2nd (Second) Offense DUI - Super Detailed, Long Version - Part 2

In the previous Section (Part 1), we began our examination of 2^nd Offense DUI cases, and looked at a few potential ways to get a charge “knocked out.” We concluded with by acknowledging the reality that, in DUI cases, such results are the exception, and not the rule.

In this Section, we will pick up by answering the 2 most important questions anyone facing a 2^nd Offense DUI case has: “Am I going to Jail?” and “What’s going to happen to me?”

If a case is solid enough to move forward, and not be “knocked out,” instead, then the person facing it has to think about what is going to happen to them. As we have noted, the first and biggest concern pretty much everyone has is staying out of Jail.

When I write about 1^st Offense cases, I like to point out that, with the 48^th District Court exception noted above, no one facing a 1^st Offense DUI is going to go to Jail. I hate the thought of using “scare tactics” to get Clients. I think it’s dishonest and disingenuous to act as if there is anything the Lawyer is going to do that will keep a 1^st Offender out of Jail, because the person isn’t going to Jail in the first place.

Second Offenses are a bit different. Jail looms much more as a real possibility in a 2^nd Offense case. To be brutally honest, the biggest consideration in that regard is where the case is pending. As we shall see, there are numerous other factors that figure into this, but at the outset, the first question any DUI Lawyer will have of someone facing a 2^nd Offense charge is “where did it happen?”

It is generally understood that Oakland County is the toughest of the 3 Detroit-area Counties in which to face a DUI, be it a 1^st, 2^nd, or even 3^rd (Felony) Offense. This is not only accurate, but the truth is that Oakland County Courts are often MUCH tougher than their Macomb or Wayne County counterparts.

Macomb County is, in my estimation, the best County in which to face any DUI charge. Beyond being generally more “understanding” and more “rehabilitative” rather than “punitive,” Macomb County Courts are also unusually consistent in terms of how any DUI case, not “knocked out” because of some defect in the evidence, will ultimately play out.

Wayne County is not far behind Macomb. Generally speaking, Wayne County Courts are about as “understanding” in any DUI as Macomb County, but also tend to pile on more “conditions” like community service, or Court “work programs,” the likes of which are almost unheard of in Macomb County.

Not everything in Oakland County is all “doom and gloom.” There are some moderate Courts in which a Jail Sentence, even in a 2^nd Offense case, can be handily avoided. This includes any number of Courts that do not have a “Sobriety Court” program.

In Macomb County, with the right work (which I will explain later), Jail can be avoided in almost every 2^nd Offense case.

The same is pretty much true for Wayne County, or at least the Wayne County Courts in which I Practice.

Before we get into what I mean by “the right work” to stay out of Jail, let’s examine a few things that the law mandates in a 2^nd Offense case, and how those things can play right into that “work.”

One of the characteristics of a 2^nd Offense DUI charge is that it is a “habitual offender” charge. Back in 1998, huge reforms were made to Michigan’s Drunk Driving Laws. Amongst them was the designation that any 2^nd Offense DUI driver was thereafter considered a “habitual offender.” This designation carries a bunch of implications, but the one most important to this discussion is that any person convicted of a 2^nd Offense DUI must be ordered into Substance Abuse Counseling.

And this is precisely what I was referring to when, at the outset of this section, I mentioned that being proactive, rather than reactive, can have a profound effect on the outcome of a 2^nd Offense DUI. Proactive, in this sense, means getting into counseling or treatment.

I have written a number of articles on my blog about this subject. In a 2^nd Offense DUI case that is not likely to get “knocked out” because of some defect or shortcoming in the evidence, it only makes sense for a person to get into counseling or treatment early, since they are going to be ordered into it anyway. However, getting into the right kind of counseling or treatment is critical. Signing up at Ed’s Used Tires and Alcohol Counseling won’t fly. That doesn’t mean, however, that a person needs to cash out their 401K plan and enroll in the Betty Ford Clinic, either.

