May 2, 2016

MIchigan DUI Cases and Alcohol Testing

This will be an article about "testing" in Michigan DUI cases. As a DUI lawyer who concentrates his practice in Macomb, Oakland and Wayne Counties, I have watched testing as a condition of bond (release) has grown to become normal operating procedure in most Detroit-area courts. As a term of DUI probation, testing (both breath and urine) has become almost universal. My inspiration for this installment is about half editorial and half informational; half of me is frustrated at whole system and the sometimes unreasonable burden it places on people facing an OWI charge, and the other half of me wants people to understand this whole "testing" business, including, not coincidentally, the business of testing. The other day, a client called my office upset that he may violate the testing requirement of his bond. He's a decent, honest guy, and his concern was that no matter how hard he tries, how much water he drinks, or how long he waits, he cannot provide a urine sample with someone watching him. This might be funny in another context, but not when his shy bladder has the potential to put him in the crosshairs of being sent to jail.

antibiotic-lab-test-400x400.jpgIn a recent blog article about how a DUI can just "happen," I noted that an important part of my job as a DUI attorney is to play the role of diplomat, and help translate to each side what the other means, and why certain things are the way they are. This means that I have to explain to the client how things work, and why. Sometimes, there is no "why," and things are just the way they are. On the flip side, (like in the case of the guy who can't pee) I have to explain to the court how, despite appearances, my client is not simply disregarding its orders. This installment will be my attempt to explain the court's side of things to the reader as well as providing an opportunity to vent some of my own frustration about the problems caused by all the "testing."

It has been empirically validated that separating a person from alcohol is one of the best ways to help him or her get sober. It is also well known that DUI drivers, as a group, have a higher incidence of alcohol problems than the population at large. Given the automatic statistically increased risk of having a drinking problem DUI drivers bring with them, it is understandable that the court system likes to keep them away from alcohol. Of course, doing this flips the presumption of innocence concept on its head, but that is a very deep subject best saved for another time. For now, what matter is that many, if not most people arrested for DUI will be required to provide either a breath or urine sample during at least part of the time their cases are pending in court, and it is often a great big hassle that causes all kinds of headaches...

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April 29, 2016

Quality Time with your Michigan Driver's License Restoration and DUI Lawyer

As a Michigan driver's license restoration attorney and DUI lawyer, I sometimes describe myself as being like a "Q-tip," with one end of my practice being capped by DUI cases, the other end capped with license reinstatement appeals, and alcohol as the stick that connects them both. No matter how you look at it, alcohol plays a central role in everything I do. Because alcohol is so crucial to my day to day work, I completed the coursework in a University, post-graduate program of addiction studies in order to get a clinical understanding of the whole range of issues people have with drinking, from the development, diagnosis and, ultimately, treatment of alcohol problems. Based upon a recent comment, this article will be about what makes me different from 99% of the other lawyers fishing for your Michigan OWI or license restoration case. And although this article is about me, if you take the time to read it, you will learn what things really matter as you look for a lawyer, no matter who you ultimately hire. We can start this discussion with a simple question that has almost universal application, whether you're looking to hire a lawyer, doctor, dentist, plumber, builder, mechanic, or anyone: Why should I hire you?

tumblr_mx8xxneMPt1qk91wgo1_500.pngWhen you think about it, that question makes so much sense that it's actually easy to overlook. It may seem impolite to ask it outright (although I wouldn't mind answering it), but if you're not at least asking it of yourself as you sift through potential candidates for your own drunk driving or license appeal case (or anything else, for that matter), then you're going about it all wrong. "Why should I hire you" (as opposed to someone else), or "Why should I buy this product" (instead of another) is precisely the question that should be asked anytime you're shelling out money. In general, the correct answer is always going to be something to the effect that you believe that you're getting the best service or product, or are otherwise making the best choice for your particular needs. So what makes me different (or at least makes me think I'm so different) from every other lawyer?

The comment that inspired this article was actually the most recent of several similar comments made over the years to Ann, my senior assistant, by other lawyer colleagues. Recently, one of them was in my office to see me, and when Ann explained that I was in the middle of my usual 3-hour first meeting with a new client for a driver's license restoration case, the attorney said something like, "He spends too much time in those meetings." It wasn't meant in an offensive way, but as Ann later pointed out, that would pretty much be the assessment of 99% of all the other lawyers. As Ann further noted, 99% of those other lawyers DO NOT have 3 support staff employees (if they even have one) for just themselves; none of them handles as many license appeals in their busiest year as I do in a single month; none of them has a blog with anywhere near a fraction of the information and analysis I give out, and absolutely none of them provides a guarantee to win his or her client's license back, like I do. So yeah, I'm different, way different, but in a good way, and nothing could ever make me want to change that.

