some lawyer who simply agrees that the whole 2nd offense thing is just bad luck. That’s not only disingenuous on the attorney’s part, it’s detrimental to producing the best possible outcome for the client.
Unfortunately, for some lawyers, the old saying that “the customer is always right” has come to mean that one should say whatever the client wants to hear, as long as you get paid.
That’s wrong on many levels, but most of all, because, as I stated above, it’s counter-productive within the context of a 2nd offense case. No matter what, a DUI lawyer is hired to make things better for the client, not just agree while simultaneously letting him or her unwittingly make things worse in his or her own case.
For everything that can be said about an Operating While Intoxicated (OWI) charge, here is the most of all:
Success in a DUI case is best measured by what does NOT happen to you.
To make sure that happens, a person needs a lawyer who knows how to take charge and what to do to actually make things better, instead of some attorney who does little more than nod in agreement and merely says what the client wants to hear.
With that as a backdrop, let’s look at the email I referenced above, reprinted exactly as we received it, minus any personally identifying information, as noted in [brackets]:
Name: [First] [Last]
Email: [First name].[Last name]@[Provider].net
October 21, 2019
Phone: [XXX-XXX-XXXX]
Message: I got pulled over Friday [month and date] for going 55 in a 45 then the cop smelled alcohol and arrested me. It was in Oakland County which I heard is not a very good place to get a Dui. Regardless Im a XX year old [gender] with 2 jobs and am going to school for my [degree] in [field of study] at [name of university]. I guess I just want to know what I can expect such as the likelihood of jail and what I can do to get the best possible outcome. This is my second offense within seven years. I know this isn’t important, but I rarely drink and when I do it’s purely social. I’ve just made the choice to drive afterwards, twice now. I’m still willing to do anything I can to avoid jail and hopefully not have to take a year off of school just because of this DUI. I cant afford to uber to school every day on top of work and whatever other things the court assigns so just like anyone would, I’m hoping you can assess my odds and give me a realistic idea of what will happen to me. I know it’s gong to suck no matter what. I would prefer if you text that number or email if you wish. Thank you for your time.
For reference purposes, I bolded the language that was most concerning.
And this leads me straight to the main point of this article: In the real world, the majority people who wind up being charged with a 2nd offense DUI feel the same as the person who sent the email above.
To be clear, I am not suggesting that every person who gets a 2nd offense DUI is any kind of raging alcoholic. This is not about getting someone to “confess” to a problem they don’t have in order to do better in the court system.
Quite the contrary, it’s about making sure that everyone, from the person facing the charge to the Judge presiding over the case, is willing to keep an open mind as it relates to a person’s drinking and his or her relationship to alcohol.
This is especially true, given that, as we’ll see, the court system basically assumes from the outset that every 2nd DUI offender has some kind of drinking problem.
In fact, within the court system, the reality is that plenty of people get labeled as having an alcohol problem that’s either not there at all (this is far more likely in 1st offense DUI cases), or are otherwise treated as if whatever problem they do have is much worse than it really is (something particularly relevant to 2nd offense cases).
This is called “over-diagnosis,” and it’s a very real phenomenon.
As much as it’s our job, as DUI lawyers, to help each client understand the reality of his or her position, it is every bit as important for us to not sell the client down the river and let him or her get carried away with the current, either.
We have to make sure the court system sees our client as an individual, and not just another number in the herd.
Courts, for their part, aren’t especially concerned about overdoing (or over-diagnosing) things when it comes to alcohol counseling or treatment. Indeed, and although it’s understandable why, the court system will always opt for a “better safe than sorry” approach.
This makes more sense if we examine how things work in Michigan:
Under Michigan law, if a person is convicted of a 2nd DUI (technically speaking, a 2nd alcohol-related traffic offense) within 7 years of his or her 1st, he or she is automatically categorized as a “habitual alcohol offender.”
As a consequence of that designation, a person is also legally presumed to have a drinking problem, and his or her driver’s license will be revoked.
The law further requires that, as a minimum part of his or her sentence, each and every 2nd offender complete some kind of counseling and/or treatment program.
This is where a lot of people stiffen up and get defensive, often saying things like, “But I don’t drink that much!” or “I feel like I’m being treated like some kind of alcoholic!”
In many cases, that feeling is NOT misplaced, and that goes to another point of this article: everyone facing a 2nd DUI needs to know how the court is going to view them, and then prepare his or her defense accordingly.