Part and parcel of what I do as a DUI Lawyer, and even more so, as a Driver’s License Restoration Lawyer, is to study alcohol and substance abuse problems, as well as the various approaches to their treatment, and methods for Recovery. I have made an extensive and nearly career-long study of these things, having gone so far as to having had a Licensed Substance Abuse Counselor on my staff for a number of years. I doubt the reader wants to hear about all that, but the relevant upshot is that rather than having learned from a particular “school” of thought, I learned about all the different “schools” of thought. This is kind of analogous to a person either taking a global view of the various and different religions, and thinking that different paths work for different people, or taking a narrow view, and believing that there is only 1 true path to spiritual fulfillment. Specifically, what I mean is that some people are of the opinion that AA is the ONLY way to get Sober. That may be true for some people, but it certainly is not true for everyone. Thus, I take the more panoramic view, and eschew the “one size fits all” approach in favor of helping a person find what will work for them.

And what “works for them” often involve considerations like a person’s schedule, finances, and location. Thus, helping the Client find the “best” counseling or treatment for them is about a lot more than just finding a program that is considered “good.”

AA, by the way, while a wonderful program, does NOT count as “counseling or treatment.” This means that when a person asks me if they should start attending AA, I have to tell them while it may (or may not) be personally beneficial to them, and, of course, will have a positive effect on how they are viewed by the Court in their DUI, AA meetings will not count toward the counseling or treatment that the Judge will have to Order.

When I Represent someone facing a 2^nd Offense DUI, I am certainly going to use their proactive involvement in counseling or treatment for their advantage as I deal with the Prosecutor. Beyond that strategic advantage, however, by enrolling in a quality counseling or treatment program of their own choosing, a person can also avoid being summarily Ordered by the Court to attend whatever program the Court is currently using. If a person has not taken steps to become involved in counseling or treatment, and simply waits for the Court to Order whatever it’s going to Order, they can forget about any consideration of factors like how convenient (or not) the Court’s program is, and they can be sure the Court will not be too concerned about their ability to afford whatever is Ordered. From the Court’s point of view, and in a very real way, it’s this, or Jail. If you can’t cut it, well, then that’s your problem.

A problem which, as we have just discussed, can be completely avoided by being proactive and finding the right program early on, and making that happen, rather than just waiting around to see what happens.

Perhaps one of the things that set me apart from many other Lawyers in this field is precisely that alcohol and substance abuse background. If the reader has gleaned anything so far, I hope it’s that I speak (or, in this case write) in a very straightforward, conversational manner. Part of that straightforwardness is not being shy about telling someone who has picked up a 2^nd DUI within 7 years that not only does the Law think they have an alcohol problem, but pretty much the rest of the world does, too. Although there are exceptions, a person facing a 2^nd Offense DUI almost always has an underlying alcohol problem. Ignoring for the sake of trying to be accommodating the Client is a disservice, because, as I noted, there is no Judge out there who doesn’t think that a person who picks up a 2^nd DUI within 7 years does not have an alcohol problem. The reality is that it is far more likely that a Judge will simply reach that conclusion from the fact that a person is facing a 2^nd Offense than it is the Judge will spend much time considering that such a person could, in fact, be that rather rare exception.

A big part of the “problem” in recognizing an alcohol problem in the first place is what most of us think we know about alcohol problems and alcoholism. Before I began my studies in this field, I would have been the first to raise my hand and say that I know what an alcoholic is. I would have then gone on to describe someone who was a heavy drinker. And I would have been dead wrong.

While I could probably write a whole series of books on this topic alone, for our purposes, we can define a person with an alcohol problem as a person whose use of alcohol has begun to have negative consequences in their life that they must fix, or for which they must make allowances. Certainly, having a 2^nd DUI, dropping thousands of dollars in Fines and Costs and Lawyers Fees and all the other expenses that go along with such a charge is a negative consequence. But that’s just scratching the surface. Having NO License for at least a year, and having to bum rides, or drive illegally are also a pretty heavy consequences.