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April 25, 2016

Michigan License Restoration Appeals - Who is your Hearing Officer? - Part 2

In part 1 of this article, I began my updated examination of the Michigan Secretary of State Administrative Hearing Office (AHS) hearing officers who staff the Livonia hearing office, and who decide all the Michigan driver's license restoration and clearance appeals that I file, as well as the seemingly ever-growing number of ignition interlock violations that come about. In my role as a Michigan driver's license restoration lawyer, I appear before these same people day-in and day-out, and I have come to know how each perceives case evidence like the substance abuse evaluation and the letters of support. The same piece of such evidence may be interpreted differently by one hearing officer over another, and this is something you better know before your hearing. Part of the reason I provide a guarantee to win every case I take is that I always start with a genuinely sober client whose recovery is exactly what is contemplated as the "meat and potatoes" of a license appeal, and I wind up at the hearing conducted by a hearing officer whose idiosyncrasies I know well.

5661262_orig.jpgThis is important stuff, but as I hope the reader gleans, it's certainly second, or subordinate, to your being genuinely sober. I know these hearing officers as well as anyone, and I daresay I see them far more than just about any other lawyer, but none of that matters a bit if a person has not honestly adopted an alcohol-free lifestyle. I mention this because for all the time I've spent detailing how I know the hearing officers, they have come to know me, as well. There is no single case, and no amount of money that would tempt me to ruin my reputation for honesty in their eyes. It is often and wisely noted that it takes a lifetime to build and maintain a good reputation, but it only takes one stupid thing to destroy it. I strive to be the best lawyer I can be, but I'd much rather be known and trusted as honest, yet of only average skill, than I'd ever want to be known as incredibly talented, but not trustworthy. Not all of my license restoration or clearance appeal cases are perfect, but none of them is bogus, or based upon false information, and that's why I have my guarantee. We covered 2 of the hearing officers in the first part of this article; now, let's look at the other 3.

The New Nice Guy. This hearing officer is also a new to the Livonia lineup since my 2011 article, and I struggled to find a better description for him than "The New Nice Guy," especially because the hearing officer nicknamed "The Nice Guy" in the earlier article is still there, and still nice, but to overlook The New Nice Guy's natural kindness would be like trying to ignore the horn on a unicorn. Before becoming a lawyer, this hearing officer was a police officer in the Metro-Detroit area. This means he knows how to handle people, question people, and size them up, and he knows how to do that as a matter of instinct, and without hesitation. Consistently friendly and pleasant, it doesn't take long to realize that he doesn't miss a thing - ever. I pride myself on being perceptive, but I realize that I'm lucky just to be perceptive enough to see how much more perceptive he is. It's kind of like having Sherlock Holmes as a hearing officer, except The New Nice Guy has a big heart. Perhaps because of his police training, his questions are never asked just to fill time, and are always directly responsive to the case before him. What's obvious through his questions is that they cut to the heart of the matter and probe whether the person really is sober or not. In that sense, it's almost like he has a built-in truth meter. This is obviously good for anyone who has genuinely quit drinking, but likely a deal breaker for anyone who is not. One of his more interesting traits is the ability to get to the core of an issue with only a few questions. Again, this isn't trouble for anyone who is really sober, but I can only imagine that it's sheer torture for anyone trying to pull a fast one. Still, for all of his skill, it is obvious that The New Nice Guy puts his heart into trying to discover the truth, and do the right thing.

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April 22, 2016

Michigan License Restoration Appeals - Who is your Hearing Officer? - Part 1

My job as a Michigan driver's license restoration lawyer involves a lot of license appeal hearings. Back in 2011, I put up a 2-part blog installment entitled "Driver's License Restoration Appeals in Michigan - Know Your Hearing Officer." This 2-part article will be a timely update of that article, because there has been a couple of changes to the lineup of the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers in Livonia, where my cases are heard, and because, frankly, it's time to refresh this very important subject anyway. The hearing officer is to a license reinstatement case what a conductor is to a classical orchestra. When you look at either a license appeal case or orchestral composition, everything is on paper, and, in a sense, both the rules of a license appeal and the music in a symphony are spelled out clearly, in black and white. A piece of music is what it is, but one conductor may have the orchestra play a passage faster, or more loudly, than another maestro. In the same way, each hearing officer sees things a little differently than the others, and each finds certain particular evidentiary points more important than his or her colleagues. In other words, each conductor and each hearing officer interprets what's in front of him or her in their own unique way. In a license appeal case, understanding how that works is critical to winning.

question-mark-face.pngIn a Michigan license restoration or clearance appeal case, the 2 main things you must prove are that your alcohol problem is "under control" and that your alcohol problem is "likely to remain under control." "Under control" means that you haven't had a drink for at least a year; I explain this by saying that you have to "fix" a sobriety date, even if you only know the month and year (for example, by saying something like, "June of 2011"). In my practice, I generally want a person to have been sober for at least 2 years, and I much prefer at least 3, and even more. "Likely to remain under control" essentially means that you are a safe bet to never drink again, which entails proving you have both the commitment and the tools to live an alcohol-free lifestyle. There is a lot more to a license appeal than this, but at least we have a frame of reference to start. Proving these things is primarily done by submitting letters of support and a substance abuse evaluation. How the hearing officer assigned to your case interprets this (and all the other) evidence is really fundamental to its outcome.

