A rather large chunk of my DUI practice involves handling 2nd offense cases.  Although I have written about this subject in the past, a meeting with a new client last week reaffirmed the reason why I seem to get a disproportionate number of 2nd offenders..  To put this in perspective, you must understand that the overwhelming majority of people who go through a 1st offense drunk driving case never get in trouble again and are truly “one and done’ customers.  This means, of course, that of 2nd and 3rd offense DUI cases account for a rather small percentage of the overall number of DUI cases that wind through the court system each year.  That stands in contrast to my practice, where I represent a much higher percentage, overall, of 2nd offenders.  Although I certainly handle a lot of 3rd offense (felony) DUI cases, as well, the focus of this article will be on why I get so many 2nd time DUI offenders.  I’ll leave to my other writings to explain the nuances and unique aspects of 2nd offense drunk driving cases.

1d3b2c30f590837e8396766eea0f0f95The fact that I handle so many 2nd offense drinking and driving charges is, in large part, a compliment to me and my efforts on this blog.  The story of the 2nd offense client from last week explains this rather well.  As we spoke about his prior DUI case, it was natural for me to ask the name of the lawyer who handled it.  My client hung his head in defeat and sort of laughed out a response, saying, before he revealed the name, “I know, I got taken.”  He went on to relate how he thought that blowing way over $10,000 in legal fees made it seem like he was really going to beat the case.  “The guy promised me everything,” he said, shaking his head.  “I wish I would have found you before.”  He then told me that he had read lots of my blog articles, and liked the way I write (I do my best to write conversationally, so that when I meet someone in person, the “voice” in my articles sound just like me when I talk).  He said he appreciated the honesty in what I say, and my use of “real world” examples to make things as clear as possible.  I thanked him, and then joked that, given how much the “promise everything” operations charge, maybe I should change the way I do things.

As funny as that may be, it really does cut to the heart of how I do things, and what differentiates me from so many of the other websites out there.  First off, I hate it when lawyers try and scare people.  This is something that makes me shake my head, because I run the other way if someone tries to use any kind of scare tactic as a “sales tactic” on me.  By the same token, I have never seen an exception to the warning that, “If it sounds too good to be true, it probably is.”  And here, the actual statistics tell a very clear and consistent story; year after year, of all the alcohol and DUI-related arrests in Michigan, less than one-quarter of one percent go to trail and win.  In 2015, for example, out of 43,553 such arrests in Michigan a grand total of 62 were found “not guilty” after trial.  That’s .14% (point one four percent).  For everything you’ll read about beating a DUI case, you won’t see any of those lawyers linking to the actual numbers.  It’s kind of like those self-study real-estate programs where you’re promised that you’ll be taught how to buy great properties with no money down and get rich.  In the real world, that s**t doesn’t happen.

As a Michigan DUI lawyer, I frequently find myself answering questions about what will happen to a person’s driver’s license as a result of a drunk driving case.  In this article, I want to shift the focus from what will eventually happen to your license, down the road, to the what that paper license that sitting in your wallet right now is all about.  I have done numerous other and thorough examinations of license consequences in both the Michigan DUI section of my website and in various articles within the DUI section of my blog.  Here, we’ll direct our attention to the legal and practical implications of having your physical driver’s license destroyed and exchanged for a temporary driving permit, and exactly what it “permits.”

8828683_yes-cops-can-pull-you-over-for-an-obscured_3cef2cdc_mMichigan DUI law requires the police to confiscate and destroy your physical driver’s license at the time of an alcohol-related driving offense, like OWI.  The police must give you a temporary driving permit (it is called a section 625 G permit) and then enter this information so that your Michigan Secretary of State (SOS) driving record will promptly reflect what has happened.  Imagine, for example, that a person is arrested for a 1st offense DUI and is in an accident a week or so later; the police who respond to the scene will ask for his or her driver’s license, and all he or she will have to give is the paper license (without a photo, no less), so the driving record better confirm that.  The most important thing about this temporary driving permit, and really, the most important point of this article, is that it is a “full” license and does not, in any way, further restrict your ability to drive.  The key word there is “further,” because although the Michigan Temporary driving permit does not restrict your ability to drive, neither does it confer any additional driving privileges that you did not have at the time of its issuance.  Thus, if your license was already restricted at the time of your DUI arrest, the temporary driving permit means that you can still drive, but only in accordance with the restrictions that were already in place.

