July 31, 2015

The Traffic stop in Michigan DUI, Criminal and License Cases

Whether it's a drunk driving (DUI), driver's license restoration, driving while license suspended or revoked, or even a drug possession or indecent exposure charge, the overwhelming majority of the cases I handle can trace their beginnings to the operation of a motor vehicle. Criminal and driver's license cases as a result of something that was done in or with a car is something that I deal with every day, and almost all day long. A traffic stop can give rise to all kinds of legal issues (the most important of which is called "reasonable suspicion"), but the reality is that, beyond those issues, almost everyone I represent has found him or herself in trouble for something related to a vehicle. In driver's license restoration cases, I help get somebody back into the driver's seat. In all other situations, I help someone get out of trouble. In this brief article, I'll take a step away from my usual, informational installment and take a look at things from my side of the table, as the lawyer.

Thumbnail image for MSP Fall 1.2.jpgConsider this: A somewhat niche and unique aspect of my practice concentrates in indecent exposure cases. Almost every exposure case that I handle has taken place in a car. And while I've had a few "drunk boating" cases in my career, with but a few exceptions, every DUI case that has ever come into my office originated in a 4-wheeled vehicle. In today's world, everyone has a cellphone. The police can, and often do get a real time report of illegal activity (from a drunk driver to a driver exposing himself) from a cell phone tip. I've had countless cases where a tipster has remained on the phone so the police could locate a drunk driver as the caller followed him or her. "Suspicious activity" calls normally get a pretty quick police response, as well, especially in the suburbs. When you're 19, you might wonder why anyone would be concerned about your car driving around the same neighborhood at 1 in the morning; when you're a homeowner, you wonder what that car is up to, and when you're the police officer who stops the car and finds a bunch of kids with alcohol and/or marijuana, you wonder how they could be so clueless.

Of course, there are legal issues involved in the pulling over of motor vehicles, but the real world truth is that very few cases ever get tossed out of Metro-Detroit courts for an illegal traffic stop. Here is the big question I get asked all the time: "Don't the police need probable cause to pull me over?" The answer, and it may surprise you, is "No." The police merely need a "reasonable suspicion" to pull someone over. Once you're pulled over, they'll need probable cause to arrest you for something, but that's a whole different matter. The point here is that the law does not require an officer have "probable cause" to pull over a vehicle. Everything that happens thereafter, however, flows from that stop...

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July 27, 2015

DUI 1st Offense in Michigan - Dealing with the Stress

In this article, I want to return to the subject of a 1st offense DUI, and look at it from the inside, meaning how it feels to be the person facing it. In Michigan, we technically have no such offense as "DUI," so the phrase means either an OWI (operating while intoxicated) or a High BAC charge. For most people, a DUI is usually their first (and, hopefully last) real contact with the criminal justice system. It is stressful. I have seen many a grown man cry on the police car video, while being arrested, and it is not uncommon for people to cry in my office, as well. This is actually a good thing, because it means the person takes it seriously and is not callous or otherwise experienced at being arrested.

Thumbnail image for Anxiety-levels 1.2.jpgI think it's vitally important to know that it's okay to be nervous and it's okay to be afraid. You have all kinds of concerns and they are a natural part of what you're going through. You need to be able to feel better about your situation and have your concerns addressed and questions answered. While it is my goal here to alleviate your fears, it is highly unlikely that just reading "everything will be alright" (even though that's true) will make your worries just disappear. All the assurances in the world aside, it is important that you get accurate and honest answers to your questions, and not just blanket, broad-brush "feel good" promises. Remember, you're the one stressing out. This is not the time to be shy and wait to inquire about what matters most to you like it's some kind of polite afterthought. Write your questions out so you remember them. In my office, for example, a client is always welcome to come in with a friend or family member for support and/or to ask questions.

For many people, the police lights in the rear-view mirror make the stomach drop like a big roller coaster. Still, you experience this illogical hope that maybe you'll get through the traffic stop just fine. This explains why just about everyone, when asked by the officer if he or she has had anything to drink, responds by replying "a couple" or "two." Everybody says this, or something like it. Most people, however, begin to get a sense that this situation won't just blow over when they get asked out of the car. Usually, field sobriety tests follow next. A few minutes later, when the officer instructs you to put your hands behind their back, you get this raging flood of volatile emotions, including a mix of outright fear, regret and despair: How is this going to work out? I'm supposed to go home!