I have all my license appeal hearings set at the AHS office in Livonia, where there are 5 hearing officers. Because of the sheer volume of license appeals I handle, I wind up before the same hearing officers again and again - and again. I get to really know how they do things, and I am very familiar with the things they have in common, as well as the idiosyncrasies that makes a hearing before one of them different from a hearing before anyone of the others. This is important to me because the specific hearing officer assigned to your case significantly affects how we'll prepare for it. Beyond the various evidentiary or legal points in any given case that may be more or less important to one hearing officer over another, the way each hearing officer conducts a hearing is unique to him or her, as well. I simply cannot imagine a client walking into the hearing room without having been prepared for exactly what is going to happen, how the hearing is going to play out, what questions are going to be asked, and by whom. That last part is important because as it stands now, 3 of the 5 hearing officers prefer that the lawyer ask most of the questions. By contrast, and less than 3 years ago, standard operating procedure was for the hearing officer to ask most of the questions, so the whole idea of who will be asking the questions is now an important part of the hearing process and preparation for it. Therefore, when I know that I'll be asking most of the questions, I have to remember to include those that are of particular interest to the specific hearing officer deciding the case. In other words, even the questions that I ask changes somewhat from hearing officer to hearing officer.

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April 18, 2016

Michigan DUI and your Driver's License

In my day-to-day role as a Michigan DUI lawyer, one of the most common questions I am asked is something like, "What's going to happen to my driver's license?" This is often followed by an explanation of how the person needs a license to drive to work, or a question about what can be done so he or she can have a license to at least get to work. In this article, I want to answer those questions; those answers are, in fact, clear and simple, but sometimes the consequences are hard to accept. The whole point of this article is to make crystal clear what will happen to your driver's license in a drunk driving case. The rules governing what happens are fixed and inflexible, and as frustrating as that can be, it also simplifies things quite a bit.

600x400-Kevins2.jpgBefore I explain how a Michigan OWI charge affects a driver's license, I need to be a bit undiplomatic and stop a certain line of questions right in its tracks. People will often ask things like, "How do they expect me to keep my job," or "How am I supposed to get my kids to school." To be clear, if not cold, under the law, that's your problem. The rules are the rules, and if you can't drive to work and that means you'll lose your job, you need to understand that there is no "they," and therefore no person, mechanism or system that cares about, understands or who can otherwise do anything about your situation. There is nobody who "expects" you to do anything. Instead, there is a set of rules that applies when you get a DUI, and it applies no matter who you are, how much money you have (or don't) and whatever your personal situation. If you first accept this principle that these rules apply without exception, then it becomes much easier to understand what will happen to your license.

A common misconception, when someone facing a drinking and driving charge asks about his or her license, is the idea that the Judge, or the enigmatic and undefined "they," so often the target of the never ending "what about" questions, has anything to do with what happens. Let me make this very clear: What happens to your license is a matter of written law, and no one, including the Governor of the State of Michigan or the President of the United States, can alter, change, lengthen, shorten or otherwise modify any part of it. There is 100% absolutely NO possibility of going to court to "get" any kind of relief or change any part of what the rules require to happen, and there isn't even a procedure to do so anyway. In other words, trying to go to court to change what happens to your license is like trying to file a case in court to change the weather; it's not an option. With that established, let's move on to what does, in fact, happen to your license...

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April 15, 2016

Michigan DUI - Nobody Plans to get Arrested for Drunk Driving

As a Michigan DUI lawyer, I know that a DUI can just "happen." In the real world, nobody plans to go out and get arrested for a drunk driving offense. Yet the chances are pretty good that if you're reading this, either you or someone you care about is facing a drinking and driving charge, and probably wondering about the whole DUI process. An important role I play is to act as a kind of diplomat between the client and the court, and help each come to understand the other. That's not just a bunch of mumbo-jumbo, hot air from a DUI lawyer, either. To the court system, with its inherent alcohol bias, each DUI offender looks a lot like every other DUI offender, and comes into that system as an already-quantified risk. To at least most people facing a DUI charge, the system seems to overlook them as individuals who merely got caught up in an instance of poor judgment, and seems unfairly poised to presume that their drinking is a problem.

Thumbnail image for that-just-happened-thursday-link-party-L-rcbhzS.pngA big part of what I do is to "translate" to each side what the other is saying. Thus, to the client, I have to make clear that everyone, from the police to the prosecutor to the Judge (and even MADD which has significant influence over public awareness and opinion), sees drunk driving as a serious crime, and DUI drivers themselves as risky and scary. On the flip side, however, I have to make those prosecutors and Judges understand that my client is NOT simply a member at large of the DUI herd, nor the risky or scary drinking driver they fear. For all the stuff lawyers write about "the law" and all the confusing legal analysis out there, none of it is of any use whatsoever when a DUI charge is based upon solid evidence. You can read (or write) pages about the traffic stop and field sobriety tests, and all the things that could be wrong with a DUI case, but if there isn't enough wrong with yours to get it thrown out of court, then absolutely none of that will help you make things better. What really does matter is how skillfully your lawyer differentiates you from everybody else to both the prosecutor and the Judge during plea negotiations and sentencing.

