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

In the previous Section (Part 1), we began our examination of 2nd 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 2nd 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 1st Offense cases, I like to point out that, with the 48th District Court exception noted above, no one facing a 1st 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 1st 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 2nd 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 2nd 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 1st, 2nd, or even 3rd (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 2nd 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 2nd 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 2nd Offense case, and how those things can play right into that “work.”

One of the characteristics of a 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 1st 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 4th 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 2nd, 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 2nd 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 2nd 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.

In the next Section, we will resume our discussion by examining the most important, real-life, consequence that anyone facing a 2nd DUI charge will have to contend with: the Mandatory, minimum 1 year Drivers’ License Revocation.

>>NEXT: Second (2nd) Offense DUI - Part 3

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Contact Us (586) 465-1980