DUI 2nd Offense in Michigan – Am I Going to Jail?

This installment will return to the subject of 2nd Offense Drunk Driving, or Operating While Intoxicated (OWI) charges. As a DUI Lawyer, my actual Practice is limited to handling cases in the District and Circuit Courts of Macomb, Oakland and Wayne Counties. I point that out because what I write here is the product of my experience in these Courts. I have no idea how things are handled elsewhere, and the outcome of any case pending beyond the Tri-County area might be very different from what I describe here.

I think it’s fair to say that everyone knows that there are essentially 3 kinds of DUI cases: 1st, 2nd, or 3rd Offenses. And everyone pretty much likewise knows that a 1st Offense is generally not that bad, and a 3rd Offense is a Felony, and a nightmare to boot.

What about 2nd Offenses?

The first thing to say about a 2nd Offense is that (if the case is not one of those few that are “beatable”), then how bad things will turn out for the Driver depends more than anything else, on where (what City) the case is pending. Certain Courts are just plain tougher on any DUI than others. In fact, a few Courts are WAY tougher on DUI’s than all the others. In the interests of good Lawyer diplomacy, I’ll say no more on that subject here.

Another very important thing about 2nd Offense cases, completely independent of where they’re pending, is that they represent the crossroads between having a serious alcohol problem, or not. Statistically speaking, anyone facing a 2nd Offense DUI has a much-elevated likelihood of having an alcohol-problem compared with the general population. In fact, a 2nd Offense automatically causes a person to be categorized as a “Habitual Offender” under Michigan Law. Amongst the many implications of that categorization is the Mandatory Revocation of the Driver’s License for at least 1 full year.

For anyone facing a 2nd Offense, beyond the relative leniency or toughness of the particular Court where their case is pending, the issue becomes whether or not this charge is the symptom of a much deeper alcohol problem, or is rather a case of repeat poor judgment. Try to imagine the Judge’s perspective: Every single 3rd Offense Felony Drunk Driver was, before that, a 2nd Offense Drunk Driver who probably said something like “it won’t happen again.”

Even if a person does not have an alcohol problem, it’s hard to deny that they look, at least to a Judge, like they have a problem obeying the law. From a Judge’s point of view, what’s the difference whether a person picks up a 2nd DUI because they have an alcohol problem, or an attitude (following the law) problem, or just exercises poor judgment? The person has demonstrated that they are a DUI risk, and, understandably, public safety concerns begin to trump all other issues.

I often explain to my Clients that facing a 2nd Offense DUI is very much facing a real Jail sentence. As I mentioned, there are some Courts (that I won’t go to for any amount of money) so tough that anyone convicted of a 1st Offense is almost certain to get some Jail time, and for a 2nd Offense is 100% guaranteed to spend some significant time in Jail. In other Courts, whether a person winds up in Jail or not depends on how things play out, while in a few, unless things go badly for the Defendant, seeing any jail time is not a substantially probability.

In the Tri-County area, I think it’s fair to say that the majority of Courts fall into that middle ground, meaning that the likelihood (or not) of going to Jail really depends on how things play out, and that, more than anything else, depends on how things are handled.

When I meet with a Client facing a 2nd Offense DUI, I tell them that we have to swing into action. Unless you have a plan to get the case dismissed, then being proactive, right at the outset, is the best (and only) plan to avoid spending any time in Jail.

For example, the Law requires that anyone convicted of a 2nd Offense DUI must undergo mandatory alcohol counseling. So why wait for the Court to assign some program that could be expensive, far away, and inconvenient? Why not get a jump start and get into a program that is affordable, nearby, and convenient, especially when to do so will help out in the early stages of the case? From my experience, it’s far easier to try and negotiate with the Prosecutor for a “No Jail” deal, or at least get them to back off on calling for incarceration, when I can show that my client has essentially “taken the bull by the horns” and has demonstrated the fortitude to quickly get into a program and get some help.

Anyone arrested for a 2nd Offense DUI is in an unenviable position, but that doesn’t mean it’s time to roll over and play dead. Instead, that arrest should be the starting point for taking the appropriate, remedial action.

Michigan DUI 2nd Offense and Driver’s Licenses

Can’t I just go to Court to get some kind of Restricted License?

As a Practicing Criminal, DUI and Driver’s License Restoration Lawyer, I explain something about this area of the law, to at least someone, pretty much everyday. In this Blog, I have tried to address questions that I hear again and again, and this article will focus on one of those. Anyone facing a 2nd DUI within 7 years will eventually learn that there is a Mandatory License Revocation, meaning that their License will be completely taken away for at least 1 year. Concerned about their ability to work, or go to school, or go to the Doctor’s, they ask:

“Can’t I just go to Court to get some kind of Restricted License?” Across the board, the answer is “No.”

Prior to 1998, the Court hearing a DUI Case had to impose the Licensing Sanctions on the Driver. Different cases, and different Courts produced often very different results in similar circumstances.

In 1998, Michigan overhauled its Drunk Driving Laws. That overhaul came to be known as the “Habitual Offender” legislation. Among the sweeping changes to the DUI laws in Michigan was the transfer of authority over all DUI Licensing Sanctions away from the Courts, and directly to the Secretary of State. After the laws went into effect, it was no longer possible for a Judge hearing a DUI to make ANY decisions whatsoever about the Driver’s License.

Moreover, the new law provided fixed, Mandatory Penalties for every kind of DUI (and Operating Under the Influence of Drugs) case. A 2nd Offense DUI within 7 years of the 1st results in a Mandatory 1 year License Revocation. A 3rd Offense within any 10 year period carries a Mandatory Revocation for at least 5 years. Interestingly, most people facing a 3rd DUI within 10 years are already painfully aware that their License will be yanked for a long time. They’re more concerned about “when” rather than “if.”

Let’s look at an example: Prior to the Habitual Offender laws, if a person got a 2nd DUI within 7 years, but had the charge plea-bargained down to a 1st offense, the Judge could issue a Restricted License after 60 days of full suspension. After the Habitual Offender laws took effect, however, the Courts no longer had any power over a Driver’s License. Beyond stripping the Courts of authority over a DUI Driver’s License and rather than take into account what Plea Deals a person had made, the transfer of that power to the Secretary of State simply required it to count the total number of Alcohol-Related offenses a person had accumulated over a period of 7 or 10 years.

If the number is 2 within 7 years, the Driver’s License will be Revoked for at least 1 year. If there are 3 or more within any 10-year period, then the License will be Revoked for at least 5 years from the date of the last offense. The law was made clear that when these Sanctions were applied, there was no appeal to anyone, and no possibility of getting a Restricted License whatsoever. Thus, the person in our example would have his or her License Revoked for at least 1 year, even if, in his 2nd DUI, he was able to Plead Guilty to a 1st Offense.

Of course, as the Lawyer for a person dealing with a 2nd Offense DUI, I am often asked questions like “How am I supposed to keep a job?” “How can I pay the Court if I lose my job because I can’t drive?” “How am I going to get my kids to and from school?” I have to remind the Client that I didn’t make the law. The answer provided by by the Habitual Alcohol Offender legislation is cold and hard: That’s your problem, and you should have thought of that before this happened.

I could go on all day about how unfair this is, and what we could do to make things a little easier, but that would just be a waste of time. The whole point of this Habitual Offender legislation was to make people think about the consequences before they ever get a 2nd DUI, and, if they do, to make those consequences stick. Realistically, the chances of any State Legislator proposing that we “loosen up” the License Sanctions for Drunk Drivers, much less there ever being any support for such an idea, is completely non-existent. And it probably always will be. As the saying goes, it is what it is.