A client charged with an OWI second offense in Michigan faces mandatory jail time and loss of license for at least one calendar year, more if there are additional prior offenses. Assuming you have one prior DUI in the past seven years, you need to strongly consider these two issues.
More importantly, what the heck is going on in your life that you picked up a second drunk driving? It doesn't make you a bad person, bad parent, employee, member of the community, or anything that can't be turned around, but it's really time to embrace help from outside sources.
A sobriety court in Michigan could help you avoid that mandatory jail, and potentially give you the ability to drive a car in the near future vs waiting a full year. The problem is your court MAY NOT have a sobriety court that is funded and approved by the State of Michigan. And if it does and you do not live within the jurisdiction, the sobriety court could say you're not eligible.
So here we are, we want to keep our license, avoid jail and get help, but all doors appear closed on us? Well not necessarily; I have successfully worked out sobriety court transfers in and out of many courts in Michigan. It's not always easy to ask a court to sign away power over your case after breaking the law in their city, township or village - even within the county. It's even trickier to get another court and probation staff to take one "someone else's problem" in a county or city which you didn't even break the law.
So how do we do this? We get to work, and demonstrate hard work, motivation and we're worth the extra screening, time, paperwork and effort by all parties. All of my clients begin a proactive program on day one, and this is the key part of working out this type of challenging transfer. It's not easy to get people to agree without previewing your performance and motivations.
If you or someone else has researched sobriety courts in Michigan, yet don't think you're eligible because of the court you're charged, let's talk about some options to get you where you need to be.
As a former prosecutor I worked on 1000's of drunk driving cases, and one of the main concerns of the person charges was their ability to drive. A person doesn't realize how important the ability to drive actually is until they are no longer able to do so. It means you can't drive to work, school, drive your kids or family around, go grocery shopping, leave the house to eat or entertainment. Losing your license can be a huge burden on a spouse or friends and family, and I have seen relationships ruined because someone can't drive their car.
One role that a prosecutor has in Michigan is on a circuit court hardship appeal. If someone violates the implied consent law for refusing a chemical test and that ruling is upheld on appeal, a petitioner (the defendant) has the option to file a hardship appeal with the circuit court on the basis of hardship if this is there first implied consent issue. Some counties will have a representative from the Attorney General's Office as a representative for the Michigan Secretary of State, while others will actually have the county prosecutor act as the representative.
The court is ultimately looking for a real hardship tied into your ability to work, go to school, perform obligations of your probation and other listed issues. They also want to be sure that public transportation or reasonable alternative accommodations are not available to the petitioner. If you lived down the block from where you work, you could not claim a legitimate hardship to get to and from work as a basis of receiving the license.
Many people walk into court and simply say "here is where I work, and here is where I live, I need to drive". That is lazy and not the most effective way to convince both a judge and prosecutor to OVERTURN a license suspension. Think about what that means - you violated the law (implied consent law), your license was suspended because of it, and now you're asking for that decision to be overturned, and all you're going to do is show where you work and where you live?
As a former prosecutor I witnessed too many of these situations go wrong, because people did not over-prepare and take the process as seriously as they should from day one. As a proactive criminal defense attorney, we may be shifting gears from our criminal case to the circuit court, but we can use all of our proactive accomplishments for these stage as well.
The most important parts will be the substance abuse evaluation and any subsequent following of that recommendation along with the daily alcohol testing. Neither is required, but the substance abuse evaluation is expected, and daily alcohol testing is usually the cherry on top of receiving the hardship license.
I can't tell you how many times I've been out in the hallway with the prosecutor/AG representative with another attorney, and all they have is "well it's his first implied consent, and he works 20 miles from where he lives" - I sometimes wish I was the prosecutor again so I could tell that defense attorney - "well he shouldn't have refused the chemical test, I'm not changing the suspension for you" - that's just lazy lawyering - the client could have done the same thing in court.
I have my substance abuse evaluation ready, AA meeting logs, alcohol insight class completion certificate, counseling letters and printout of our daily alcohol testing. We're showing the prosecutor that from day one we were open about learning from the situation, followed the recommendation of the health care professional, and you should grant this hardship, because my client HAS NOT BEEN DRINKING and here is proof of that. Not all petitioners are being alcohol tested or even on probation with a court so there's concerns about handing someone a license who is actively drinking - what better than to show proof that my client is not drinking?