The easy way to understand this is that the temporary driving permit is the same thing as if you actually lost your wallet, with your license in it, and then went to the SOS for a replacement, and while you waited for your new picture license to arrive in the mail, had to carry a paper temporary license.  This is a subject about which many people are confused, and I can only surmise, somewhat ashamed to ask.  Let me repeat this to make it clear:  If you have been arrested for a drinking and driving offense in Michigan and have been issued a temporary driving permit, there is absolutely no restriction on your ability to drive that wasn’t already there before the incident.  If you had a full license at the time of your arrest, you have a full license thereafter, and until further notice from the SOS.  Things are different, however, for those who refused the breath test and have been given a temporary license on a special form entitled “Officer’s Report of Refusal to Submit to Chemical Test.”  If you have been given that form, you still have a full license, but only for a while.  Lets’ explore this further…

In my practice as a Michigan driver’s license restoration lawyer, nearly half of my clients are people who need a clearance of a Michigan hold on their driving records because they now live out of state.  In the old days (whenever that was), a person could have a suspended or revoked driver’s license in one state and move to another and still get a new license.  That’s not the case anymore.  Over the last several years, I’ve cleaned up most of the remaining “dinosaurs” that were able to do that despite having had their license revoked by the Michigan Secretary of State – only to find out later that they couldn’t renew that out-of-state license because the Michigan hold had finally caught up with them, courtesy of the National Driving Register (NOT to be confused with the sound-alike, but commercial and unofficial “national driving registry” site).

shopping 1.2The National Driving Register (NDR) is a national database maintained by NHTSA (The National Highway Traffic Safety Adminstration) where, amongst other things, license revocations and suspensions are centrally recorded to prevent someone from skirting the laws of one state by obtaining a driver’s license in another.  It took a long time to become operational but it’s here to stay now.  This is undoubtedly bad news for anyone with a license hold, but the public certainly does not want a system that allows a repeat offense drunk driver whose license has been taken away in one state to just go to another and be “legal” again.  We could analyze this to death, but the simple fact is that it’s rather likely that you’re reading this because you (or someone you care about) is dealing with a Michigan hold and needs it cleared.  I can help you clear it, but if, and only if, you have honestly quit drinking.  Sobriety is the key to resolving Michigan driver’s license revocations.

The technical term for getting rid of a Michigan hold on your driving record is to obtain a “clearance.”  There is no difference, procedurally, between a regular driver’s license restoration case and one filed to clear a hold on your driving record, except in terms of the relief you’re seeking.  In a restoration case, you are asking for the return of your Michigan license (meaning a restoration).  In a clearance appeal, you are asking for a removal of the Michigan hold (meaning, not surprisingly, a clearance) so you can get a license in another state.  To be eligible for a clearance, you first have to prove that you have relocated to another state, but this is not much of a problem, even for people who have only very recently moved out.  Of course, in order to win either a restoration of your license or a clearance of Michigan’s hold, you must prove that you are sober, as well.  Many of my out-of-state clients have previously tried (and lost) what is called an “administrative review,” which is an appeal by mail (there is no hearing) and as close to a guaranteed loser as you can get.  Statistically, only 1 out of 4 of them ever win, and no one can say how many times those who do eventually win have tried before they succeed.  If you’re serious about driving again and don’t want to keep losing, then you’ll have to come back to Michigan to take care of this business the right way.  At least with my win guarantee, if I’m your lawyer, you’ll only have to do this once…

When you lose a Michigan driver’s license restoration case, it’s not because you did everything right.  A fairly decent-sized chunk of my license appeal client base is made up of people who have previously tried and lost a license appeal, either on their own, or with some lawyer who does not concentrate in this field.  While I’m certainly the guy to come to when you’re serious about getting back on the road (I guarantee to win every case I take), a very important part of what I have to do in these cases is fix what went wrong in the last case.  Sometimes, this can be a real challenge, like when a person doesn’t list something like a previous drug crime, admits to using drugs that weren’t disclosed in the papers they filed, or admits, during their hearing, to a different “last use” date of alcohol or drugs than was listed on his or her substance abuse evaluation.  These are just 3 of an almost infinite number of things that can go wrong, and one could spend forever trying to list them all.  The purpose of this article is to examine what I have to do to fix things when a client comes to me after something has gone wrong and caused him or her to lose a prior license appeal filed with the Michigan Secretary of State’s Administrative Hearing Section (AHS).