I often say that success in a DUI case is best judged by what does NOT happen to you. Once a person gets arrested, he or she begins to realize that this whole DUI thing is a really big deal. Often enough, a person will contact me (or any DUI lawyer, for that matter) and explain how he or she cannot have or does not want a DUI on his or her record. The legal system is not set up for someone to tell the court what he or she wants. It doesn't work that way. I don't like paying taxes, but I can't just skip paying and tell the IRS that I need that money for something else. Since I can't get out of paying taxes, I have a great CPA who makes sure I get every break available. The same thing holds true in a DUI case. The difference, though, is that your lawyer should first look to see if there is a way out of the case, and if there isn't, then look to make sure that you get the best outcome possible, meaning as few consequences as possible. That will always involve making sure the court understands your DUI as an out-of-character incident that does not represent who you are as a person. In other words, that as regrettable as it may be, your DUI just "happened."

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April 11, 2016

The Sobriety Requirement in a Michigan Driver's License Restoration or Clearance Case

This real "meat and potatoes" of a Michigan driver's license restoration case focuses on whether or not you have really quit drinking. It only makes sense that the state makes sure a person is not at risk for another DUI by making sure the person can prove he or she is not a risk to drink again. Non-drinkers are simply not a threat to drive drunk. It is easy, perhaps to a point of oversimplification, to say that sobriety is a first requirement in a license restoration or clearance appeal. Similarly, it is easy to say that you're sober, but the test, both to win back your license and to remain alcohol-free over the long term, is whether or not you really accept that you cannot ever drink again. In this article, I want to look at the markers of real sobriety and how their presence helps a license appeal filed with the Michigan Secretary of State Administrative Hearing Section (AHS). Every so often, it becomes necessary for me to do an article like this to keep it front and center that you must have genuinely quit drinking to win your license back and to identify with those who have made the profound life changes involved in getting sober.

Sign.jpgNothing in life is perfect, but the "ideal" candidate to win a Michigan driver's license restoration or clearance case is someone who, after racking up multiple DUI's, has a "light bulb" moment (AA people call this "hitting bottom") and realizes that alcohol can no longer be in his or her life. From that point, pretty much everything changes. The drinking friends are ditched and there is no more going to bars or alcohol purchases.. At first, this requires a big adjustment. It's easy to quit drinking, but staying quit takes a lot of commitment and work. There is what could almost be a "mourning period" when a person first eliminates alcohol from his or her life. When friends call to go out, or the usual stop to pick up something to drink on the way home is suddenly cut out of a person's routine, there is a void, and it takes time to fill. However, for those that have really had their wake-up call and finally quit drinking, there soon enough comes a point where life gets a lot better. Another AA saying describes this well: "My worst day sober beats the hell out of my best day drunk." These are the foundational experiences of a person's recovery story and upon which we will build a winning license appeal.

No one quits drinking because it's working out so well. By the time most people get a 2nd or 3rd (or 4th, 5th, or even 6th) DUI, drinking has become a problem that affects more than just driving. Of course, plenty of people don't see it at the time, but hindsight being 20-20, most people can see this rather clearly in retrospect. And by the time anyone decides to quit, it's safe to say that drinking wasn't fun anymore. Perhaps part of the problem is that drinking and the activities that surround it become a habit, but not necessarily a physically addicting habit to everyone. In other words, even though a person may not be physically dependent upon alcohol, he or she may have no idea how to spend the weekends without it, or without the usual circle of friends who drink. Fast forward a few years, though, and instead of missing those friends, the sober person feels sorry for them, because they don't know anything better and haven't moved passed the miserable existence of working all week just to get f-d up all weekend.

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April 8, 2016

Getting an Official copy of your Michgian Driving Record for a License Appeal

An important part of my job as a Michigan driver's license restoration lawyer is determining when a person can and when he or she should file a license appeal. In 2 very recent articles, I examined the whole idea of needing a license and the distinction between being able to file the case as opposed to ready to win it. Usually, it's just easier to skip all of the analysis of eligibility and have me read over a driving record. I ALWAYS do that for free. All I need to know before I look at a record is whether or not the person has quit drinking. If you are unsure about your eligibility to file a license appeal, the advisability of doing so now, or doing so sooner, rather than later, you can just bypass all the confusion and send me your driving record. I can look over the most complicated record there is, and in a few minutes know exactly what to do, and when. In this very short article, I want to take a quick look at driving records in the context of Michigan Secretary of State Administrative Hearing Section (AHS) driver's license restoration and clearance appeals.

michigan-basic-driver-improvement-course-reviews.jpgGetting your driving record is not hard, but if there is one big point I want the reader to take from this article, it's that you should always - and only - get an official driving record through the Michigan Secretary of State. DO NOT, and I repeat here - DO NOT ever get your driving (or criminal) record through any online service other than that offered by the State of Michigan. The SOS charges $9 if you mail in the request form, and $8 if you show up at a branch office to obtain a copy of your record. This isn't about money, though, because even though all the "services" out there charge more than you'd pay for an official copy of your record, they very often provide inaccurate and/or incomplete information on those records. Understand that every official action that affects your driving record, meaning every bit of information accessed or submitted by a police agency, court, or the Secretary of State itself is obtained from or placed upon your official state driving record. This means that everyone who matters uses and reads the official format of your record. No one in any official capacity will ever look at or use anything other than your official Michigan Secretary of State driving record.

