3rd Offense (felony) DUI - Part 1 - Overview and the Law

A 3rd Offense OWI (Operating While Intoxicated) is a big deal.  In Michigan, it is a felony.  However, there is some good news, because most of the possible legal fallout for a 3rd offense sounds a lot worse than it really is, especially here, in Metro-Detroit.  In other words, things don’t usually turn nearly out as bad as it you initially fear.  

That’s not to say a 3rd offense is a walk in the park, but if things are handled properly, many of the potential penalties can be avoided, and you don’t have to worry about going to prison and having your life turned upside down.  In some cases, you don’t even have to worry about losing your driver’s license.  

Let’s start by taking a look at the maximum possible penalties provided by law for a 3rd offense OWI in Michigan:

$500 to $5,000 fine, and either of the following:
1 to 5 years imprisonment
Probation, with 30 days to 1 year in jail.
60 to 180 days community service.
Driver's license revocation and denial if there are 2 convictions within 7 years 
or 3 convictions within 10 years. The minimum period of revocation and denial 
is 1 year (minimum of 5 years if there was a prior revocation within 7 years).
License plate confiscation.
Vehicle immobilization for 1 to 3 years, unless the vehicle is forfeited.
Possible vehicle forfeiture.
Vehicle registration denial.
6 points added to the offender's driving record. 

As I pointed out above, this all sounds a lot worse than it will likely turn out, at least here, in the Tri-County area (Wayne, Oakland and Macomb Counties).  As I also just noted, many of these penalties can be avoided outright, while others are often minimized.  

If you’re looking for DUI lawyer because you, or someone important to you, is facing a 3rd Offense charge, you need someone highly qualified to actually help make things better.  That begins with a clear and honest explanation so that you understand your situation, and what can be done about it.  In this opening section about 3rd offense DUI's, we’re going to do just that.  

We’re going to break our examination of OWI 3rd offense into 5 sub-sections:
  • In this first part, we’ll define and overview the penalties and realities of a 3rd offense DUI.  
  • In part 2, we’ll talk about how you should go about looking for a lawyer.  
  • Part 3 will examine the key role of the evidence.  
  • In part 4, we’ll look at how the location of a case directly affects its outcome.  
  • Finally, part 5 will wrap things up by exploring the most important part of any DUI case, and a 3rd offense in particular: the sentencing recommendation and your relationship to alcohol. 
Let’s start off by clarifying the term “3rd offense.”  In the state of Michigan, there is no higher DUI than a 3rd Offense. A person can have 8 prior drunk driving convictions, but if he or she is arrested for number 9, it will also be called a “3rd offense,” or a “third offense.”  

The rules about time and how long between offenses doesn’t apply to 3rd offenses at all.  For example, in Michigan, a person can only be charged with a 2nd offense DUI if the conviction for his or her 1st occurred no more than 7 years before the arrest for the 2nd.

It doesn’t work like that for a 3rd offense.  

As long as a person has been convicted of 2 prior DUI’s, no matter how long ago either of them took place, an arrest for a 3rd drunk driving at any point in a person’s lifetime can be (and usually will be) charged as a 3rd offense felony.

Because a 3rd offense DUI charge is, in fact, a felony, the case must start in the local, district court for the city or township where the arrest took place and, unless it’s plea-bargained there to a 2nd offense misdemeanor there, will be transferred, or “sent up” to the circuit court for the County in which the case is pending.  

A 3rd offense DUI begins with an arraignment, where bond is set and dates are given for a probable cause conference (PCC) and a probable cause hearing (often called a preliminary examination).  In addition, you’ll be ordered to not consume any alcohol, and be required to test to make sure you don’t.

A 3rd offense DUI case follows the same process as any other DUI, except that, because a 3rd offense is a felony, following the arraignment (which cannot be waived because precisely because the charge is a felony), the first substantive proceeding, held in the district court, will be a probable cause conference.  

Under Michigan law, when someone is charged with a felony, the parties will first convene for a probable cause conference (sometimes called a “pre-exam” and often designated as a PCC).  

Michigan law also requires that a probable cause conference (sometimes called a preliminary exam) be scheduled within 21 days from the date of arraignment.  The probable cause conference comes first, and its main legal purpose is to determine if there will ultimately be a probable cause hearing.  To help understand all this, a little explanation is in order :

Most cases never go to a probable cause hearing (aka preliminary exam).  In reality, the probable cause conference is much more informal, and involves the prosecutor and the defense lawyer talking about the case with the goal of “working it out.”  When it happens, it’s most often at a probable cause conference where a plea bargain that reduces a 3rd offense felony down to a 2nd offense misdemeanor is negotiated.

There can be multiple probable cause conferences, just like there can be multiple pre-trials.  The only legal sticking point is that if these meetings will go beyond the 21 days within which a person is legally entitled to have his or her probable cause hearing (preliminary exam), he or she must agree to waive the 21 day requirement.

A lot more than just plea bargaining takes place at these initial PCC meetings.  All kinds of legal issues are discussed between the defense lawyer and the prosecutor, including things like sentence bargains, sobriety court, and so on.  If a case cannot be settled at this stage, it is most usually “waived up” to circuit court.  

As I noted above, a probable cause hearing (preliminary exam) is held in VERY few 3rd offense DUI cases, primarily because they aren’t any kind of mini-trial, but merely a preliminary evaluation of the evidence.

Technically speaking, if a person does decide to hold a probable cause hearing (preliminary exam), the prosecutor must present enough evidence to convince the district court Judge of 2 things:

1. That there is probable cause to believe a crime was committed, and
2. That there is probable cause to believe that the person facing the charge
     committed it.

This is a very low legal standard.  In the real world, what this means is that the prosecutor only has to persuade the Judge that it’s more likely than not that a law was broken, and that there is at least an honest, debatable question of fact that the person charged violated it.  

This may be easier to understand if we flip it around, because that explains why almost all preliminary examinations are, in fact, waived: after the prosecutor presents his or her evidence, unless the Judge can sit back and say something like, “Well, this case is total BS,” and then dismisses it for lack of evidence, the matter will be “bound over,” meaning sent to the circuit court for further proceedings.

In the overwhelming majority of felony cases, and especially 3rd offense DUI cases, there will never be an actual preliminary exam.  In other words, either the case is worked out as a misdemeanor in the district court, or it moves on to the circuit court.

As far as plea bargains go in 3rd offense cases, if there is some issue with the case or the evidence that makes it worth challenging, it is usually better, if possible, to negotiate a deal that takes a 3rd offense felony DUI down to a 2nd offense misdemeanor in the local district court.  However, there can also be any number of reasons (including those of prosecutor’s policy or defense strategy) why the case should or must be sent to the circuit court, instead.

When I can sit down with a client, in-person, and explain this, it’s all actually fairly straightforward.  However a detailed explanation here would eat up more space than it’s worth.  

The real-world takeaway for now is that in the vast majority of cases, the defense lawyer and the prosecutor will meet for any number of pre-exam conferences in the district court to discuss the evidence and/or in an attempt to work out a resolution of the case.  This either leads to a plea bargain in the district court, or the case moves up to the circuit court.

This will make more sense as we go through the next 4 sections.  For now, the point is that a whole lot can be done to make things better if you’re facing a 3rd offense DUI.  How well that happens, though, depends on the skill of your lawyer, the state of the evidence, the location of your case, and the sentencing recommendation and particulars of your relationship to alcohol.
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