August 2009 Archives

August 28, 2009

Michigan Driver's License Restoration - Secretary of State Denial

For anyone thinking of filing an Appeal for a Michigan Secretary of State Driver Assessment and Appeal Division Hearing, listen up. If you lose after your Hearing, the chances are overwhelming that you will also lose any appeal that you file. As a rather well-seasoned Driver's License Restoration Attorney, I handle a large volume of License Appeals. That does not mean, however, that I get involved with every, or even the majority of cases that come along. Part of having a successful record of wins involves having a good sense of which cases can and will be successful. That means knowing when a case is not likely to win, and not going forward with it.

denied2.pngA fair number of the calls that come into my office are from Driver's who have already gone to the DAAD for their Hearing and lost. Most went without an Attorney, but a few hired one that they now think wasn't familiar enough with this area of the law. Either way, they are looking for help in appealing a decision to deny their License Appeal.

The problem is that all-too-often, there's very little that can be done. A common misconception is that if you lose at the DAAD hearing, you can simply appeal to Court. While that's technically true, it's the type of Appeal that makes winning so unlikely. After the DAAD Hearing Officer issues his or her opinion, a Court can only overturn their decision if it finds it to be, to use a more understandable term, unlawful.

In other words, as long as the Hearing Officer lawfully conducted the Hearing, and as long as their decision is supported by material and competent evidence, a Court cannot overrule it. As the section on Relief Available in Circuit Court (beginning on page 32 and continuing to page 34) explains, and as some of the cases cited in the "Habitual Alcohol Offender Appeals section (beginning on page 41 and continuing to page 43) of the DAAD Practice Manual illustrate, a Judge cannot overrule the DAAD, even if he or she would have granted a License, unless that Judge is convinced that the Hearing Officer's decision was not supported by competent and material evidence, or the Hearing Officer otherwise conducted the Hearing in a manner that does not comply with the Law. That doesn't happen too often.

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August 24, 2009

License Restoration - Out of State Licenses and what if I've moved out of Michigan?

In recent years, the number of Michigan residents who are moving out of state has been growing. Given the current downturn in the economy, and the huge manufacturing job losses here, especially in the Tri-County Area, that number will likely continue to grow.

Among all those people leaving Michigan, any number have had their Driver's License Suspended or Revoked. Let's speak candidly for a moment; If I wasn't a Driver's License Restoration Attorney, and I didn't have a valid Michigan Driver's License, and I was moving out of state, the first thing I'd wonder is "can I just go and get a license in the state to which I'm moving?" As it turns out, the across-the-board answer to that question is "no."

Driver Lady.jpgMany years ago, it was possible to obtain a license in certain, different states, even if you had a Suspended or Revoked License in your former home state. Those days are long over, however. Part of that has to do with the reason you're reading this - the computer revolution.

The law basically boils down to this: If your license is suspended or revoked in Michigan, you must clear whatever underlying suspension(s) or revocation(s) you have here before any other state will issue a Driver's License. In a previous blog post, I discussed the differences between Suspended and Revoked Licenses.

Depending on the status of your Michigan License, the problems on your Michigan Driving Record can be "cleared" in order to make way for the out of state license. The best way to determine that status, if you're not completely clear about it, is to obtain a copy of your Michigan Driving Record. This link will help you do that.

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August 23, 2009

DUI, OWI, OUIL - Michigan Drunk Driving Terms

It seems there's an "alphabet soup" of terms (acronyms, actually) used to describe what we commonly know as "Drunk Driving." Some are accurate, some are obsolete, and some just plain wrong when used to describe "Drunk Driving" in the State of Michigan.

The purpose of this article is to define and explain these terms. A complete review of their consequences is laid out in the "Common Drunk Driving Charges and Penalties" section of my web site.

Let's begin with terms that Drivers in Macomb, Oakland and Wayne County are likely to see:

MSP Car Small.JPGOWI - Operating While Intoxicated. This is the actual term used in the law to describe a Drunk Driving charge in Michigan. OWI applies to Driver's whose Bodily Alcohol Level (BAC) is .08 or higher.

OWVI - Operating While Visibly Impaired.
This is the term used to describe the less-severe type of Drunk Driving (and Impaired by Drugs) Charge. More commonly referred to a "Impaired Driving," this charge applies to Driver's whose BAC is below the level of .08, and Driver's whose abilities are impaired by Drugs or Controlled Substances.

OUID - Operating Under the Influence of Drugs.
This charge is to Controlled Substances and Drugs what OWI is to Alcohol.