Every non-official record I've ever seen comes from a national company, meaning that they take Michigan's information and instead of understanding or using the state's legal and technical terms, will instead apply generic terms used elsewhere as they try to reassemble and understand what's on the official record. To me, that's like having the option to buy the official HD Blu Ray of your favorite movie for $9, or a crappy bootleg copy of it for $12. About the best example I can use is that in most states, driver's licenses are issued by a DMV, or Department of Motor Vehicles. In Michigan, we don't have that; instead our equivalent of a DMV is the Michigan Secretary of State. And while I go along with the flow and, like everyone else, use the term "DUI" for a drunk driving, the offense in Michigan is technically called OWI, or Operating While Intoxicated. We do not have any such offense as DUI, DWI, DUIL or OUI in Michigan. Given that pretty much no other state except Michigan uses the term OWI for drunk driving, it's not surprising that these internet driving record operations use the more common, but incorrect terms like DUI and DWI on their reports. In the real world, that's about as helpful as getting the assembly instructions for the a completely different product than the one you bought.

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April 1, 2016

How to Reduce the Stress of a Michigan DUI Charge

As a Michigan DUI lawyer, I fully understand the emotional stress that comes with a drunk driving arrest. In many of my various DUI articles on this blog, I often focus on specific legal or technical aspects of drinking and driving cases. In this short article, I want to take a broader, more "feel good" look at the benefit of dumping all the fear and stress of a Michigan OWI charge onto your lawyer's shoulders. In fact, I consider it an important part of my job to help people obtain some peace of mind right away. I'm certainly the only lawyer that I know of who makes clear that, almost without exception, a person is NOT going to go to jail in a 1st offense DUI case. I realize that part of the whole marketing tactic of some operations is to position one's self as the savior of the thing a person fears most, but that's not how I want to get my clients. I do, however, want my clients to come into my office with their concerns, and leave without them.

Blog_ReduceStress_Homepage 1.3.pngThere is enough real stuff to worry about in a DUI case; going to jail, at least in 1st offense (and many 2nd offense) cases is not one of them. Among the things that will happen, however, is that some restrictions (although lenient and temporary), will be imposed upon the driver's license, so concerns about how that will impact someone's employment is a lot more relevant than worrying about a jail sentence that simply won't be coming. Not exploiting someone's fears is a good thing, and as much as I believe it's my job to to help alleviate a person's stress, there is another, opposite marketing approach that makes it sound like getting a DUI charge to just "go away" is a mere matter of dropping your money on the right lawyer's desk. Everyone has heard the old saying that, "If it sounds too good to be true, it probably is." This is a prime, and often expensive, example of that concept in action.

Marketing research shows that the buying decisions we make are over 95% emotional in nature. This means that less than 5% of what we purchase is really based upon cold, hard facts alone. Of course, everyone of us thinks we're different, but the bottom line is that unless you're an emotionless Vulcan, like Star Trek's Mr. Spock, you're not. How many ads would you read that contained no pictures and no graphics, but were just black words on a white page? Perhaps a company could prove, in those paragraphs, that it's product was superior to all others, but they'd never get the chance, because no one is going to even notice, much less read a whole page of plain text the way they'll look at a slick ad with color and pictures. Experts teach that the goal of marketing is to create a desire in the target audience. In the DUI world, we want to hear that the things we fear will not happen. So what does this mean to someone facing a drunk driving charge?

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March 25, 2016

Driver's License Restoration in Michigan - Eligible doesn't mean Ready

As a Michigan driver's license restoration lawyer, I receive a lot of calls from people who need to win back their license. In a very recent article, I examined how simply "needing" a license doesn't matter. I pointed out that a person must first be eligible to file for a license appeal. In this article, I want to examine that subject a little closer, and focus on the difference between being legally eligible to file an appeal and having a real chance to win, because a person can be legally eligible to file for reinstatement of his or her license while not being anywhere near able to actually win it back. To get an idea of what I mean and and how the precise written rule can differ from its legal interpretation, consider that Michigan's DUI (drunk driving) law prohibits a person from operating (which you'd suppose means driving) a motor vehicle while intoxicated or over the limit. Yet through the years, the courts have interpreted (a term I use loosely because it can defy common sense and logic) the term "operating" to mean not only driving a vehicle, but also to include merely sitting in it, parked, with the engine running, and have even taken that further, to mean sitting in the car, even if it is not running, with the keys in the ignition. And while I disagree with lots of these "interpretations," people hire me with the assumption that I know this stuff and know how to work around it, not crash directly into it.

not-ready.jpgSo it goes with license appeals. A person may be legally eligible to file a license appeal but stand a million miles from having any chance to win it. Under the main written rules governing license appeals, a person must wait until his or her revocation period (1 year for 2 DUI's within a 7-year period, and 5 years for 3 DUI's within a 10-year period) has passed before filing for restoration of his or her driver's license. Realistically, that should be it, right? You wait your time and then you can file. Unfortunately, that's not how it works. Within the sub-rules, there are provisions that require a person to prove that he or she has been completely abstinent from alcohol for at least 6 months, and another that requires a person, under certain (meaning most) circumstances to have at least 12 months of abstinence. But hold on; there's more: Under other (rather common) circumstances, and despite being legally eligible to file an appeal and despite having 12 months of abstinence, the rules also permit the hearing officer to require a longer period than just the 12 months; but there's still more -