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July 24, 2015

Getting Sober - Michigan Driver's License Restoration and DUI

On both my website and this blog, I have written rather extensively about how sobriety is a necessary requirement to a successful license appeal. This is also the big turning point for someone facing a DUI, and who is determined to make it his or her last. I've tried to describe sobriety, distinguishing it as a state of being, rather than merely the state of not being intoxicated. In this article, we'll take one step back from all of that and look at the decision to really get sober. For anyone in recovery, this will always be amongst the most important decision of his or her life. There is absolutely nothing that can compare with the gravity and impact of decision to become clean and sober. In almost every case, the decision to quit drinking comes as a result of some emotionally significant, and usually negative event. In other words, no one quits drinking because it was working out so well. To be clear, lots of people quit drinking all the time, and often, many times, as well. Here we're talking about those decisions to quit that actually stick.

wpid-wp-1416178422589.jpegFor most people, the path of true recovery involves any number of false starts. The primary catalyst for someone to really "put the plug in the jug" is often described as an "epiphany moment," a "light bulb moment," or, more simply, as "hitting bottom." However one describes it, there comes a point when a person just "knows," in the core of his or her soul, that enough is enough. AA people sometimes describe this as "being sick and tired of being sick and tired." For just about everyone that gets to this point, drinking isn't fun anymore, and hasn't been for a while. Every attempt to cut down, control or manage one's drinking has failed. When you get honest with yourself, you see your drinking as having been the common denominator to many, if not all, of your life's problems. You don't rack up another drunk driving, or lose your license because your drinking is just fine. You've moved way past the ability to deny or rationalize any more, and you stand at the fork in the road: Continue drinking, and watch your life go down the tubes, or quit drinking.

From the outside, the choice is obvious. On the inside, it's much harder. Just because something is good for you doesn't mean it's easy to do. Quitting drinking is about a lot more than just quitting drinking; it's about changing everything you do, everywhere you go, and just about everyone you hang with. When a person decides to drink no more, he or she is also deciding to change his or her entire social life. For all the analysis that has gone into the subject of alcoholism and recovery, we've spent comparatively little time acknowledging the fact - and it is a fact - that when a person with a drinking problem suddenly removes alcohol from his or her life, there is a kind of adjustment, or "mourning" period that takes place. You don't seamlessly go from hanging out at the bar every weekend to sitting at home all by yourself. Some people find support in AA, while others don't, and just tough it out, but the point is that the wholehearted decision to quit drinking triggers an avalanche of life changes that take some getting used to...

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July 20, 2015

Michigan DUI and Medical/Professional Licenses through LARA

This article will be about DUI cases and medical and dental licenses, although much of what we'll go over is likely to be relevant to other kinds of professional licenses, as well. As a busy Detroit-area, Michigan DUI lawyer, a significant part of my client base holds various kinds of medical licenses through LARA, the Michigan Department of Licensing and Regulatory Affairs. LARA regulates all health care professionals, including physicians, nurses, pharmacists, dentists and dental hygienists, amongst others. On top of all the things one must muddle through when facing a DUI, just about everyone who holds any kind of professional license will have the added stress and task of dealing with the agency holding his or her license, as well. The good news, however, is that almost without exception, this never turns out nearly as bad as it seems.

Deductible-Medical-and-Dental-Expenses-3.jpgIn fact, the whole element of personal stress is an important side effect of a DUI charge. Most of my clients are professionals of one sort or another, and none of them takes a drunk driving charge lightly. Given the more cerebral nature of my clientele, I probably answer a lot more questions, both specific and hypothetical, than a room full of other DUI lawyers. My clients come in with serious and valid concerns, and usually lots of them. For some people, the lawyer whose best description of him or herself as "tough" and "aggressive" is a good choice, but usually not for the type of client I represent. Instead, my clients usually come in feeling like a black cloud has parked itself over their heads. An important part of my job is to help my client understand that while these "doom and gloom" feelings are understandable, at least early on, they are (and will prove to be) misplaced.