fix-clipart-c1bef8c340a327b613419406ba78013bIn the previous article on this blog, I extolled the value of silence in criminal and DUI cases, and I went on to mention that in any legal proceeding, including driver’s license restoration hearings, one should never say anything beyond simply answering the question that has been asked.  In so many of the lost cases people bring to my office, it is clear that the person volunteered information that went beyond what was asked in the hearing.  Answering more than what was asked never helps.  Ever.  But that’s hardly the inventory of things that typically go wrong in a license appeal case, and the larger point is that many of the things that are wrong enough to derail appeal the first time around will need to be fixed the next time around.  Sure, if a person who is genuinely sober merely files his or her case too soon, then there’s nothing to fix except to wait until the proper time to try again.  Those kinds of mistakes, however, are less common than those involving problems with the substance abuse evaluation, letters of support, or things said at the hearing.  And of course, 2 the biggest mistakes of all are to either to call a witness at a hearing and/or hold a video hearing instead of doing it live.

It may sound obvious, but the first thing I need to do when I meet with someone who has previously tried and lost a license appeal is to find out precisely (emphasis here on precisely) why they lost.  Most people only have a general understanding, at best, of the reasons for the denial of their license reinstatement appeal.  Once in a while I’ll meet with a client who has gone over everything with a fine-toothed comb and written all over the margins of their order, but even then, the old adage “a little knowledge is a dangerous thing” applies.  Even if a person knows that the prognosis of his or her evaluation wasn’t favorable enough, it is unlikely that he or she knows (or knew, until now) that a prognosis of poor, guarded or fair legally requires that an appeal be denied, or that a prognosis of “excellent” can do more harm than good.  I need to see specifically what the hearing officer cited as the reason or reasons for his or her decision.  Sometimes a person won’t even have his or her prior denials, so I will have to formally request microfilm copies of the documentary evidence a person submitted for any prior appeals and the accompanying order(s) of denial.

Perhaps the single best and most valuable piece of legal advice that can be given to anyone being questioned by the police is to “shut up.”  Seriously, don’t say anything.  In my role as a criminal, DUI and even driver’s license restoration lawyer, if I could wave a magic wand and get my clients to do just one thing, it would be to keep quiet.  In this article, I want to take a quick and simple look at the value of silence, and how the natural urge to speak complicates just about everything.  Chances are, if you’re reading this because you’ve been charged with a crime , a drinking and driving offense, or need to get your driver’s license back, and you’ve probably said things along the way that you’d like to take back.  Although less frequently a problem in DUI cases, a situation just crossed my desk yesterday (the inspiration for this article, in fact) where someone who should not have said anything probably talked themselves right into a drunk driving charge.

raf,750x1000,075,t,5e504c_7bf03840f4.u2In that case, the person (I will use  “he/she” or “they” to avoid even a gender identification) had been in an automobile accident caused by the other driver.  This person left the scene, but the other driver got the plate and the police showed up at his/her home.  The person was rather drunk when the police came, and when asked about whether he/she had been drinking before driving and at the time of the accident, the person admitted to having done so, and having been drunk at the time.  Subsequently, the person tested out with a rather high BAC.  Although I cannot say much more, charges will be coming.  The problem here is that had this person simply NOT said anything, the police would have been faced with an almost certain inability to prove that he/she was over the limit at the time of the accident, effectively killing the likelihood of a drunk driving conviction.

I see this all the time in criminal cases, as well.  Let’s use an indecent exposure case for an example.  Imagine the police get a call about a guy exposing himself while driving on Main Street.  The caller can’t give a great description of the driver, but does give a license plate number.  Running that information, they identify the car as belonging to Fred, and the police contact him.  They ask Fred if he was anywhere on or near Main Street at the relevant time, and he answers “yes.”  With that answer, Fred has just seriously helped the case against him.  Now the police know that Fred was in the area at or around the time the caller said she was flashed.  Had Fred just said nothing, the police would probably not be able to prove he was even in the area, much less that he flashed anyone.  Fred, like so many people, probably had pangs of guilt and the inner turmoil of just knowing that the police “know” (knew) that he did it, so he thought it would be better to be honest.  To be clear, in most cases, the police do “know.”  Cops are smart, and most police officers develop a better sense of human nature than anyone in any other profession.  A street cop learns to read facial expressions and body language in ways you and I will never comprehend.  Still, “knowing” something is one thing, but being able to prove it is quite another.

