2nd (Second) Offense DUI - Long Version - Part 3

In the previous Section (Part 2), we reviewed how and why a person can stay out of Jail in a 2nd Offense DUI, and what consequences they Judge will likely impose upon them.

In this Section, we will talk about what is undoubtedly the most important, real-life consequence they will endure: The Mandatory minimum 1 year Revocation of their Driver’s License. Then, we’ll turn to how a person can be proactive, rather than reactive, in terms of helping to minimize the consequences of a 2nd 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 1st 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 1st 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 2nd Offense DUI that is not “knocked out” is the loss of their Driver’s License. ANY 2nd 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 2nd 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this a book, rather than a section of my website, the 2 key components of winning back a Driver’s License that has been Revoked for 2 DUI’s within 7 years are: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 2nd 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 2nd 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 2nd 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, 2nd 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 2nd 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 1st 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 2nd Offense DUI is intimidating. And it should be. A 2nd 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 2nd 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.

>>Next: The Stop, The Arrest, and The Evidence