There are several considerations that dictate the character (a nice, replacement word for "seriousness") of a drinking and driving charge. Chief amongst them is where the arrest took place. Location matters in a DUI case, and probably more than any other single factor. It goes without saying that no one plans to get arrested for drinking and driving. A DUI case is, more than anything else, an accident of geography, meaning where you happen to be. The simple takeaway here is that some places are much tougher than others, and it's always better, if charged with a drunk driving offense, to find one's self in a more lenient jurisdiction than not. Beyond the "where" of a DUI is whether or not any given case is a 1st offense, a 2nd offense, or a 3rd offense. Admittedly, most professionals don't wind up facing a 3rd offense (felony) DUI, but it does happen. There is indeed a reason why the "where" issue was addressed first: There are some places where a 2nd offender may feel less harshly treated than a 1st offender in a different court. This, of course, is the exception, and not the rule, but anyone looking to hire a DUI lawyer will notice that, as he or she calls around, one of the first questions asked by the lawyer or staff is "where"? Usually, the inquiry as to whether or not you have any priors will follow thereafter...

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July 17, 2015

Ignition Interlock Violations in Michigan - What's your Plan?

Ignition interlock violations are an unfortunate and all-to-common reality for many people. There is probably nothing worse than having won your license back from the Michigan Secretary of State only to later have it yanked from underneath you. Worse yet, many of the cases I see, and certainly all of those I take, are for people who have genuinely stopped drinking. For a person who is really sober, an interlock violation just seems "wrong," and it is easy to think that all you have to do is just get a hold of someone and explain things. The cold reality, however, is that once you receive the notice of violation in the mail, it informs you that the decision has already been made to re-revoke your license. The only thing you can do about it is to promptly file for a hearing and try to win your license back - again.

technical-problems.gifFirst, it is important to note that there is a time limit within which you must file for a hearing. In the case of an interlock violation, you must request a hearing within 14 days from the date your license is revoked again. Technically speaking, this re-revocation is called a "reinstatement of original action," that original action being the revocation of your license. If you don't file your request within 14 days, then you will not even have a chance to get your license back. When someone hires me, my staff will take care of filing this request, and I cannot imagine that it's any different in any other law office. If a person has not hired a lawyer, then he or she should still send in for a hearing before the 14 days runs out. Any lawyer who comes on board thereafter can always catch up.

In the case of an interlock violation, the stakes are higher than just winning back the ability to drive again. If a person does not file for a hearing, or loses at a hearing, then the violation allegation(s) against him or her essentially stand as true. If, for example, it is alleged that Debbie the driver had 3 start-up failures within a few weeks, and she loses her hearing, her case file reads as if she got caught drinking and had her license re-revoked. The ramifications here are huge: Debbie's old sobriety date will no longer count. Whenever she tries to get her license back again, she will have to very clearly address the prior violation as part of her new case. Even if Debbie simply missed the deadline to file for a hearing on her violation, the fact that she didn't show up and contest the matter doesn't look good. Putting up a good defense is not only key to winning (or, in the case of an interlock violation, not losing), but also has important implications for the future, and that even extends to unsuccessful violation appeals...

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July 13, 2015

Michigan OWI 3rd offense Charge (with 1 or 2 old Priors)

Under Michigan's DUI laws, a 3rd offense OWI charge at any point in your life is a felony. This often comes as further bad news for someone who remembers when a 3rd offense could only be charged as a felony if a person had 2 prior drunk driving convictions within 10 years. Since 2007, however, the 10-year period for prior DUI's has been eliminated, meaning that a person who is charged with a 3rd DUI crime at any point in his or her life will face a felony. Once someone learns this, the next question, almost asked instinctively, is something like, "Doesn't the fact that I haven't been in any trouble for ___ (fill in the blank) years matter," or "Doesn't it matter that my last one was ___ (fill in the blank again) years ago"? The short, simple answer, at least as far as the 3rd offense DUI charge goes is "No." However, in terms of outcome, meaning the actual results of the case, the answer is decidedly "yes, it does matter."

Thumbnail image for Thumbnail image for Thumbnail image for Naslovna 1.2.jpgIn this article, we'll take a brief look at the situation in which a person who has 2 prior DUI convictions, and where one (or both) occurred more than 10 years ago (and maybe even way longer that that) finds him or herself charged with a 3rd offense (felony) drinking and driving charge. Without question, everyone who gets released from jail after a 3rd DUI arrest walks out in a kind of state of shock. For most people, the words "felony" and "prison" set off huge alarm bells. No matter how long between DUI's, the court system will just assume that the person has had a drinking problem since his or her first DUI all the way up to this most recent offense. By contrast, when a person picks up his or her 3rd DUI after a long time between any of the 2 priors, he or she may think this shows that his or her drinking is or has not been some kind of out-of-control problem. Things always look different from the "other side." Believe me, the Judge will see a problem; the performers facing the audience always experience the show differently than the audience in the seats looking at the stage.