I always believe in building consensus with a prosecutor, because I learned if you want to go toe to toe with a prosecutor, they will prevail more than they are defeated, because a judge is naturally more familiar with that person and it's the more conservative thing to do. Handing my client the ability to drive soon after a DUI incident is risky, and I acknowledge that - that is why my clients work their butts off to show they should be granted the opportunity to earn back the trust of the prosecutor, judge and community.
If I can get the prosecutor to sign a stipulated order for a hardship license in the hallway and we can walk into the courtroom and BOTH tell the judge we want petitioner to receive a hardship license, what's the judge going to do? Say no? Probably not. Some judges will still have concerns, especially newer judges or judges who are not that familiar with these type of proceedings, but I use the same proactive tools with the judge to get my client over the hump, and get them back on the road.
As a former prosecutor, I had no formal participation in an implied consent issue.
According to the Michigan Secretary of State:
"If arrested for drunk driving in Michigan, you will be required to take a chemical test to determine your bodily alcohol content (BAC). Under Michigan's Implied Consent Law, all drivers are considered to have given their consent to this test. If you refuse a test, six points will be added to your driver record and your license, or non-resident operating privilege, will be suspended for one year. A suspension of a license, or non-resident operating privilege, is automatic for any refusal to submit to the test. This is a separate consequence from any subsequent convictions resulting from the traffic stop.
If you are arrested a second time in seven years and again unreasonably refuse the test, six points will be added to your driver record and your license, or non-resident operating privilege, will be suspended for two years. If you refuse to take the test under the Implied Consent Law or if the test shows your BAC is 0.08 or more, your Michigan driver's license will be destroyed by the officer and you will be issued a 625g paper permit to drive until your case is resolved in court.
The Implied Consent suspension may be appealed to the Administrative Hearings Section. The request for hearing must be mailed within 14 days of the date of arrest or your operator's or chauffeur's license and vehicle group designation or operating privilege will be automatically suspended. You are not required to have an attorney at this hearing, but an attorney may represent you if you wish"
As you can see, the county, city, township or municipality prosecutor has nothing to do with this potential action on your license as it is not criminal and has no correlation to the outcome in the courtroom. Most defense lawyers stop here and take the prosecutor out of the case and try to go toe to toe with the police officer at the hearing. As a former prosecutor I barely even knew what the implied consent law was, because no defense lawyer brought it to my attention.
As a criminal attorney who is always looking for options for my clients, I further imagined this line also listed on the Michigan Secretary of State website
"Please note - A request by a law enforcement officer or prosecutor to withdraw a report of refusal must be received by the Department no later than the date of hearing."
This means that the police officer or the prosecutor can withdraw the refusal, meaning there is no need to hold the hearing and risk loss of license for a full year and six points on the driving record. Most prosecutors have never even heard of this power they have, and most would be too afraid to use it if not approached in the correct way. Same holds true for the police officers; if taken by surprise, they are unlikely to OVERTURN something in fear of getting in trouble or "being tricked".
This is a delicate subject to bring up to a prosecutor, and must be done in the right way. Outright seeking this outcome is usually turned down because the prosecutor isn't comfortable as they feel like they are trying to be fleeced or tricked into agreeing. I use the proactive items that my client has already achieved and continues to work on as I play the common sense/moral card. My client is working his/her butt off without being required to do so, and if we're going to be resolving the case together there is going to be some sort of license suspension, supervision of my client; why do we need to take the license away for a full year too?
In my experience once a prosecutor fully understands their unique and mostly unknown power, and my client's proactive accomplishments are brought to light, it just makes sense to work with us on mitigating the implied consent implications and coming to a mutual resolution of all issues. If we can bring the prosecutor into the implied consent case, we can come up with a universal outcome rather than treating the two issues as separate issues where you lose the ability to make a great overall deal for the client.
You win the implied consent issue by empowering and respecting the prosecutor.
What if my Michigan district court doesn't have a sobriety court, am I going to jail and losing my driver's license?