To drive the point home, I think it’s safe to say that absolutely everyone who gets a 1^st DUI will swear that it will never happen again. Even if a person has ZERO clue that there could be anything problematic about their drinking, they will vow to never repeat that nightmare again. Typically, they will consciously set out to control, or manage, or limit their drinking to avoid another DUI.

And then they get popped a second time.

So what does that say?

It says, however unpleasant the reality may be, that the very best example of their ability to manage their drinking, the pinnacle of their “controlling” things, is to get popped again.

And this should bring to mind another reality. A “normal” drinker doesn’t have to consciously “manage” or “limit” their drinking anymore than a normal eater has to plan on how much birthday cake they are going to eat at little Timmy’s 4^th birthday party this weekend. Normal eaters go to the party, and eat the cake, or not, and maybe even have a second piece if the cake is really good. At the time anyone needs to start thinking about “controlling” or “limiting” their drinking, they are long past the onset of a problem.

The fly in the ointment is that, for the most part, those plans to not get Arrested for another DUI tend to work out, at least in the short run. A while ago, I was at a Driver’s License Hearing for a Client. He had picked up his 2^nd, and last DUI in 2005. Yet, unlike most people filing a License Appeal, he did not stop drinking the night of his last Arrest. He continued to drink for the next year.

The Hearing Officer asked him about this, and I found his answer to be very enlightening, and relevant to our current discussion.

He stated that after his 2^nd DUI, he knew he needed to control his drinking. As he put it, he was still in denial about having an alcohol problem. He then went on to point out that for the next year, he DID manage his drinking. He didn’t have a single problem. One day, however, when he was giving the issue some thought, 2 things came to mind:

First, he noted (and as I pointed out above) a “normal” drinker doesn’t have to have a plan to manage or limit his or her drinking.

Next, and more important, he realized that, as he put it, no matter how much he tired to manage his drinking, to use his words, “I had it in me. I had it in me to go out one night, totally intending to just have a beer or two, and winding up Arrested again” because he could not deny his past experience in planning that same thing, only to wind up getting a DUI. He then likened his drinking to a deck of cards, and said that losing control was like there being a wild card in the deck. One day, unexpectedly, that card would turn up, and he’d be in trouble again, despite all of his plans to the contrary.

And he further explained that this realization was a lot harder to reach because he had never been a big or frequent drinker. In fact, standing in his way of understanding he wasn’t a normal drinker was his notion of a person with a drinking problem being a heavy or frequent drinker. When he began to understand that frequency was not central to having a problem with alcohol, and it was more the quality of the person’s relationship to drinking rather than the frequency with which they drank, he began to think of his relationship to alcohol as toxic, and risky.

This dovetails right into the next consequence of a 2^nd Offense DUI, the Driver’s License Revocation. Before we get to that, let me assure the reader that, if they choose to call me for DUI Representation, I’m not going to jam some notion of them having an alcohol problem down their throat. I will point out how they will be viewed by the Court, and, as we are about to see, by the Secretary of State, and let them come to their own conclusions. In fact, if there’s one lesson you can take to the bank, it’s that a person MUST come to realize they have an alcohol problem on his or her own. You cannot force this issue, despite frequently the well-meaning efforts of friends and family to do just that. If you don’t think you have a problem, I’m fine with that. However, you do need to realize that even if you think that, and even if it’s true, in almost every case, your Judge is going to think differently, and it is never a winning strategy to argue with the Judge.

Now, let's turn out attention to what is undoubtedly the most important, real-life consequence they will endure: The Mandatory minimum 1 year Revocation of their Driver’s License. Following that, we'll see how a person can be proactive, rather than reactive, in terms of helping to minimize the consequences of a 2^nd Offense DUI, and how all of this relates to the legally-required PSI, or Pre-Sentence Investigation and alcohol assessment test that must be completed before the Judge can Sentence them. Anyone who dealt with a 1^st Offense DUI in Michigan has already been through this, and will likely remember their meeting with a Probation Officer as part of the whole process from that 1^st Offense.