In terms of experience and perspective, remember that the court system handles an endless stream of DUI cases and sees every kind of drinker, from people who get a single DUI and never get in trouble again to people who rack up 3 DUI's in a single year. The court system is inherently biased toward the belief that most DUI drivers have, or at least have an increased risk to develop a drinking problem. By the time someone is facing a 3rd offense charge, every Judge out there will conclude, as a matter of fact, that the person has a troubled relationship to alcohol. This means that if you're going to save your neck in this situation, you will either get in step with this way of thinking, or get rolled over by it, and let me be perfectly clear: Unless you get really lucky and the police botched your case so bad that the Judge just tosses it out of court, this is where your efforts and attention must be directed if you want to see the best and most lenient outcome possible in your case...

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July 10, 2015

Real Sobreity is key to Winning a Michigan Driver's License Restoration Appeal

The most important thing you need to win a Michigan driver's license restoration appeal is real sobriety. You must have honestly quit drinking, and done so for good. The whole point of the license appeal process is to make sure that anyone who is even considered for re-licensure has genuinely stopped drinking, and has the commitment and tools to remain alcohol-free for life. In legal terms, this translates into 2 issues: That your alcohol problem is "under control," and that it is "likely to remain under control." Once you've proven that you have stopped drinking, the more important consideration is that you will remain a sober, non-drinker, from there on out. In this article, I want to talk about sobriety, and how really being sober is a lot different than just not drinking, or not being drunk.

Quote 1.2.jpgTo win a license appeal, you have to show the Michigan Secretary of State, and its Administrative Hearing Section (AHS), the bureau that decides license restoration cases, that you are a safe bet to never drink again. When someone has lost his or her license for multiple DUI's, the Secretary of State will never get mixed up with any notion that he or she can safely have a drink once in a while. If you're ever going to win your license back, you have to prove that you and alcohol live in completely different worlds; different galaxies, really. This means that you must prove that you have gotten sober, and will remain sober. It's not good enough to show that you have just stopped drinking. You must show that you've quit for good; that you have, as the saying goes, put the plug in the jug.

Sobriety is, more than anything else, a state of being, or a state of mind. Almost everyone quits drinking after what is often described as "hitting bottom." Note, however, that I said almost everyone. There are some people (admittedly, a very small percentage) for whom the decision to stop drinking comes more slowly and more thoughtfully. However it's made, the next consideration is making that decision stick. It's easy to quit drinking, but much harder to stay quit. And as anyone in recovery knows, there is always this persistent little voice that always wants to tell you that it's okay to pick up. A client of mine once called that voice his "inner idiot." Another client said that being strong in recovery is the ability to not pay any attention to this little voice...

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July 6, 2015

1st Offense DUI in Macomb, Oakland or Wayne County, Michigan

For most people facing a 1st offense DUI in Michigan, the case marks their first adult contact with the criminal justice system. The sense of apprehension about what will follow can fill the coming days with a sense of fear and doom. In this article, I want to alleviate those misplaced concerns, not with the balm of patronizing reassurance, but rather with a simple overview of how things really work, and why that means, even in the most clear-cut of cases, that things aren't anywhere near as bad as they seem. We'll see that most of the things that people worry about don't ever happen, and that with some intelligent and proactive effort, we can avoid or minimize many of the other, less talked about consequences of a drunk driving charge.

Thumbnail image for tricounty_map 1.2.gifA DUI can, in theory, have up to 6 steps: Arrest, arraignment, pretrial, trial, screening and sentencing. In the real world (meaning in over 99% of cases), there is almost never a trial, and the arraignment stage can usually be skipped, as well. This means that most people will go from arrest to pretrial to screening, and finally to sentencing. Some courts will not allow the arraignment to be waived (skipped). This means, then, that you will go through 4 or 5 of the steps listed above. As noted, very few cases go to trial because almost none of those (0.17% - that's zero point one seven percent) ever win; more on that later. Accordingly, we wont waste any time talking about a trial that isn't going to happen anyway, and focus, instead, on the steps just about everyone will take.