Court interpretations of the rules have gone on to further distinguish simple abstinence from what is termed "voluntary abstinence." This means that the year you spend on probation, not drinking, usually doesn't count, simply because you were on probation, were under an order to not drink, and subject to being punished if you did. This way of thinking (which is the law, as it stands now) holds that you cannot prove that you were "voluntarily" abstinent from alcohol while on probation. In the real world, this means that a person who was on probation for 18 months for his or her 2nd DUI, and who, according to the rules, was eligible to file a license appeal after 1 year, may not have any kind of chance to win back his or her license for the better part of 3 whole years. This is the kind of stuff you need to know before you go plowing ahead with a license restoration case that's doomed before you even start, just because you're legally eligible...

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March 18, 2016

Michigan Driver's License Restoration - Everybody needs a License

"Everyone needs a license," admits a hearing officer from the Michigan Secretary of State's Administrative Hearing Section (AHS). As a Michigan driver's license restoration lawyer, I know that all too well. My office is contacted every day by people who have lost their licenses after multiple DUI's and pour their hearts out, explaining how difficult it is to get by without the ability to drive. In some cases, a person has a great employment opportunity that requires being able to drive; in others, a license is needed just to keep a job. Needing a license, however, has just about nothing to do with whether or not you can win yours back. In this short article, I want to explain how you actually do win back your license, and make clear that needing it is NOT a consideration at any point in the legal process of winning a license reinstatement appeal.

waldhitch 1.3.jpgLet's back up from the point of restoring a driver's license to the point of losing it. Perhaps one of the most common questions I am asked when handling DUI cases, particularly 2nd offense and 3rd offense cases, is if there is some way the person can get a license for work. This question always follows my having explained in detail, and usually numerous times, that a 2nd or 3rd offense will result in a license revocation and that there is no "workaround." People will often begin their questions with something like, "How do they expect me to...?" I get it. Everyone gets it. You need a license, and you can probably even demonstrate a pressing need for one, but it doesn't matter. Anyone whose license has been revoked for multiple DUI's has probably already asked these questions and learned that needing a license was a non-issue back then. It still is. Before you can ever win your license back, you have to be legally eligible to file a license restoration appeal, and that doesn't happen until the mandatory period of revocation passes: 1 year for 2 DUI's within 7 years and 5 years for 3 DUI's within 10 years.

Even when you're legally eligible to begin the appeal process, needing a license doesn't really have anything to do with your ability to win it back. When you become legally eligible to proceed, you must also prove that you are sober, as well. From the Secretary of State's point of view, putting anyone back behind the wheel who presents as any kind of risk to ever drink again is unacceptable. There is a very important distinction here, because the Secretary of State (SOS) is not interested in any talk about just not drinking and driving again. Instead, its threshold inquiry focuses on whether a person is any kind of risk to ever drink at all. It is a basic assumption that anyone who is seen as a risk to ever drink again is likewise seen as a risk to drink and drive again. Thus, the only people who have any kind of chance to get back on the road legally are those who can prove, by the legal standard of "clear and convincing evidence," that they are a safe bet to remain completely alcohol free for life. In other words, you have to prove your sobriety, and that's where I come in...

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March 14, 2016

Michigan DUI - A Small but Important Observation

As a Michigan DUI lawyer with a local, Detroit area practice (Wayne, Oakland and Macomb Counties), I am in front of some Judge or other almost every day, and often in front of several Judges in any one day. I hear a lot. I've heard just about every spin a DUI lawyer can make for his or her client, and I've heard countless observations by innumerable Judges. No one is perfect, but most Judges get it right most of the time. Still, my job to "protect" my clients from as much of the consequence as possible from a DUI charge when we're in front of any judge. I have also come to believe that, simply because I can, it is my job to really help my clients outside of the courtroom, as well. In some cases, this means helping a person understand (or work with an understanding) that his or her relationship to alcohol has become problematic. This is why I undertook and completed the coursework in a post-graduate program of addiction studies. As much as most Judges get it right most of the time, I also sometimes hear well-meaning Judges get it wrong, or read well-intentioned, if not misguided probation assessments and recommendations that lack a fundamental understanding of the confluence of variables that give rise to drinking problems, how such troubled drinking is and/or should be diagnosed, and the panorama of viable education and treatment options available to genuinely help someone.