While it’s understandable that most people are, first and foremost, concerned about staying out of Jail, the biggest “whack” they are going to receive for a 2^nd Offense DUI that is not “knocked out” is the loss of their Driver’s License. ANY 2^nd alcohol-related traffic Offense (meaning any 2 DUI’s, or a “Zero Tolerance Minor with BAC .02 to .07” and another DUI) within 7 years MUST, by Law, result in the person having their License Revoked for a minimum of 1 year.

Let’s be clear about what that means. Technically speaking, a Revocation for a 2^nd DUI is a lifetime Revocation, meaning that the person will NEVER simply get their License back, until they Appeal and are approved by the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD). If a person moves to Australia for 45 years, get a License there, and comes back to Michigan, the Secretary of State will NOT give them a License until they go through the whole Driver’s License Restoration Appeal process.

The fact that I have nearly 100 highly detailed, informational articles about this very subject on the Driver’s License Restoration section of my blog should be enough evidence that this is a very complex subject. While there is no way to really summarize it here, without making this a book, rather than a section of my website, the 2 key components of winning back a Driver’s License that has been Revoked for 2 DUI’s within 7 years are:

1. The person must prove, by clear and convincing evidence, that their alcohol problem is under control, and
2. The person must prove, by clear and convincing evidence, that their alcohol problem is likely to remain under control.

In the real world, proving the first issue means proving the person has not had a single drop of alcohol for a certain period of time, usually AT LEAST a year prior to the Appeal.

Proving the second issue involves proving the person is likely to NEVER DRINK AGAIN, FOR THE REST OF HIS OR HER LIFE.

This is a huge, and I mean HUGE undertaking. In the year 2010, for example, the State received 875 Administrative Appeals, meaning Appeals by mail, and it Denied 650 of them, meaning that three-quarters of all such Appeals were DENIED.

For what it’s worth, I guarantee that I will win any Appeal I accept.

Anyway, the point here is that absolutely NO ONE will ever win a License back, after 2 DUI’s, by filing an Appeal and maintaining that they don’t have an alcohol problem. I counsel my Clients, at our very first meeting, that when the Hearing Officer first sees your file, he or she may not know whether you are male or female, black or white, or young or old, but they have already concluded that you have an alcohol problem.

Thus, what a person does right after their 2^nd DUI will not only impact the Criminal case, but will also impact their ability to win a License Appeal, or not. If a person is quickly proactive, and gets involved in some kind of counseling or treatment early on, beyond having a positive influence on the outcome of the 2^nd Offense DUI charge, it will pay dividends down the road, in a year or two, when they seek to have their Driver’s License Restored.

Not to make light of anyone’s medical condition, but a DUI is like early stage cancer; if it is attended to quickly, and intelligently, the potential for a better outcome rise dramatically. If a person takes a “wait and see” approach, there won’t be too much waiting, but what they’ll see is not likely to make them happy.

Of course, in any 2^nd Offense DUI case that is not “knocked out,” Probation is a given. The length of time of that Probation varies, again, more by location than anything else.

Probation often sounds like a great outcome when a person is worried about Jail. I have often said that when a person really thinks they might go to Jail, they will step up and offer to do anything to avoid it. At the time, Probation from Hell sounds like a great alternative to any Jail time.

Fast-forward a few months. Once the case has been resolved, and Jail avoided, and the person is dealing with being on Probation, those conditions can get old, real fast. Testing and counseling and classes and work program or community service and reporting and whatever else the Judge throws in can start to wear a person down. It is not uncommon for that same person who earlier said, “I will do ANYTHING to stay out of Jail” to later describe a difficult term of Probation by saying “This is bull$h**!”