Arraignment. You already know what happens between the time of your arrest and release, so there's little use in going over that. We'll begin with what happens after you get out of jail and get your car back. In some few cases, a Judge or Magistrate may have already arraigned you before you were let out of jail. In most cases, however, you will either be given a court date or instructions to follow up to learn when you're due in court. This first court date is called an "arraignment," and all it really amounts to is a proceeding where you're told exactly what charge or charges you'll face -OWI (Operating While Intoxicated), High BAC, DWLS (Driving While License Suspended) and/or Open Intoxicants in a Motor Vehicle. Also, your various constitutional rights are outlined. In most (although not all) local, Detroit-area courts, this arraignment can be "waived" by the lawyer you hire so that you don't have to go to court or do anything. Although not very common in 1st offense cases, some people wind up having to "test" as a condition of bond or release, meaning they have to provide breath or urine samples as required by the presiding Judge or Magistrate. This is one of those things that you understand rather well if (and because) you're doing it, and that we can otherwise explain later, if you're not and it becomes necessary...

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July 3, 2015

Driver's License Restoration Appeals in Michigan - The big Picture

I have written rather extensively about the need to be eligible to file for and then win a Michigan driver's license restoration or clearance appeal. In this article, I want to begin with an example of how a little-known facet of the license reinstatement process demonstrates a much larger, very important point: There are loads of little things that you will never understand by just learning the rules governing license appeal cases. Of course, your mandatory revocation period must pass before you can begin the license appeal process. Beyond that, the primary rule governing license appeals speaks of either 6 or 12 months abstinence as a pre-condition to win back your license, but that is only half the story. I recently wrote an article explaining that you must be off of probation to win a restoration appeal. The Michigan Secretary of State's Administrative Hearing Section (known as the AHS, and until recently the DAAD, and not that long ago, the DLAD) holds that anyone on probation or parole is living in what it considers a "controlled environment" because he or she is under orders to not drink, and therefore cannot really prove that such abstinence is voluntary. In the real world, this all boils down to mean that you need to prove more than a year of abstinence (I generally prefer to start with at least a year and a half), with a decent sized portion of that having accrued after your probation ended. You'll never get this just by reading the rules.

big_picture_title_thumb-1.2.jpgThe point I want to make is that even if you are a lawyer and memorize all the license appeal rules, you wouldn't know about the "controlled environment" holding unless you spend your time slogging through the trenches of the license appeal world and all the court decisions that interpret the application of those rules. The whole concept of a "controlled environment" is not in the rules, but rather part and parcel of how they are applied and interpreted. This is precisely why so many "do-it-yourself" appeals to lose, and why it's hard even for a lawyer, unless he or she concentrates in this rather niche field, to win these cases. It's usually what you don't know that will trip you up in license restoration cases. No matter how long you've been sober, there is a specific process to follow here. You need to know exactly what to prove and how to prove it, and that can only be learned through extensive trial and error.

I know a lot about license appeals, but to be perfectly honest, almost all of it was learned the hard way. The good news is that there came a point many years ago when I realized that I knew enough to know when I don't know something, and to be able to assess a case and, if I accept it, guarantee that I will win it. Yet there is no denying that I had to earn - and learn - my way to that point. The problem for anyone who tries and loses a license appeal is that whatever you missed, and no matter how sure you feel you'll get it right next time, that next time cannot happen for another whole year. Sure, some people do get lucky and win, but most do-it-yourselfers do not. A person can only file 1 driver's license restoration or clearance appeal per year in Michigan, so losing means bumming rides for another 12 months...

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June 29, 2015

The Single most Important part of Michigan DUI Cases

It is very easy to get caught up in legal and/or technical examinations of Michigan DUI charges. After all, everyone arrested for a drunk driving charge hopes that a sharp lawyer can find some problem with the evidence and get the whole case dismissed. And while that certainly can happen, such an outcome has always been the exception, and not the rule. In fact, the cold, hard facts, as verified in the Michigan State Police Annual Drunk Driving Audit, shows that in 2013, the last year for which numbers are available, only 511 regular DUI cases were thrown out of court, compared to a total of 32,752 convictions for those same offenses. If you do the math, you'll see that a mere 1.56 percent of people charged with OWI (Operating While Intoxicated) and OWVI (Operating While Visible Impaired) were lucky enough to have their cases dismissed. Here's the thing: It is always important to exhaust every possibility to get your case thrown out, but as these numbers clearly show, it is just plain dumb to bank on that as your entire and only defense plan.