OWPD - Operating in the Presence of Drugs. This charge refers to a Driver who is found to have any amount of Drugs (for which they don't have a prescription) or Controlled Substances in their system. Fortunately, it's not a very common charge, but it means, for example, that a Driver who tests positive for Marijuana, even though they may not have used it all (second-hand smoke) or who used it weeks ago, is presumed to be in violation of the law.

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August 21, 2009

Domestic Violence in Michigan- Dropping the Charges

As a Criminal Defense Attorney practicing in Macomb, Oakland and Wayne Counties, I know that most people do not think of themselves as wife-beaters or spouse abusers. Most people, in fact, are not. Yet this is precisely the label most people fear, and face, when they suddenly find themselves charged with the Misdemeanor offense of Domestic Violence.

While no two cases are alike, most cases follow one of several common patterns. By far, the most typical of all cases starts out with a domestic argument. Often, but not always, inhibitions are lowered because one or both parties has had a little to drink. Somehow, the argument escalates and an object is thrown by one party at another, or there is a push, or a shove, or sometimes even an outright smacking of one party by the other. Perhaps a neighbor or nearby observer hears the argument and calls the Police; other times, one of the disputing parties calls them.

arrest.jpgIf you are facing, or ever have faced this charge, you know what happens from here. The Police arrive and talk to each party separately. Sometimes, they have the (alleged) victim and/or any witnesses write out a statement. After all the talking and sorting things out, somebody leaves in handcuffs.

In the following days, tempers cool, and regret creeps into both parties' recollections. By this time, the arrested party has been arraigned by a Judge or Magistrate, and on top of anything else that was ordered as a condition of Bond, the person charged is ordered to have no contact with the (alleged) victim. This often creates family and/or household hardships that no one imagined.

Surprisingly, many of the calls that a lawyer receives from those looking for help are from the (alleged) victim. Even when the person charged is the one calling around for a lawyer, one theme runs through almost all of these conversations: Can the Charge be dropped?

The answer is always the same: No.

One of the more enduring misconceptions to which the world of TV and Movies has given rise is the notion that the person who claims to be a victim can "drop" the charges.

Continue reading "Domestic Violence in Michigan- Dropping the Charges" »

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August 19, 2009

Providing False Information to a Police Officer - Mistaken Identity

A case of Mistaken Identity, which I began handing in a local Macomb County District Court in the week of August 17, 2009, may have been entirely avoided, and will become certainly become completely avoidable, based upon new technology and equipment issued to Law Enforcement Agencies later that same week.

According to an August 19, 2009 article in the Oakland Press, "New Technology will help ID Suspects in 35 Seconds," a new handheld device can scan just two prints of a person's forefinger and identify the subject within 35 seconds. The device is to first be provided to the Sheriff's Departments in Macomb, Oakland and Washtenaw County, along with Police Departments in Clinton Township, Auburn Hills, Ferndale, Novi, Oak Park, Southfield, Waterford, Wixom, Dearborn and Westland.

fingerprint_scanners_250x251.jpgAs the lawyer representing this man charged with Retail Fraud in the Third Degree (stealing from a store). It is alleged he tried to steal hundreds of dollars worth of baby formula from a local grocery chain. When the suspect was detained in the store, he had no identification on his person, and used the name of his brother, my client, because he knew that his brother had a clean record and he knew his brother's birthday by heart. Because the name his brother provided, (my client's name), came up with a clean record, the Police, rather than arrest the suspect, released him at the scene and told him notice from the Court would be forthcoming.

It worked so well, he did it again. When my client received his first notice to appear in Court, he was shocked to learn that he had been charged with a crime. Not only did he not commit these offenses, my client, unlike his troubled brother, was punched-in and verifiably at work during the time these incidents occurred.

The first case was dropped after he came to Court with his work records and a letter from his boss validating them. The records showed he both punched in and out of work on the day in question, and, given the time of the suspect's actions and his subsequent detainment, that would have been impossible for my client to do. The same outcome is expected in the current case.


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August 17, 2009

How Much Fines and Costs will be required in my Metro-Detroit Drunk Driving Case?

Any lawyer who regularly handles Drunk Driving cases in Macomb, Oakland or Wayne County gets asked this question at least several times per week. I know that, as a Drunk Driving Attorney, I am asked all the time. I usually answer with a cautious "It depends...."

The truth is, there is no simple, or one-size-fits-all answer. There are several factors that must be looked at in order to come up with an answer.

First, and most important is in which Court (what city) is the case being heard? To illustrate, let's take a typical, real life example of a person with a First Offense OWI. Assume the lawyer gets the charge reduced to what's known as "Impaired Driving," or OWVI.