Given that the court will, because of the the way the law works, presume that every 2nd offense DUI defendant has some kind of drinking problem, it does absolutely no good to just stand there and insist “No, I don’t!”
Even if the Archbishop of Canterbury or the Pope was in front of a Judge for a 2nd DUI, each of them would still be presumed to have an issue with drinking, and would therefore be required to complete some kind of counseling and/or treatment.
If you don’t prepare for that at the outset of your case, and the best defense plan you have in that regard is to merely say “I don’t have a drinking problem,” then you can expect a very bumpy ride for a while.
Heck, even if a Judge agreed with a person that in some particular case there wasn’t any kind of alcohol problem, he or she would nevertheless still have to send them to counseling or treatment simply because the law requires it.
Therefore, a person has to decide if he or she merely wants to sit back and just wait for the Judge to determine what’s going to happen to him or her, or, if instead, he or she wants to proactively have a hand in deciding what does happen.
What my team and I do to ease things for our clients and how we do it depends on the case. The reader will have to take my word for it here, because even the quickest overview of that subject would likely by a multi-installment piece in its own right
The larger point, however, is that in order to have a positive impact on one’s own case, a person must first know what the court is legally required to do, and why.
In all 2nd offense cases, that begins with understanding that it is a complete non-starter to try and sell an idea like one is not a big drinker, or only drinks socially.
Even if a person could prove that he or she rarely drinks, then the court would come back and say something like, “be that as it may, what we know, then, is that when you do drink (however rarely), there’s still a risk that you’re going to try and drive, even though you’ve overindulged .”
Think about it this way: If Person A drinks 4 times a week and has 2 DUI’s within 6 years, then the math might be this: 4 X 52 = 208. Over the course of 6 years (6 X 208), he or she will drink 1248 times. Thus, his or her DUI rate is 2 out of 1248. That equals 0.16%
By contrast, if Person B, who also has 2 DUI’s in 6 years claims to only drink about 4 times per year, then his or her math looks like this: 4 X 6 = 24. With a DUI rate of 2 out of 24, that equals 8.33%
Thus, while we might tempted to call Person A something of a “big drinker” (certainly by comparison to Person B) and would definitely agree that Person B “doesn’t drink that much,” the fact is that person B is 52 times more likely to get a DUI than Person A.
That’s a HUGE increase in risk.
Put another way, the “I don’t drink that much” defense is a loser, pure and simple.
The kicker, though, is that it doesn’t matter anyway: the law simply holds that if a person gets 2 DUI’s within 7 years, he or she is automatically categorized as a “habitual alcohol offender,” and as such, must be sent to counseling and/or treatment.
Being proactive means understanding that the court is going to see things this way, and then taking steps to minimize what happens as a result. If someone’s lawyer isn’t talking about this right out of the gate, then they’ve hired the wrong lawyer.
If a person really isn’t a big drinker, then he or she needs to be able to present solid clinical information to confirm that so that he or she doesn’t get crammed into the same kind of intense treatment as someone who does drink all the time.
On the flip side, if a person is at that point where his or her relationship to alcohol has become too problematic to deny, then he or she needs to get the kind of counseling or treatment that’s a good fit for him or her, and not merely get stuck into the kind of “one-size-fits-all” programs used by many courts.
Our firm can help with that.
Issues like this were part of the reason I went back to the University campus to complete a post-graduate program of addiction studies years ago. In DUI cases, I use my clinical knowledge of the development, diagnosis and treatment of and recovery from alcohol and drug problems to make sure of 3 things:
1. That the client is not diagnosed as having a problem when he or she doesn’t, in fact, have.
2. That the client is not diagnosed as having a problem that is more serious than any he or she actually does have, and,
3. That the client does not get stuck into the “wrong” kind of counseling or treatment for him or her.
Yet for important as all of that its, being able to do that in a 2nd offense DUI case begins with acknowledging that something like the “but I’m not a big drinker” excuse is a complete waste of time.
Remember, success in a DUI case is best measured by what does NOT happen to you.
If you’re facing a 2nd offense DUI (or any DUI charge, for that matter) and are 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. Nothing beats actually speaking with another human being.
All of our consultations are free, confidential, and, best of all, 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 either 248-986-9700, or 586-465-1980.