important 1.2.jpgInstead of hoping to be part of the lucky 1.5 percent (511) whose cases get thrown out of court, it makes far more sense to prepare to make things better in the statistically far more likely event that your case does not (32,752) get "knocked out" by the Judge. And for all the stuff about traffic stops, breath tests and whatnot, the single most important real-world part of every Michigan DUI case is the alcohol evaluation (this is a written test) that must be completed and "scored," by law, before the Judge imposes sentence. Let me try to simplify this a bit: The overwhelming majority (98.26%) of DUI charges result in a conviction. Almost all of these occur through a plea, or plea bargain. Every case, except those few that are not tossed out of court, must follow the legal process and go through certain steps. The step that is the subject of our discussion here is the alcohol assessment that is required under Michigan's DUI laws. This is sometimes called an "alcohol screening," "substance abuse assessment," "substance abuse evaluation," or just plain "screening" by different Judges, but it all means the exact same thing: You will complete a written test ("screening instrument") and your responses will be checked against an answer key to determine your score.

The belief is that your score somehow accurately (enough, at least, for the legal system) determines whether or not you have, or are at risk to develop, a drinking problem. These "findings" are then sent to the Judge so that he or she can order, at sentencing, any counseling, education or treatment that it is believed you need. There are about ten million problems with this kind of reasoning, absolutely none of which will do any good in the context of making your DUI case any better. However, the screening is so critically important in determining what actually happens to a person in a DUI case that it became an important reason why I returned to a University campus and undertook a post-graduate program in addiction studies. I needed to learn things from the clinical side, since the whole screening process is really a clinical undertaking, even though in DUI cases it is administered and scored by a non-clinician. Now, because of that formal, specialized training, I can have a far more substantial and positive impact on the actual outcome of DUI case than anyone without such knowledge. Of course, the power to decide what happens to you always resides with the Judge, but when I walk into any courtroom, I do so as the foremost expert on alcohol issues, and that makes me very useful (and unique) as a DUI lawyer...

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June 26, 2015

How NOT to find a Lawyer for a Michigan Criminal, DUI or Driver's License Restoration Case

I write extensively about Michigan DUI, driver's license restoration and criminal cases. Occasionally, one of the topics I take up is how to find a lawyer. Contrary to what you might expect, I don't bend or twist my articles into some kind a long-winded excuse to just say, "Call me!" Of course, I am in business to make money, and although my driver's license practice is truly global (I handle Michigan clearance and restoration issues for people all across the country and beyond. One client, a U.S. Army Serviceman, came to see me on leave from Korea, and the week this article was written, I was hired by a former Michigander now living in Hawaii), I limit my DUI and criminal practice to the Greater-Detroit area (Macomb, Oakland and Wayne Counties). Thus, I realize that plenty of people who will never call or hire me still look for some guidance in my articles. In this installment, I want to warn the reader about a huge mistake I see people make all the time: Hiring a lawyer too quickly.

smart-consumer1.1.jpgAs much as I enjoy my work, I have no love for the legal "industry" and its marketing strategies. I have tried very hard to break that mold by writing informative and helpful articles on my blog and by doing all of my initial consultations by phone, rather than making a person come in for an appointment. I am still amazed that any lawyer would ever use completely meaningless and worn-out descriptions like "tough" and "aggressive," yet they do. I am even more amazed that it seems to work. In every occupation, experience is passed on from the veteran to the newbies. Some of the business "tricks" I learned as a young lawyer have never sat right with me, and, as a result, I have never used them, despite the likely potential lost revenue. Even so, I have done well enough that I am glad to have done it "my way." Perhaps the biggest things lawyers try to do, and in which I see little benefit to the client, is to hurry up and "sign up" any new potential case.

You can get a taste of this from those operations that advertise that their phones are answered 24 hours. Left out of that, of course, is that an answering service takes the calls during the night. Do you really think any lawyer answering his or her own phone on a Saturday night while out with the family, or at 3 a.m. any day of the week, would be anything less than dangerously desperate? Here is the thing: Even if you have court the next day, you can always get extra time from the Judge to find and hire a lawyer. And because you can, you should, even if you've waited beyond the last minute. If there is one thing to take away from this article, it is that you should never - absolutely never - hire a lawyer without having "shopped around" first. And the only lawyers who will tell you differently are those afraid of you checking out your options. Doesn't' that tell you something?