The question we have here, then, is how much will this first-offense "Impaired Driving" cost?

The short, and best answer, is that it depends, more than anything else, on which Court is hearing the case. For example, not too long ago, a First Offense Impaired Driving in the 42-2 (New Baltimore) Court usually netted a fine and costs of $450. That same offense, in the 41-B (Clinton Township) Court, usually resulted in a fine and costs of about $950. Most other courts in the Tri-County area charged somewhere between those amounts.

1120747_calculator_3.jpgSecond, the whole cost paid by a Defendant is not limited to a "fine." Going back to the Impaired Driving example above, the penalties for Impaired Driving allow a fine of "up to" $300, plus costs. It's usually the "costs" that are both difficult to accurately predict and which cause people the most problems. Thus, in that above example, the 42-2 Court charged $300 in fines, plus $150 in costs. The 41-B Court charged $300 in fines plus $650 in costs. Costs vary widely form Court to Court.

Third, a growing number of municipalities have enacted ordinances which allow them to charge, in addition to any court fines and costs, for the actual Police Officer/Emergency Responder time spent in handling the case, right up from the point of arrest, through booking, holding, releasing, cleaning the jail cell, preparing the Police Report, and any other action connected with the offense. These are sometimes called as "Emergency Responder" costs. For those municipalities that do seek reimbursement, the amount, while it varies from place to place and case by case, usually adds up to somewhere between $250 to $350.

Beyond the expense of the fine, the costs, and any Emergency Responder/Police Officer reimbursement, there are several other additional expenses involved in any Drunk Driving or Alcohol-Related Traffic Offense. Of course, there are the lawyer's fees, as well.

Continue reading "How Much Fines and Costs will be required in my Metro-Detroit Drunk Driving Case?" »

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August 14, 2009

Michigan Driver Responsibility Fees - The new Payment Plan Option

NOTE: MY OFFICE CANNOT ANSWER ANY QUESTIONS ABOUT WHAT YOU OWE, WHY YOU OWE IT, WHAT KIND OF PAYMENT ARRANGEMENTS ARE AVAILABLE OR ASSIST IN MAKING THOSE ARRANGEMENTS. YOU MUST CALL THE MICHIGAN DEPARTMENT OF TREASURY AT: 1-800-950-6227.

Many Drivers who are required, for any of many reasons, to pay a Driver Responsibility Fee to the State of Michigan are unaware that there is a new Payment Plan option available, and it has recently become even better.

It goes without saying that in these tough economic times the last thing anyone needs are additional fees tacked onto their Driver's License, but the Courts in Macomb, Oakland and Wayne County are filled with cases involving Suspended License Violations because drivers could not afford the Driver Responsibility Fees assessed against them, and wound up driving with a suspended license, and getting caught.

It becomes a vicious cycle of sorts, but those drivers face not only new Criminal Charges, but additional Driver Responsibility Fees on top of additional license sanctions and suspensions.

In April of 2009, the Michigan Secretary of State changed its policies regarding payment of these Driver Responsibility Fees. Perhaps the most significant and best part of the change is that outstanding fees can be paid over a 24 month (2 year) period. Prior to the April change, payment plans were limited to 12 months (1 year). Some drivers are even unaware that there has long been a Payment Plan which can be set up with the Secretary of State.

767230_money_-_us_dollars_3.jpgAnyone facing a Driving While License Suspended charge would be well advised to speak with an Attorney before appearing in Court. While many drivers simply want to put the mater behind them, eating a conviction for Driving While License Suspended not only requires and additional, like period of license suspension, but 2 points are also added to the driver's record. Worse yet, another Driver Responsibility Fee will be assessed, making a bad situation much worse.

As part of my Criminal Practice, I routinely handle Driving While License Suspended cases, and am usually able to convince the Prosecutor to reduce the charge to something other than DWLS, thereby saving my client from having his or her license suspended any further, sparing them the two points that such an offense carries, and, most of all, saving them from incurring any additional Driver Responsibility Fees. Given the relatively small legal fees involved in handling this kind of case, and given the substantial benefit that results from having it properly handled, the overall savings quite literally means more money in your pocket.

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August 12, 2009

Drug Possession in Michigan - What is the Amount Required?

"How can they charge me with possession for such a small amount?" This is another question that comes up quite often when handling drug cases. Possession charges can come about when a small amount of drugs, or residue of drugs is found. In some cases, a single marijuana "roach" (butts of a marijuana cigarette, often too small to be smoked any further), or a few "roaches" are found as part of a vehicle search. Similarly, leftover residue of burnt marijuana or other drugs, inside a pipe, is sometimes used to bring this charge.