The substance use evaluation is probably the single most important piece of evidence submitted in a Michigan driver’s license restoration appeal.  Most often called a “substance abuse evaluation” (although that term is technically incorrect, even the Michigan Secretary of State, on its website, uses the term “abuse” rather than “use”), this official state form is really the foundation of a license reinstatement or clearance appeal.  In theory, it represents a qualified clinician’s best professional estimation of whether or not a person is likely to remain sober.  In this article, I want to briefly examine the evaluation and its critical role in the driver’s license restoration process.

self-evaluation-clipart-self-evaluation-aVBINO-clipartEven someone trying to blunder through a “do-it-yourself” license appeal will quickly learn about the evaluation form on the Secretary of State’s website.  The SOS, through its Administrative Hearing Section (the “AHS,” formerly known as the “DAAD,” and not long before that, the “DLAD”), makes this form available for download and merely instructs that it must be completed by a substance abuse counselor.  Here’s a quick, insider’s tip: most substance abuse counselors who do these evaluations with enough regularity to really know their stuff either have this form on their computer so that it will automatically space out correctly for the information that needs to be included (the “blank” form on the SOS website has 4 lines for “driving convictions,”) while many people have more than that.  A few years ago, I had a client with 13 prior DUI’s (and I won his license appeal the first time around).  Some counselors will create their own form that corresponds substantially to the state’s version; that’s okay.  The problem is that just about every substance abuse counselor in the country will look at the evaluation form and immediately think, “I can do that,” without really understanding that the information sought by the state can be a lot different than one would likely surmise at first glance.

To properly complete the substance abuse evaluation form, an evaluator must know, and I mean really know, what the AHS hearing officers are looking for by way of information.  If we skip over all the detailed analysis (I’ve done that in plenty of other articles on this very subject), it’s safe to say that the overwhelming majority of lawyers who try and “do” a license appeal don’t know this very well, so anyone trying it on their own is almost doubly lost.  It really is up to a lawyer, like me, who spends almost all of his or her time doing license restoration and clearance appeals to teach the evaluator how the information on form is interpreted.  I know of one evaluator so determined to learn this stuff that, years ago, he would attend hearings with his clients just to observe how the hearing officers used the evaluation.  Today, he is one of the very small circle of professionals that I used in my license restoration practice because he gets it.  This is really only the tip of the iceberg, however, because it is up to the lawyer to carefully review each evaluation before filing it with the state to make sure it meets the “clear and convincing evidence” standard of proof required to win a license restoration case, no matter what evaluator has completed it.  Here’s what I mean…

In a recent article, I explained that one of the most common kinds of emails I receive regarding Michigan driver’s license restoration issues either asks, “Can you help me?” or simply states, “Please help.”  In this article, I want to take that subject a little further and explain how and why the kind of help I offer is unsurpassed, because it comes with a guarantee to win.  In many of the  350-plus driver’s license restoration articles I have written, I explore, often in great detail, every aspect of the license appeal process.  Ultimately, the point of this process is to either win back your Michigan driver’s license, or, if you now live out of state, to win a clearance of the hold that the Michigan Secretary of State’s has on your driving record that prevents you from getting a license in another state.  For all the experience and skill that I, or any lawyer, for that matter, can claim to have in winning Michigan license reinstatement cases, nothing provides the reassurance of a guarantee that you will win.

GGA_WinnersI love being a Michigan driver’s license restoration lawyer.  As far as lawyering goes, I don’t think there is any practice that can come close in terms of dealing with clients on the upswing of their lives, looking to put the last piece of the puzzle back into place, and who really deserve to win their cases.  Yet for all of that, this is also how I make my living, and it does not serve me well to take on cases that are not ready to win, only to have to come back and do all the work a second time next year, in order to fulfill my guarantee.  In other words, I make my money winning these cases the first time, not by having to come back and do warranty work.  This means that I am as invested as my client in the outcome of each case I take.  As confident as I am in my own abilities, I must be even more confident of my client’s sobriety.  I offer my services for hire, but I do not sell my integrity and am serious when I say that I only take cases for people who have really quit drinking.