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June 22, 2015

Michigan Driver's License Restoration and the Required Standard of Proof

There are several things you must prove in order to win a Michigan driver's license restoration appeal, yet every bit as important that what you have prove is exactly how you have to prove it. In this article, I want to look at a subject that is absolutely critical, although largely ignored, in terms of winning back your driver's license: The legal standard of proof. Within both the driver's license restoration section of my website, and in the various license restoration articles on this blog I have simplified and explained the appeal process in detail. Here, we'll look away from the process and instead examine the standard of proof required to win a license restoration case. This facet of driver's license reinstatements is easy to overlook, but it plays an absolutely central role in every win - and every loss.

Scaler 1.2.jpgTo win back a driver's license that has been revoked for multiple DUI's, you need to prove a few things. It begins with the presumption that you have an alcohol problem. If you've lost your license for multiple DUI's whether you had 8, 4, or just 2, it is assumed, by operation of law, that your relationship to alcohol is problematic. The Michigan Secretary of State, through its Administrative Hearing Section (AHS, or what was formerly known as the DAAD or DLAD), will not even consider putting you back on the road until you demonstrate that you have lived and will continue to live a life free of alcohol. Legally speaking, this all boils down into 2 main issues: First, that your alcohol problem is "under control," and second (and more important), that your alcohol problem is "likely to remain under control."

By law, in order to win a license appeal, you must prove your case by what is called "clear and convincing evidence." This means, then, that "clear and convincing evidence" is the legal standard your evidence must meet. Your evidence is the proof (i.e., documents and testimony) you offer on the 2 main legal issues to be decided. That's simple enough, but what does it mean? Ask 3 lawyers to explain "clear and convincing evidence," and you are likely to get 3 very different explanations. For all there is to this (and there is enough to write a book), we need to focus on what "clear and convincing evidence" means to the hearing officer who will decide your license appeal. In other words, what really matters is making sure your proof is "clear and convincing" to the person who will rule on your case. Let's unwind this a bit...

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June 19, 2015

OWI (DUI) in Michigan - Location Matters

If you wind up facing a DUI charge in the Metropolitan Detroit area, one of the first questions any DUI lawyer will ask is, "Where?" In this article, I want to briefly overview how location matters in a Michigan operating while intoxicated (OWI) case. To be clear, I am going to shift the focus away from things like which court is tougher, which one charges more money and all of the other specifics that we could examine (until the end of time, no less), and look at the bigger picture.

Location 2.2.pngJust about everyone knows that for all things criminal, and particularly with respect to DUI cases, Oakland County is the toughest in Metro-Detroit's "Tri-County area (Wayne, Oakland and Macomb). This is not to say that either Macomb County or Wayne County go easy on DUI drivers, but as a rule of thumb, just about everything is tougher in Oakland. For every rule, of course, there is an exception. There are a couple of courts in Macomb County, for example, that are, on balance, tougher than a few others in Oakland County. There's nothing you can do about where you're arrested once it happens, but the point is that, for better or worse, location matters...

Every Judge I have ever encountered has his or her own way of doing things. This shouldn't come as a surprise, because every person in the world has his or her own way of doing things. It matters more however, in a DUI case, because the Judge deciding your case can influence your future in a very direct and profound way. Every court is different, just as every Judge is different, as well, even if they work in the same courthouse. This point couldn't be any clearer than in a local, Metro-Detroit court where one Judge runs a sobriety court, but the other Judge won't allow any of his cases to transfer to it. This is somewhat strange, because I take DUI clients from one court and transfer them to into an entirely different jurisdiction's court's sobriety court program all the time. I have even done this across county lines. Some sobriety courts will accept transfers from different jurisdictions while others will only take people from within their own system; every place is different. Where your DUI case is heard is, more than anything else, an accident of geography. There is nothing that can be done about the "where" of your case once you've been arrested. I've had loads of clients get arrested for a DUI across town from wherever they were going because they got lost and went the wrong way. This happens a lot in the Grosse Pointes. A recent client of mine left Detroit, trying to return to Ferndale and instead drove the opposite way until she was arrested for drunk driving in Eastpointe. Lucky for her, Eastpointe is as good a place as any to face a DUI, but the larger point is that while her getting arrested there was an accident of geography, location matters....