When charged with a second offense drunk driving, the two major concerns are mandatory jail and loss of license for a year. Under the law, a second offense DUI has 5 days mandatory jail attached to it, which is the minimum.
Many judges in Michigan will sentence clients to a longer term depending upon the facts of the case and the client's background and criminal record.
The judge does not decide the fate of your license, but the Michigan Secretary of State will take action on your license; if you have 2 convictions within 7 years, your license is suspended for a full 365 days. There are 2 ways to avoid this outcome.
Scenario #1 - You must get your case dismissed with a pretrial motion or win at a bench or jury trial. Depending upon the facts of your case, there may be a fruitful pretrial issue such as a bad stop, bad arrest or a problem with the evidence such as the blood or breath test.
Scenario #2 - You enter a sobriety court which is licensed by the State of Michigan. In Michigan, a sobriety court entry can override the one year suspension by the Secretary of State and grant a restricted license. An interlock will be required, and there is a 45 to 60 day waiting period prior to receiving the restricted license.
Not all courts have a sobriety court, and some courts require you to live in the jurisdiction to enter the court even though you offended in that court's jurisdiction. What do you do if you're not eligible for the sobriety court, or your court doesn't have one?
For clients in this situation, we seek a sobriety court transfer. Is that easy? No. Do most people receive approval? No, but my clients have had a lot of success in the past.
Why? Because my clients get to work on day one and we run down the sobriety court path on our own, mimicking many of the requirements of the court such as daily alcohol testing, counseling, AA attendance and education. If we can show a sobriety court that the client is already doing what would be required of them, they are more open to "taking a chance" on my client.
Creative solutions for avoiding mandatory jail and loss of driver's license for a DUI Felony Third Offense
Clients contact me all of the time with felony DUI cases; in Michigan, three DUI's can happen over a lifetime, even if the prior cases are 10 and 30 years in the past. Many counties in Michigan will not reduce or dismiss the felony charge, and consider a misdemeanor. That's until our law firm arrives on the case.
Because we're so proactive from day one, and make real changes in the life of the client, we're able to work out some creative deals with the prosecutor and judge to accomplish some big goals. Recently out law firm was able to take a felony DUI third offense and turn it into a misdemeanor DUI, which saved the client mandatory 30 days jail and up to 5 years in prison and we saved her driver's license by getting her into a sobriety court, because Michigan still follows the 3 DUI's in 10 years for purposes of your driver's license, and the sobriety court allowed her to avoid a hard suspension.
This deal was made in a county that had not reduced a felony DUI to a misdemeanor in years - other attorneys recognized this, and were shocked by the result - they asked what our secret sauce was for getting this result. It's simple, work hard, keep your head down, commit to making changes in your life - go harder than you've ever gone before, and kick some ass. Hard work is not a guarantee to success, but it's your best and only chance at shocking the world.
If you're arrested for drunk driving in Michigan, and you blow over the legal limit of 0.08, the police will take away your physical license. You will be issued a temporary paper license, but that license is a full license without restrictions. Your ability to drive is not impacted at this point.
Your license will only be impacted if your case is resolved where you plead guilty or no contest to a drunk driving charge or something like reckless driving. Even with this plea, nothing happens to your license when you leave the courthouse; the license action is only put in place once the Michigan Secretary of State receives notice of your case outcome, and takes action. You will be sent a letter from the SOS, which informs you of any suspension or restrictions. There is usually a grace period as well to make sure the letter is received and you're on notice of the action.
Michigan Drunk Driving - Out-of-State License
When a client is charged with drunk driving in Michigan, one of the first questions I ask my client is whether or not they have a Michigan or an out of state license. If a client has an out-of-state license, the most the State of Michigan can do to this license is sanction my client's ability to drive within Michigan, but not the other 49 states or outside of the country.
This only happens if the client resolves their case with a drunk driving result or they are found guilty at trial to the offense. No matter the end result of the case, the police officer at the scene will actually take away your physical license, and issue a temporary license.
Under Michigan law, the arresting officer must confiscate the Michigan license of a driver who allegedly either (1) refused a request for a chemical test at the time of the arrest or (2) took a chemical test that was offered by the officer or performed under a court order and that reveals an unlawful alcohol content.
