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. 

I handle a good amount of felony DUI cases in Wayne County each year, and my clients always ask me if there is a way to reduce the case to a misdemeanor.  The answer is always, IT DEPENDS.

Depending upon your BAC level, prior history, if an accident or other offenses were involved, and your suitability for treatment and rehabilitation and some other factors, a decision will be made.  

Typically I speak to the assistant prosecutor in court, and discuss if the case is ripe for consideration.  The assistant knows his/her boss best, and will provide their feedback if a deviation letter is likely to get us a favorable answer.  Even if the assistant is not sure or doesnt think so, we still take the shot, but its always good to have an advocate upfront.

I put together a letter, which highlights all of the proactive steps my client is engaged in, which NOBODY else is doing.  My client looks like a rock star compared to other submitting the same letters. The letter points out all of these efforts, and discusses why the client's background, present situation and their future plans are worthy of this consideration. 

We usually get an answer the next day in court.  We've potentially created a non-felony option.  My client will weigh this option vs other options such as filing motions and holding hearings, or potentially going to trial.  My job is to create options, and put my client in the best position to make the best decision for their own life. 

If charged with a felony DUI in Michigan, your case will begin at the district court level with a preliminary examination. This would be a third offense or more, or a case, which caused serious bodily injury or death.

If charged with a felony, you are entitled to this hearing within 21 days of your arraignment, but can waive this timeframe if you wish to invest more time in conducting discovery, or working a proactive plan in order to open up some options for resolution.

A preliminary examination is put in place to “test” the evidence before the case can go to the circuit court level. The “test” is probable cause; is it probable based on the evidence that a crime was committed, which is named in the information, and is this the person that probably committed it. This is not a test of guilt or innocence, but a safeguard put in place to make sure that someone is not charged based on very thin or problematic evidence.

If there is enough evidence your case is “bound over” to the circuit court. This can be done by holding the examination and having the judge weigh the evidence, or both sides can agree to a waiver.

Many innocent people are “bound” over, because in DUI cases, there is usually enough evidence that it is probable the person arrested broke the law in some way with alcohol or a controlled substance.

For example, there may be evidence that the Defendant tested over the legal limited or had marijuana in their system when driving. That would make it probable that a crime was committed, but not quite guilty. This book is filled with defenses to cases where the Defendant “looks guilty”.

So how do you beat the case at preliminary exam? You can beat the case in two ways. An outright dismissal of charges, or a reduction down to a misdemeanor.

First, outright dismissal is rare for a DUI case, because there will usually be some triable facts, which are better resolved at trial, but what if there is concrete evidence that the Defendant was not the driver? What if it turns out that the roadway, which the Defendant operated was not open or accessible to the public? What if the traffic stop was bogus and the officer lacked a legal reason for conducting a traffic stop? These, and many other situations could lead to a dismissal.

Second, a limited number of counties in Michigan will consider dismissing a felony DUI case, and reducing in down to a misdemeanor. This is a possibility if the current charge is a “true third” meaning you’ve only had two prior offenses.

It helps if the priors are deeper in the past, and not recent, and if the BAC number is somewhat on the lower end of the spectrum, and there was no accident.

I’ve been able to have a lot of felony DUI cases dropped to misdemeanors, but those particular cases had clients who worked their butt off on my proactive program, and were willing to make major commitments to sobriety including daily testing, intensive treatment, and sometimes sobriety court or jail alternative programs like Impact Weekend.

If the case is reduced down to a misdemeanor then it will be handled at the district court level, because a felony is now off the time table along with prison time. A judge will still consider your past offenses, but has less in his/her bag of sentencing tricks, because the offense is now a misdemeanor. The prosecutor decides the charge, the judge decides the sentence.

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.

When I represent a DUI client with prior DUI offenses, it’s important to discuss the year of the offense, the court and the circumstances behind the case. Most of the time, a prior DUI offense is permanent, and can escalate the present day case into a second or third offense. It could also cause the Secretary of State to take more severe sanctions on your driver’s license.

In order for the prosecutor to prevail on either a plea or a guilty verdict for a second or third offense, they must prove the Defendant has prior convictions. The majority of the time, the prior convictions are stipulated by the parties, but there are exceptions.

Occasionally a client provides me information about a prior case, and there might be an opportunity to potentially a prior DUI conviction, and which would assist the present day case.
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An example of how to challenge a prior offense would be if the client plead guilty in the past, but was without legal counsel, hence the plea could be invalid. It would require going back to the original court to make this challenge; it doesn’t mean the old case goes away, but it would take away the “prior” for the new case.

This technique would require obtaining the old transcripts and court documents to invalidate the past plea.

I’ve already covered how my proactive program helps inside the courtroom with the prosecutor, judge, probation and outside the courtroom in my client’s life, but I also wanted touch on a few additional thoughts on felony DUI cases.

When you’re charged with a felony in Michigan, prison is now on the table. In Michigan, a jail sentence is a firm number, and usually ends up being less time served. When sentenced to prison, you only get a minimum number, but the maximum always remains in place; you must also be paroled out; there is no automatic return home date. Going to prison for a DUI case in Michigan can mean a very long time away from your friends and family. Although a third DUI in Michigan could mean up to 5 years in prison, and a DUI causing death could be 15 years in prison, jail is still the most likely outcome for felony cases.

In fact for a DUI third offense, there is a mandatory 30 day jail sentence that must be imposed by the judge. While work-release, house arrest and other alternatives were used in the past by judges, most Michigan judges are now following the 30 day jail minimum without these alternatives. In fact, most judges I come across usually have 60 to 120 days jail in mind when it comes to a third offense DUI.

When I work with a client who is charged with a third offense DUI, we may be able to work toward a misdemeanor reduction, which avoids a felony record, 5 years worth of prison on the table, possibility of keeping a driver’s license, and the mandatory jail sentence. This is quite rarely offered, but in some Michigan counties it is a real possibility. This result doesn’t just happen, it must be earned, and my program provides the tools and resources to get it done, and get it done well.

The first thing any client who is charged with a felony DUI does on my program is begin testing 2-3 times per day daily for alcohol. There is zero benefit of the doubt from anyone once you’ve had 3 or more DUI arrests. The client will also get into intensive counseling and hit an AA meeting 3-5 times per week. These are minimal considerations. I typically add a few other requirements into the mix.

Getting my client started on the program provides the client an opportunity to climb out of the very deep hole they have dug for themselves. It’s likely their own families and friends have turned on them at this point, and the community views them as nothing more than a very dangerous and untrustworthy criminal. I try to provide the client with something new, something they have never had in their life.
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I offer a rigorous program, providing structure and unlimited opportunity to change the perception of their case. Following my lead could mean avoiding a felony, jail, prison and loss of the ability to drive. Each felony DUI in Michigan presents it’s own challenges, but also opportunities to create a healthier client and a safer community. I will not even consider a client charged with a felony DUI if they are not willing to dig in deep, and follow my lead 100 percent.