3KYo0Tf - Imgur.pngIn my day to day court appearances, I will often hear something that I think is right on the money. This blog article will not be my usual informational installment, but rather about one such thing that I really thought profound. I hope the fact that I think it's important enough to publish will encourage the reader to spend the few minutes necessary to finish it. The day before I started writing this article, I was in the courtroom of Bloomfield Hills' 48th district court Judge Kimberly Small when, during my client's sentencing, the Judge said something that really struck me as a simple, yet deeply meaningful observation. It was nothing that I can use to sell my services as a DUI lawyer, but rather something that cut right to the core of what drunk driving is all about and why the laws and public opinion are getting tougher. Indeed, one may see it as somewhat contrary to my own financial interests to write an article about the Judge's insight, but in the spirit of trying to say something good and useful, I could not ignore how fortunate I am to have this platform from which to share it. Later, on that same day, the news carried separate reports of 2 Oakland County Sheriff's deputies who got drunk and rear-ended a 70 year-old woman in Pontiac, sending her to the hospital, while another drunk driver smashed into a Detroit Police car. Circumstances and timing came together in a way to make this article very germane.

First, I need to be clear on my perspective. I do believe that, however unfortunate it may be, a DUI can and does just sometimes "happen." In most cases, driving drunk is an episode of bad judgment exercised by good people. In fact, even the National Highway Transportation Safety Administration (NHTSA) agrees with the rather well established principle that the typical person will begin to suffer some impairment of his or her judgment with a BAC level of 0.3% to .06%, putting .04% and .05% squarely in middle of that range. Remember, .08 is the limit for drunk driving in every state (although Michigan also has a lower but undefined level for the lesser charge of "impaired" driving). Thus, a person's better judgment is not any kind of better at all when he or she isn't even halfway legally drunk. This is important for several reasons: First, impaired judgment is impaired judgment. It means your decision making skills are lessened. Thus, a person who decidedly set out to only have a few drinks can easily lose sight of that and just "go with the flow" and drink way more than intended. Second, and often overlooked, the self-regulation mechanism in certain people is just way more affected by alcohol than others. In other words, after just 2 drinks, one person may still remain focused on not over-indulging while another person's ability to do that may be severely compromised (i.e., impaired).

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March 7, 2016

Michigan Driver's License Restoration - Accurate and Complete Information

In my day-to-day role as a Michigan driver's license restoration lawyer, a very important part of what I do takes place at the first meeting with a new client. Normally, this meeting is scheduled for 3 hours, the primary goal of which is to make sure my client leaves the office fully prepared to go and get his or her substance abuse evaluation completed. This specific preparation is so critical that I spend much of those 3 hours with every new client, filling out my own form, called a "substance abuse evaluation checklist." I thereafter pack off the client with the checklist and various other documents (including a marked up copy of his or her driving record) to the evaluator. By sending my client out so completely prepared, and with documentary backup, I make sure the evaluation will come back accurate and complete. It's this attention to detail that allows me to provide a guarantee to win every license appeal case I take.

Thumbnail image for checklist 1.4.jpgThe inspiration for this article comes from a recent license reinstatement case I handled and (of course) won. During the hearing, my client was asked about his attendance at AA, because his evaluation indicated that he had gone for a couple of stints in years past. To my surprise, he answered that he still attends meetings from time to time. Normally, this is a good thing, but the hearing officer looked at the evaluation, which did not list any current AA attendance, and then fired off a few questions about his interview with the evaluator, including this one: "What else didn't you tell her?" All is well that ends well, and although he had been a bit unclear with the evaluator about his occasional drop-ins to AA, the fact that my client left out a good thing (12 step support) produced and outcome much different than if the hearing officer would have discovered that something negative had been omitted from or glossed over in his evaluation.

My substance abuse evaluation checklist is, as much as anything, a compendium of and protection from all the ways one can lose a license appeal case. It pretty much provides a line-by-line detailed backup, or redundancy, for everything that must be listed on evaluation form published and required by the Michigan Secretary of State's Administrative Hearing Section (AHS). A person will have to tell the evaluator all about his or her AA attendance, and that's part of what we go over when I prep him or her. In the case at issue here, my client explained that since he didn't go with any regularity, he didn't want to make it seem to the evaluator that he frequented AA meetings on any kind of schedule. He should have been clear(er) about that, and not saying anything was a mistake. While I cannot explain the miscommunication here, it is important to note that my checklist method leaves no room for a critical omission of the kind information one would consider negative, or that could otherwise derail a case. As it turns out, this was the first time I had represented this particular out-of-state client, although he did have different lawyers for each of his 2 prior unsuccessful appeals. I 'd like to believe that with my help, the third time was the charm.

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March 4, 2016

A DUI Charge does NOT mean you have Drinking Problem - Part 2

Let's begin part 2 of this article by taking account of what was covered in part 1: We have every DUI driver required, by law, to undergo an alcohol assessment. You can call it a screening or a substance abuse evaluation or whatever, but it's all the same thing. This "screening" is done against a backdrop where it is understood that DUI defendants, as a group, present with a higher incidence of alcohol problems than the population at large. Instead of having a substance abuse counselor administer the assessment in a DUI case, the court has it done by a probation officer. Because probation officers are not practicing clinicians, they cannot use the higher-level screening instruments, or otherwise ask the probative kinds of questions that one would expect from a real substance abuse counselor. Instead, they rely upon less clinically sound screening instruments that use a "scoring key" to determine what level of alcohol problem a person supposedly has, or may develop. Using that score and whatever other information he or she feels is important, the probation officer is responsible for submitting a written recommendation that tells the Judge the sentence that you should get, and you can count on your actual sentence closely following that recommendation. If that doesn't sound ideal, then you're getting the point. But we're not done yet; it gets worse.