Out-of-state driver’s licenses are not subject to confiscation. The officer then issues a temporary driving permit to the driver. MCL 257.625g(1). The temporary license has the same authority as your physical license, which was taken away, but it creates an uncomfortable situation when you're asked to show photo ID in your daily life.
An example of this would be if you're using your credit card to buy groceries and the cashier asks to see some photo ID. The last thing you want to do is pull out your paper license issued by a police officer due to your drunk driving arrest. I tell clients that they should go to their local SOS and request a State of Michigan ID, which is not a driver's license, but will fill the photo ID void until the client receives their physical license back. The client should retain their paper temporary license as well, which is actually their driver's license during the course of the case.
Michigan Driver's License Suspended, Revoked, Restricted - Impaired, OWI, Super Drunk and Felony - What will the impact be on my ability to drive?
When charged with a DUI in Michigan, there are a number of consequences; one of those consequences is impact on your driver’s license. The court has no say over what happens to your license, because the Michigan Secretary of State is the lone authority on what happens to your ability to drive if convicted of DUI offense.
The Michigan Secretary of State can only sanction a Michigan driver’s license, which means if you have an out of state license, Michigan cannot do anything other than control your ability to drive within the State, but not outside of the State.
The Secretary of State can either restrict, suspend or revoke a driver’s license. A restriction allows some driving, typically to school, work, medical appointments, community service, counseling, court and a few other exceptions. A suspension can take away the driver’s ability to drive for a limited period of time, and once the time passes, the driving privileges resume. Revocation is a lifetime loss of driving privileges, but they can be restored by the Secretary of State at a future, but uncertain date.
License impact depends upon the type of conviction. Here is a brief breakdown of the most common offenses.
* Impaired Driving - 90 days restricted driving
* Zero Tolerance - 30 days restricted driving
* Intoxicated Driving/Drugged Driving - 30 day suspension, 150 days restricted
* Super Drunk - 45 days restricted driving, 320 restricted with ignition interlock installed
* Second Offense - 1 year suspension
* Third Offense - license revoked, eligible to reapply after 1 year
In Michigan, the criminal penal code says it’s a second offense if you have two convictions within seven years; the date of offense is used on the subsequent offense to make this determination. So if you were convicted on September 2nd 2001, you would fall into the second offense category if you are subsequently arrested on or before September 2nd 2008. For a third or more offense, there is no time limit; it’s simply within a lifetime. So you can have a conviction from 1950, 1999 and 2016.
There isn’t much strategy in timing when it comes to the criminal code; the best approaches are defeating the case, or resolution with a reduction, sobriety court or sentencing agreement. While timing for the criminal code can’t be impacted, it is the exact opposite when it comes to the Secretary of State.
The Secretary of State has the same seven year mark for second offenses, but they use the conviction date for measuring this period. This means that if you were convicted of a DUI on September 2nd of 2001, and subsequently arrested in the summer of 2008, there is a lot of strategy involved. If my client has decided to resolve the case or even go to trial, we make sure the “end” of the case takes place after September 2nd of that year, which would put us outside of the seven year window. The client if convicted would be treated as a first offender outside of the seven year window.
This strategy could mean the difference between losing his/her ability to drive for a full year vs being restricted for 90 days. This same strategy is even more crucial when it comes to third offenses.
Unlike the criminal penal code, the Secretary of State does use a ten year window. Many of my clients have two very old DUI’s from 10 to 20 years ago. While they will still be charged as a third offender, they can escape the license sanctions for a third offender with the right timing. There’s a chance a third offender could be treated as a second offender, or even a first offender with the right timing strategy.
Sobriety Court Drunk Driving Michigan - How do I get into sobriety court and can I drive a car and avoid jail for a DUI case in michigan
In Michigan, sobriety courts are voluntary programs for a defendant’s to enter as part of a drunk driving case. Sobriety court is for repeat offenders or offenders with very high BAC levels. Defendants are not forced into sobriety court, but it’s usually an alternative to jail time, and an opportunity to maintain your ability to drive when your license would otherwise be taken away.