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June 15, 2015

Michigan Driver's License Restoration Appeal Substance Abuse Evaluation - The Prognosis

In the context of a Michigan driver's license restoration appeal, the substance abuse evaluation plays a critical and foundational role. There are 2 primary issues the Michigan Secretary of State Administrative Hearing Section hearing officer must decide in a license appeal case: First, that your alcohol problem is "under control," and second, that it is "likely to remain under control." It is the second issue that is the most important and the real "meat and potatoes," of a driver's license reinstatement case. It all boils down to this key question: Are you a safe bet to remain alcohol free? In this article, we will examine the substance abuse evaluation as a clinical assessment relative to that second issue. The main goal of this blog installment will be to focus on the importance of the prognosis section of the evaluation form. Accordingly, we'll restrict our inquiry here to how the prognosis section of the evaluation answers that key question.

unnamed 1.2.pngThe very term "substance abuse evaluation" is somewhat broad and vague. An evaluation is, after all, just that; an evaluation, or assessment. In this sense, the word "evaluation" functions as a verb, or an act. Someone evaluates you. And while that does, indeed, take place here, it is the final written product, meaning the substance abuse evaluation form, that we'll discuss. A substance abuse counselor undertakes the process of evaluating someone and completing the state's form. To add confusion to the mix (rather than clarity), when a substance abuse counselor does an evaluation, he or she is often called the "evaluator." Thus, the evaluator will evaluate the client and then complete the evaluation. We'll try to use more precise language here to keep things straight as we go along.

I would be remiss if I didn't point out something about myself that is directly relevant to all of this. Beyond just being a lawyer, and even a "driver's license restoration lawyer," I also have a formal, post-graduate education in the field of addiction studies. This means that I have been trained in the language used by substance abuse counselors. When a lawyer or hearing officer reads a substance abuse evaluation, he or she is expected to understand the legal implications of the information provided, and at least have a rudimentary concept of the more important clinical terms. When I look at an evaluation, I see all of the clinical and legal aspects clear as day - every last one of them. If there is ever a question about the clinical meaning of something on the evaluation form, or how the evaluation was completed, I can answer it fully because I speak the language of both the lawyer and the clinician. It is this specialized training and unique skill set that, in part, allows me to guarantee that I will win every license appeal case I accept...

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June 12, 2015

How much does a DUI Cost?

The cost of a DUI can certainly add up. A few years back, there was an ad campaign in Michigan that warned, "A DUI will cost you $10,000." Given inflation and the rising cost of everything, that figure still isn't far off from the mark. In this article, I want to take a current look at some of the real expenses involved for an OWI or High BAC charge in the Detroit-area (meaning the various courts of Macomb, Oakland and Wayne County). Make no mistake, a DUI is very expensive, and every year it gets more expensive; we'll get to actual numbers as we go. As a DUI lawyer, I'd be lying if I pretended that I'm not somehow in the line to get paid like everyone else, but at least I am trying to minimize all the other damage and payments you'll be making. DUI's are big business, and as much talk as there is about cracking down on them, lots of entities stand to make lots of money from them. We can debate the inherent hypocrisy of this some other time, but here I want to rough out an idea of what a Michigan DUI will actually take out of your pocket.

cash_register_ap_img 1.2.jpgAn important consideration right out of the gate is whether your case is a 1st, High BAC, 2nd or 3rd (felony) offense. While this may seem rather straightforward, in the real world, a 1st offense or High BAC drinking and driving charge often costs a lot more out of pocket than a 2nd offense, in large because of the increased car insurance premiums you'll pay. With the exception of those who go through sobriety court, a 2nd offender will lose his or her driver's license; as inconvenient as that may be, at least he or she won't be paying car insurance, so there is no issue about any increases to it. As we'll see, who brings the charge (either a particular municipality or the state) can also affect how much it will cost you.

Most 1st offense cases are "local," meaning that the attorney for the city or township where the arrest took place will handle the prosecution. For example, if you are arrested in Warren, Romeo, Richmond, Rochester, Rochester Hills, Roseville, Troy, Ferndale, New Baltimore, Shelby Township, St. Clair Shores, Sterling Heights, Utica, Macomb Township, Clinton Township, Dearborn, Detroit, any of the Grosse Pointes, Westland or any of about a million other cities, it will not be the state that brings charges against you. The upshot of this is where the money goes: If the case is brought by the "state" (the county prosecutor handles these matters) then the municipality does not get all of the money. When the locals bring the case, they keep the money. In practice, local Judges care a lot more about money that they get to keep than that which they handle - and then hand over - to the state. This helps, in part, to explain the high price of most 1st offense OWI cases...

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