65591088.jpgIf I seem to have been somewhat critical of probation officers in the preceding installment, I'm going to cut them some slack here. Imagine that you suddenly became a probation officer. Every single day, every person with whom you speak has been convicted of a crime. A huge part of your caseload is comprised of drunk drivers. Forgetting even the dismal statistics I cited at the outset of this article, you have to remember that probation officers don't deal with people merely accused of crimes, they deal exclusively with people who have been convicted of crimes. This kind of experience shapes a person. Add to this that absolutely everyone convicted of a DUI insists that he or she does NOT have a drinking problem, and that a sizable percentage of people who go through a 1st offense DUI, despite their protests to the contrary, wind up in the system for a 2nd offense DUI (and some of them are back for a 3rd or even subsequent offense). I always point out that if anyone sat in the probation officer's chair for a year, he or she would see the world differently at the end of that 12 months. This goes double for everyone who breezes in claiming to have no issue with alcohol and giving assurances that this will never happen again.

Perhaps now it's easier to understand why, in a 1st offense DUI case where a person can go to jail for up to 93 days (180 days in a High BAC case), and considering that the probation officer, who is solely responsible for recommending what happens to you, knows that you won't be going to jail (most likely, he or she didn't recommend it, anyway), no one in the system worries a bit if you're ordered to complete some alcohol education or counseling that you really didn't need in the first place. For all the "punishment" you could get, you are instead required to go to counseling; big deal. I worry about this, however, because I know how the inconvenience (and, in some cases, expense) of this can affect a person and be a drag in his or her life. If you're a busy professional, and even if the cost of all this is not an issue, being required to go to an outpatient substance abuse program 3 times per week, and having to do AA another 2 times per week, along with breath and/or urine testing IS a big deal, especially when it's all to treat or prevent a problem that you don't have...

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February 29, 2016

A DUI Charge does NOT mean you have Drinking Problem - Part 1

Coming off of my last 2-part article about alcohol and drug problems, it seems appropriate to follow up with an article that applies to the majority of DUI cases where the person does NOT have any kind of underlying problem with alcohol or drugs, particularly 1st offense charges. This will also be a 2-part installment in order to keep it manageable. The simple reality is that OWI cases just "happen" to otherwise law abiding, upstanding people. These are the folks that I represent, and they are people who never imagined sitting in the back of a police car, and for whom the whole experience of being arrested seems like something from outer space. All of my clients are people with what is commonly called "social capital," and many of them hold professional licenses. While they may consume alcohol socially, few of them ever engages in reckless or risky drinking behavior. If my last article was an attempt to reach out to the person who is at least beginning to see his or her drinking as problematic, this article is an attempt to reach out to those who know they do not have any such issues. The reason this article is even necessary, though, is because the court system has an inherent bias in favor of finding the drinking problem in everyone who faces a drunk driving charge.

meaning-of-vault-boy-thumbs-up-jpg.jpgThis certainly isn't the glamorous side of DUI work, but it is the most important part because every single person who goes through a DUI must be screened (this is done by completing a legally required written test) to determine if he or she has, or is seen as being at risk to develop an alcohol problem. The results of this screening are used by the Judge to determine what kind of education, counseling, testing and/or treatment will be ordered. The screening itself is done by the court's probation department. As I mentioned above (and discussed in detail in the somewhat recent article I linked in the preceding paragraph), the whole court system has a built-in and acknowledged tendency to find that just about every DUI driver is at least at a notably increased risk to develop, even if he or she does not test out as actually having, a problem with alcohol. Keep in mind that in 2014, just less than one-quarter of one percent (.21%, as in point-two-one) of all the people arrested for a DUI in Michigan went to trial and were found "not guilty." These statistics are about average, except that, without looking, I recall the percentage of "wins" in 2013 was closer to .17 percent. In other words, there is a better than 99.78% chance, no matter how you cut it, that no matter how badly you want to, and no much money you blow trying, you will NOT win at trial. By contrast, and no matter how you crunch the numbers, if you've been arrested for a DUI, it is nearly 99% likely that you will, in fact, go through the alcohol screening. In fact, the only way to avoid that is by having your case dismissed, and banking on that is not much of a plan for your DUI case.

The simple reality here is that if you're facing a DUI, and unless it does get tossed out of court, you will be required to complete the legally required alcohol assessment test. We'll talk more about the test itself later in this article. For now, however, you must realize that if your plan for "handling" your DUI was to go to trial and be acquitted, that leaves you rather unprepared for the assessment itself, even ignoring the whole alcohol bias thing. And, by the way, what I call the "alcohol bias" is acknowledged by experts (clinical researchers) and in their language is called "overdiagnosis." It is accepted, as a matter of fact, that over-diagnosis is a very real and pervasive phenomenon in the court system. It may be easier to understand by flipping it around and asking if you've ever heard of a case where a court has "missed" an alcohol problem? They may catch problems that aren't there, but they aren't missing any real ones in the process. So what does this mean for someone facing a DUI?

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