“Is it possible to avoid jail for a second offense OWI?”

If someone has told you there is no alternative to jail for Operating While Intoxicated – Second Offense, they are mistaken. There might be a way to avoid jail, even if the law requires incarceration.

It is Possible to Avoid Jail for Operating While Intoxicated – Second Offense

Judges, prosecutors, and even most defense lawyers will tell you that a conviction for OWI or Impaired Driving – 2nd Offense, requires a minimum of five (5) days in jail. This claim is not true. The misunderstanding of Michigan law is so pervasive that most lawyers believe jail is mandatory.

Specialized OWI and DUI lawyers with vast experience should know the ins and outs of the drunk driving law in Michigan, MCL 257.625. Under this law, driving under the influence, intoxicated, or impaired due to alcohol consumption is a crime. A first offense has a maximum possible sentence of 93 days. If the offense occurs within seven (7) years of a prior alcohol or drug-related driving conviction, thus a second offense, the crime is more serious, and the maximum possible jail sentence is one year. Additionally, the judge is required to do one or both of the following:

minimum of one five (5) days in jail, and/or
30 to 90 days of community service

The Mandatory Minimum OWI 2nd Jail Sentence is Waivable

Michigan law, as interpreted by the Michigan Supreme Court, authorizes judges to suspend mandatory jail minimums associated with OWI 2nd and OWI 3rd convictions if a defendant participates in and completes a specialty court program. If a sobriety court accepts and the defendant and they successfully complete the program, the judge is permitted to waive the mandatory minimum. Does this mean the defendant will not have to spend time in jail? Not necessarily. The statute permits but does not require a judge to waive jail time. Most Michigan judges will impose significant incarceration for an OWI 2nd unless a persuasive, compelling OWI defense attorney persuades them to do otherwise.

How to Avoid Jail for OWI 2nd

Because judges and attorneys almost universally accept that a second offense OWI requires jail time, a sentence with some incarceration is almost always ordered. Given the serious nature of a second or subsequent offense of drunk driving, it makes sense that judges routinely order jail at sentencing. On the other hand, alternatives to jail may be more appropriate and would be in the defendant’s and the community’s best interest. A defendant’s rehabilitation must be a court’s primary concern because the community is better off with a defendant who will not re-offend in the long term.

Getting judges to order a sentence against their ordinary practice is exceptionally challenging. Success is even more difficult when a prosecutor or the police push for a harsh sentence. An attorney must have the reputation, knowledge, and skill to smooth things over with law enforcement in these situations. To persuade the judge to focus on rehabilitation instead of punishment, the attorney must present a credible plan that demonstrates unequivocally that the defendant is getting meaningful help and has a good prognosis for not drinking and driving in the future. If the court accepts the lawyer’s plan as trustworthy and dependable, they may agree not to order any incarceration.

Alcoholics Anonymous and Substance Abuse Therapy

Determining what treatment is in the best interest of someone charged with a repeat drunk driving offense is complex and important. A defense lawyer is not qualified to create a treatment plan for a client unless they are also a licensed substance abuse therapist. To create a trustworthy and dependable plan, the defendant should submit to a professionally administered substance abuse evaluation. An evaluation is not expensive, and the results can be beneficial in court. Additionally, they can be the prescription for a much better, healthier life for the defendant. Although participating in treatment does not guarantee you will get no jail for OWI 2nd, it might make it more likely to get a favorable plea bargain and a lenient sentence.

Being proactive and entering early treatment can be the key to getting a low bond at an arraignment and instrumental in achieving a sentence without incarceration. In limited circumstances, a prosecutor may be so encouraged with a defendant who is sincerely and aggressively dealing with an alcohol problem that they may even agree to a plea bargain to a lower charge and a sentence without jail.

LEWIS & DICKSTEIN, P.L.L.C. is Michigan’s premier criminal defense law firm handling misdemeanor and felony alcohol and drug-related driving offenses. Our attorneys have decades of experience successfully defending clients and achieving extraordinary results. If you want your best hope of avoiding jail and getting your charges reduced, call us today.

Although no lawyer can guarantee no jail or a reduced charge, your best odds are with an attorney who will leave no stone unturned and do whatever is necessary to get you the best possible result.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.