The real meat and potatoes of the license restoration process is about proving that you’re sober and that you are a safe bet to never drink again.  The very first question a lawyer should ask a potential client is if he or she is, in fact, sober.  It’s certainly the first thing I want to know when someone calls.  For me, this goes beyond just making sure the client is “eligible” and otherwise qualifies to win a license restoration or clearance appeal.  As your lawyer, when I know you’ve done the work to quit drinking and live a sober lifestyle, it becomes personal for me, as well; you deserve your license back, and I will put everything I have into making sure you do.  Like you, I want that to happen the first time around, so my win-guarantee, coupled with my up-front insistence on real sobriety, means that I will get you back on the road.  In the following paragraphs, I want to take a brief look at what you need in order to win your license appeal.

Under Michigan law, it is a misdemeanor offense to drive with a suspended or revoked license.  In the real world, DWLS/DWLR cases are amongst the most common that pass through the court system.  For the most part, these cases can be handled painlessly, but the concerns they present run deeper than just staying out of jail, although that’s not always obvious at first glance.  In this article, I want to look at a few things:  The difference between a suspended license and a revoked license, the legal concerns and implications of each, and how, as a practical matter, these two types of cases, often confused as the same thing, play out differently in court and in a person’s life.

tprtrafficstop-beacon_334353_7 First, let’s define these acronyms:  DWLS stands for “driving while license suspended,” and DWLR stands for “driving while license revoked.”  The difference between suspended and revoked is pretty significant.  A suspended license is a license that has been taken away for a specific time period, or will be returned upon the happening of a specific event, like the payment of money.  A revoked license is one that has been completely taken away by the state, and will not be returned until and unless a person, when eligible, files and wins a full driver’s license restoration hearing, no matter how long he or she otherwise waits.  It’s easy to understand this in school terms: A student is suspended for a period of days or weeks, but returns to school thereafter.  A revoked license is like being expelled; you’re out for good unless you formally petition the appropriate board and win your appeal.  If you don’t, then you remain expelled or revoked.

For the most part, revoked licenses are the result of multiple DUI convictions.  By contrast, a license can be suspended for any of many reasons, although the most common are unpaid tickets, unpaid driver responsibility fees, or a 1st offense DUI or drug crime.  As it works out, there are really 2 classes of people, separated by how they are perceived and treated in the court system:  Those whose suspension results from a DUI (remember, revocations almost always do), and everyone else.  As a practical matter, if the reason for your suspension is anything other than a drunk driving conviction, you’re better off than if it is.

In my work as a Michigan Driver’s License Restoration Lawyer, I receive a lot of emails from people who need to win back their driver’s license.  Most of these emails provide a quick description of the person’s history, go on to explain that the writer “needs” a license, and then ask, “Can you help me?”  The answer is always “Yes,” as long a person is ready, willing and able to move forward with reinstatement of his or her license.  For the most part, those people who are really serious about getting back on the road will call my office rather than email; it is well known among lawyers (like me) who maintain a robust web presence that emailers are, as a group, less committed to action than those who pick up the phone and call.  I certainly understand (I do it myself) how a person may send an inquiry while in the exploratory and investigative phase of obtaining a clearance or having his or her driver’s license restored.  In the real world, however, callers are more likely to be ready to start the license restoration process than emailers, who are typically still in the information-gathering stage.  “Ready,” in this sense, is part of being “ready, willing and able,” which, in the context of trying to win your license back, is more accurately stated as “Able, ready and willing.”  In this article, we’ll see what that means and why it really summarizes the foundational requirements for anyone looking to have his or her license reinstated.