Typically, the first question anyone who is facing such a charge asks is "isn't there some minimum amount" needed to charge a person with Possession?

The short answer is yes, but just enough to test. This means that even the smallest amount of drugs can create legal troubles.

Moreover, charging someone with Possession requires a lot less evidence than convicting someone of that charge. The often asked question, "how can they charge me with Possession?" can be answered rather simply: They can because they did.

Of course, there are scenarios where the mere presence of residue is not enough to sustain a Possession charge. For example, it is widely known that paper currency often carries small, or trace amount of drugs (especially cocaine) both because of the use of rolled up bills to snort the drugs, and because money and drugs are often in the same area. What's more, as money that has drug residue is folded up or grouped with other money that does not, some of the "clean" money will pick up some of that residue.

489547_cocaine_stripes.jpgThus, a trace amount of drugs on money found on a person, without more, is not enough to bring a Possession charge.

But a folded up rectangle of paper that was used to hold cocaine, or heroin, or a baggie with drug residue left inside is another story.

Similarly, the Prosecutor has to show that a person "knowingly" or "intentionally" possessed the drugs. Thus, if the "roaches" are in the ashtray of your brother-in-law's car, which you were borrowing, the charge may not stand up. If, on the other hand, the "roaches" are in the ashtray of your car, and you just forget to dump them out, then a Possession charge will probably stick.

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August 10, 2009

Restricted Licenses in Michigan - Part 3 - Bad Driving Records

In the previous two sections of this series on Restricted Licenses, we talked about Drunk Driving and Drug Cases. This section will review what can be done in those cases in which a Michigan Driver accumulates too many Driving Points, or is otherwise notified of a license suspension due to bad driving. Most drivers are aware that you lose your license after you rack up 12 points. Suspensions resulting from too many points, and many other kind of "Bad Driving" suspensions can be appealed in Court, and surprisingly often some form of a restricted license is granted after such an appeal.

Some suspensions are automatic, like those called "Mandatory Additional Suspensions" which occur when a person is caught driving during a period of suspension. These "Mandatory Additional Suspensions" cannot be appealed or modified, and no restricted driving privileges are available or possible until the mandatory additional period has passed

The two most important terms to understand are "Revocation" and "Mandatory." "Mandatory" means just that; there is no possibility of obtaining a restricted license during a period of mandatory suspension.

901196_driver.jpgA Revocation means the driver's license has been "revoked." In schoolyard terms, a revoked license is the same thing as being expelled from school; there is no automatic readmission, or in the case of a license, reinstatement. Instead, a driver (or student) has to reapply and start from scratch. This is the most serious consequence that can occur to a driver's license, and generally, (but not always) only the Secretary of State can restore a revoked license, and only then after a hearing.

Now, bearing those two terms in mind, in most other circumstances, there is a good possibility of appealing, either to the Secretary of State or to a Court, and then winning some type of restricted driving privileges. Of course, that's a very general statement, and lots of exceptions apply. However, in virtually every license suspension that I have appealed to a Court, I have won some kind of restricted driving privileges for my client.

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August 7, 2009

Restricted Licenses in Michigan - Part 2 - Drug Cases

This section examines what happens to a driver's license after a conviction for a Drug Crime, and what can be done about it.

In the first installment of this series on Restricted Licenses, we saw that in Drunk Driving Cases, the action taken by the Secretary of State against a driver's license is mandatory, and cannot be appealed. When Drug Crimes are involved, things aren't so bleak. Sometimes it's quite possible to avoid any license consequences altogether. In many cases involving a first-time offender, a "deferral" or "under-advisement" deal can be worked out which avoids an actual conviction for the offense, and therefore there are no consequences to a driving record. When that is not possible, even though the Court must impose some suspension of driving privileges, it can be modified, and some sort of restricted license is almost always available, although not necessarily immediately. In the end, it's up to the Judge.

Gavel.jpgThe most common drug crimes are Possession charges. Marijuana Possession is a misdemeanor, and Possession of all Other Drugs is a felony. Like Drunk Driving charges, penalties and license sanctions increase depending on whether the person is charged as first or second (or subsequent) time offender.

Other, less common Drug Crimes involve Possession with Intent to Deliver, and Delivery or Manufacture. These offenses, like simple Possession offenses, carry mandatory license sanctions. This means that after a conviction, whether by guilty plea or trial, the Judge must suspend the driver's license. In first offense cases, the suspension is for 6 months, and in second-offense cases, the mandatory suspension is for 1 year.