When you enter sobriety court, you’re committing yourself for 12 to 24 months of drug and alcohol testing, sometimes daily, and a total commitment to sobriety; violations will send you to jail for the maximum allotted penalty. Essentially, you’re avoiding jail upfront, so if you mess up, you get the maximum.
If you enter a sobriety court which is approved by the State of Michigan, you could be eligible for a restricted driver’s license, which you would otherwise not receive without sobriety court. For example, if you are convicted of a second DUI within 7 years, your license will be gone for a year; enter sobriety court, and you might be back on the road in 45-60 days.
Sobriety courts are a great option for a client who is seeking the available resources of the criminal justice system, and are ready to embrace close supervision. The goal of the sobriety court is to reduce repeat offenses, get people sober, and head in the right direction.
Not all courts in Michigan have a sobriety court, and if they do, most require you to live within the jurisdiction of the court due to the need to supervise you when you are outside of the courtroom walls.
If my client is charged with a second offense DUI, or facing jail time for their case, and that particular court has sobriety case, then we put it on the table as a legitimate option. Because all of my client’s are proactive from day one, it’s an easier transition into the sobriety court mindset. Both the client and the sobriety court must agree to begin a working relationship. A client must be deemed a “good candidate”.
I have my clients screened and assessed early in the case by a substance abuse counselor, attend AA, participating in community service, alcohol and drug testing and engaged in substance abuse education. If my client selects sobriety court as their best path, we’ve already demonstrated a genuine desire to make changes, and head down the right path going forward. The interview and screening process goes a lot smoother when we’ve already checked off a number of boxes for the sobriety court team. Many times, my clients receive shorter stints in sobriety court, because they’ve been deemed to have made progress, which leads to obtaining a driver’s license in a shorter period of time.
When jail and loss of license is on the table, sobriety court is a great option when the strengths outweigh the weaknesses of a client’s case.
I’ve had clients save themselves months and years in jail, because together we put together a plan to earn a spot in sobriety court. The same clients who were going to lose their job, have to drop out of school, sell their homes and potentially lose their family were able to avoid that because they earned their license back by entering sobriety court. When a client of mine opts for sobriety court, I am extremely proud of them, because they know it won’t be easy, but it’s the best thing for them in both the short and long-term.
When a client hires me to work on their DUI case, and there’s an implied consent issue, we always discuss the backup plan of a circuit court appeal for a hardship license. Many times, the circuit court appeal stands a better chance at saving my client’s license than winning at the implied consent hearing.
The circuit court appeal happens after a decision is made on the implied consent hearing; this must happen within 63 days after the order of suspension is entered. The time can go beyond this with showing of good cause (up to 182 days).
The petition must be made in the circuit court of the county of arrest, and you’re only eligible on your first implied consent refusal. The standard to receive a hardship license is “hardship”. The petitioner must show why not having the ability to drive is impacting their job, school or other obligations. There cannot be an alternative option, hence the hardship, such as someone else to drive you.
I will have a client put together a comprehensive work or school schedule with maps and directions. We will research bus routes, cab fares and Uber fares. The goal is to show that driving to work is the only option, and there is no family member, friend or co-worker to assist. It would be a financial hardship and/or a huge time hardship to take cabs or public transportation.
Along with showing the hardship, my clients are already in counseling, going to AA, alcohol and drug testing and participating in community service. We need to show that if a judge is going to restore driving privileges that you’re not a threat on the road, and you have everything under control.
The first step is filing the petition with supporting evidence of the above proactive steps and transportation documentation. We then attend the court hearing where the Secretary of State can send a representative.
If handled directly, I can usually sit down with the Secretary of State person and stipulate to granting the hardship license. This means we no longer need to convince the judge, and most judges will defer to the two parties. Every time, but one time I was able to convince the Secretary of State representative to sign off on an order before the hearing. The one time that didn’t happen, the representative did not show and the judge granted it anyway.
From there we file the order with the Secretary of State and the new restricted license is granted and arrives in the mail soon after. This is how you win when it comes to hardship licenses in Michigan.
DUI Attorney & Former Prosecutor Jonathan Paul