Beyond keeping the Client out of Jail, the Lawyer’s job is to minimize the consequences the person will receive. While this is equally true in any Criminal case, 2^nd Offense DUI’s can easily result in a Probationary term loaded with what someone feels to be too many conditions. This, in turn, can set a person up for failure.

This means that managing and minimizing those consequences become job #1. And to do that, a person needs to understand the role of the Probation Officer and the whole Probationary, Pre-Sentence Investigation(PSI) process, as well as the mandatory alcohol screening test that is a part of that process.

It will be easier to understand this by taking the reader back to his or her first DUI. Typically, there is a first Court Appearance, and very often, a Plea or Plea bargain is struck. The Judge (or the Clerk at the counter) will set a Sentencing date anywhere from 3 to 6 weeks later. In the meantime, an appointment is made with Probation. Forms are filled out, an alcohol screening test (meaning a written test about a person’s history with and use of alcohol) is completed, and there is a meeting with a Probation Officer.

The result of this is what can be variously described as a “PSI Report,” a “Sentencing Recommendation,” or a “Screening Report.” While not everyone remembers this part of things, when the day of Sentencing arrives, the report is provided and must be reviewed by the DUI driver and his or her Lawyer. It is then submitted back to the Court, and the Judge reads it.

The very same thing happens in a 2^nd Offense DUI. The difference is that the Report, and the Recommendation it makes, are likely to be more robust, or fuller, than the one used in a garden-variety 1^st Offense case.

There is no way to overstate this: Whatever is recommended in that report is pretty much the blueprint, or script for what the Judge is likely to Order. Sure, a really good Lawyer can sometimes persuade a Judge to do things a bit differently than what is suggested in the Recommendation, but there will NEVER be a significant, wholesale departure from the Recommendation itself.

This makes obtaining a favorable Recommendation in the first place critically important. This is the single most important step in any DUI case that won’t be “knocked out” due to some evidentiary issue or technicality.

This is so important that it’s worth repeating: The Sentencing Recommendation can be seen as a blueprint for what the Judge is going to Order, so making sure that Recommendation is as favorable (meaning lenient, as in NOT loaded with every condition under the sun) as possible is the SINGLE MOST IMPORTANT THING IN PRODUCING A BETTER OUTCOME IN A DUI CASE.

Think back to the first case. Did the Judge, in any appreciable way, deviate from what was recommended? Anyone who remembers this is likely shaking their heads “no” as they read this.

In my Office, once I know a case is not going to get dismissed for some evidentiary or technical reason, or is otherwise strong enough to make a conviction a foregone conclusion, I begin preparing my Client immediately for the PSI Process. Usually, my first meeting with a Client lasts about 2 hours.

And we will regroup thereafter to make sure that, when they walk into that Probation Office, they are as well prepared as can be humanly managed to make sure they do as well as possible in the PSI process. There are no shortcuts here, and no “throwing money” to make this any easier. It takes time and effort on both my part, and on the part of my Client.

However, if a person is willing to follow directions (and let’s face it, at this point, it’s probably not a bad idea for the DUI driver to give up trying to run the whole show for a while), then I can produce the best, meaning most lenient outcome possible under the particular circumstances of their case.

Facing a 2^nd Offense DUI is intimidating. And it should be. A 2^nd Offense DUI is a serious charge, and it potentially, as in realistically, and not just theoretically, carries some serious consequences. Seeing if there is ANY way to get out of the whole mess is, of course, the first inquiry, and the best of all possible outcomes. As I have noted, however, those situations are far more the exception, and not the rule. When a case is strong enough to move forward, unless there is some viable plan to “knock it out,” then making sure the Client stays out of Jail and otherwise avoids as much “fallout” as possible is the Lawyer’s job. When I handle a 2^nd Offense DUI, I put hours and hours of effort into making sure my Client is as well prepared as possible to do as well as possible at the most critical juncture. I will make sure that we produce the very best, meaning most lenient outcome humanly and legally possible. For their part, the Client has to be willing to step up and do a few things. Given the alternative, there really is no alternative.