BearsBy law, a person can file for restoration of his or her license, in the case of 2 DUI convictions within 7 years, after 1 year of revocation, and, in the case of 3 DUI convictions within 10 years, after 5 years of revocation.  Doing the math here isn’t that critical, because this information is sent to a person after his or her license is revoked and is also plainly discoverable on the driving record.  The point is that there comes a time when a person becomes legally eligible to file a license appeal.  Under the rules governing license appeals, even though a person may be eligible to file, he or she must also meet certain criteria to win.  For example, those rules provide that under certain circumstances, a hearing officer can, in his or her discretion, order that a license be issued if a person who is otherwise legally eligible proves at least 6 months of continuous abstinence from alcohol.  The rules also specify that in most common kind of real-world case, the person must prove at least 12 months of abstinence, although those same rules also give the hearing officer absolute discretion to require even more time.  For my part, as a driver’s license reinstatement lawyer who guarantees to win every case I take, I require that a person have even more abstinence than just a year, because I know that, for the most part, it’s a waste of time to try and win a license appeal with just 12 months of abstinence.  Thus, we can see the importance of “able” and “ready.”

In the broader context of a Michigan license appeal, the term “able” really means “eligible.”  On both the corresponding section of my website and in various of my blog articles, I’ve examined what it means for someone to be legally eligible to file for restoration of a Michigan driver’s license or clearance of a Michigan hold on his or her driving record.  To take that one step further, and as I discuss on my site and in those articles, there is a key difference between being legally eligible to merely file a case and being ready (as in legally ready) to win it.  Let’s explore this further, because it makes all the difference between winning and losing…

In my role as a Michigan driver’s license restoration lawyer, I handle a lot of cases (over 120 per year)– way more than any other lawyer I know.  I guarantee to win every case that I take (and do that by only taking cases for people who have honestly quit drinking), yet even among my client base, probably about half have previously tried a “do-it-yourself” license appeal and lost.  Although the term “do-it-yourself,” in the context of a license restoration case, technically means without a lawyer, I intend the term, at least in this article, to include using some lawyer who does not really concentrate in this field (because that qualification alone narrows the field down to a very small number of lawyers).  The sad truth is that in many cases, the only difference between someone trying their own license appeal or hiring a lawyer is the money saved (or wasted).  The Michigan Secretary of State’s Administrative Hearing Section (AHS) is the agency that decides all Michigan restoration and clearance appeals, and it does so under a very specific set of rules and requirements.  If you’ve had your license revoked for multiple DUI’s you must know and follow them thoroughly in order to win it back, or obtain the clearance of a Michigan hold on your driving record.

188252-do-it-right-the-first-time-unknown-picture-quotes-quoteswaveIn order to make sure we adequately cover everything, my first meeting with a new client takes about 3 hours.  He or she will be asked to bring in whatever paperwork they have from any prior appeal(s) so that I can see why they lost.  This includes the denial order wherein the hearing officer identifies the evidence presented and the reason(s) the appeal was not successful.  Denials are always based upon problems with the evidence.  Undoubtedly, the hearing officer will point to problems with the timing of the case, the facts of the case itself, the letters of support, the substance abuse evaluation, or the testimony from the hearing, because almost every losing case fails due to problems with one or more of those things.  All of these are amateur mistakes, and for me, completely avoidable.  Whether these things wind up being missed by a lawyer or a true do-it-yourselfer, the results are the same: you lose.  As the old saying goes, “You don’t know what you don’t know.”

There is a very real cost to losing a license appeal; you have to wait another full year before you can try again.  Sure, you can consider appealing the denial to circuit court, but I don’t take those cases for any money because they are expensive, takes months and months, and, most important, are almost always sure losers.  The hearing officers seldom make the kind of legal mistakes that will cause a Judge to overrule and reverse their decisions.  It is very important here to separate the difference between being genuinely sober, and proving that you’re sober, under the rules set out by the state.  Think about it this way:  Assume that you’re an American citizen who has travelled to Canada, and while there, you wind up being a witness to a crime, do the police question you about it.  When you’re asked about your citizenship, you reply that you’re American.  The officer asks you to prove it.  You produce your driver’s license.  She replies that a driver’s license proves nothing.  What about a birth certificate, she asks?  You respond that you left it at home.  At that moment, you are really unable to prove your citizenship, even though you are 100% American.  The point is that genuinely being something or having a particular status (a high school graduate, an American, or sober, etc.) is one thing, but proving it is another.  It comes down to evidence.  You can have all the sobriety in the world, but you must prove it according to the rules, procedures, and standard of evidence required the state.

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