With Drug Crimes, it is the Court, and not the Secretary of State, that imposes the driver's license suspension or restriction. Exactly what the Court does, and is required to do, is mandated by state law. Most Judges in the Tri-County area tend to be understanding of a person's need to drive, and are usually more lenient than not in granting Restricted Driving Privileges. The point here, though, is that the Court has discretion to order some sort of restricted driving privileges in Drug Cases.

Continue reading "Restricted Licenses in Michigan - Part 2 - Drug Cases " »

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August 5, 2009

Restricted License Availability in Michigan - Part 1 - A Definite "Maybe"

The list of criminal offenses that involve some sort of Driver's License Suspension or Revocation is long, and always seems to be getting longer. Everyone knows that Drunk Driving convictions result in some loss of license, but many people are not aware that Drug Possession offenses also require license suspensions.

Whether due to a Drunk Driving, a Drug Crime, or simply a Bad Driving Record (too many points), anyone who has lost, or is facing the loss of their license, usually asks "Isn't there some kind of Restricted License I can get to at least go to work?"

And the answer to that question is always the same: Maybe.

1174747_by_a_beer.jpgTo make things easier to understand, we'll look at the three of the most common situations that occur. We'll examine each of these three areas in a separate article, beginning with Drunk Driving Cases. In the second installment, we'll examine the availability of restricted licenses in Drug Cases, and in the third and final installment, we'll review what can be done for drivers who lose their license because of too many Points, or a Bad Driving Record.

First, certain kinds of offenses, like Drunk Driving, require that the Michigan Secretary of State automatically take certain, specific actions against a license. These are known as mandatory penalties. They cannot be appealed in Court, nor can they be modified in any way.

When a person is convicted of a Drinking and Driving offense, the Court immediately sends notice of the charge they pled to or were found guilty of to the Secretary of State. Based upon the person's prior driving record and the conviction offense (the one that the Court is notifying the Secretary of State about), certain specified-in-the-law Driver's License sanctions must take place.

Consider this example: A Detroit-area resident with no prior drug or alcohol convictions on their record receives a First Offense Drunk Driving charge (OWI). If the person pleads to, or is found guilty of, that original charge, then once the Court sends notice of that to the Secretary of State, that driver's license will be suspended for6 months. Under the law, the driver will not be allowed any driving privileges for the first 30 days, and will then have a restricted license for the remaining 5 months of the suspension period.

If that same driver is able to have their lawyer work out a deal to reduce the charge from OWI to the lesser charge of Impaired Driving (OWVI), then upon notice from the Court, the Secretary of State will suspend the driver's license for 90 days, with a restricted license being granted for all of those 90 days. In other words, that driver will basically have their license restricted for 90 days.

Continue reading "Restricted License Availability in Michigan - Part 1 - A Definite "Maybe" " »

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August 3, 2009

Expungements in Michigan - Erasing a Criminal Record

As jobs become harder to find everywhere, especially those in Macomb, Oakland and Wayne Counties, anyone looking wants to do everything to better their chances of being hired. As a Criminal Defense Attorney, I am often asked about Criminal Convictions, Criminal Records, and what to answer on a job application. Anyone who can avoid the burden of admitting to a Criminal Record is, of course, better off. More and more employers are running Criminal Background checks on current and prospective employees, and new laws in different industries (for example, Education and Health Care) prevent people from working in them if they have certain kinds of Criminal Convictions.

For those who have a Criminal Record they want erased, there are several requirements that must be met before they can even try to proceed.

Eraser.jpgFirst, the person who wants their record cleaned, called the "Applicant," must have no criminal convictions on their record except the one they are seeking to have removed. This confuses some people who may also have a past arrest for DUI or DWLS. Drunk Driving and Driving While License Suspended are Criminal Offenses. I note this because very often, when asking a person if they have any other crimes on their record beyond the one they'd like to have removed, they'll say "No, nothing more than a Drunk Driving Case a long time ago." If a person is seeking to have a Conviction removed from their record, and they also have had a DUI or a Suspended License conviction, no matter how long ago, they are ineligible. The law, while perhaps harsh, is also very clear on this point; if a person has more than one Criminal Conviction on their record, they are ineligible for an Expungement, which is legally known as a "Set-Aside of Conviction."

Second, an Applicant's conviction must be at least 5 years old.

Third, Driving-Related (and certain other very serious) Offenses cannot be Set Aside from a Criminal Record. This means that DUI and Suspended License offenses from the past cannot be removed.

If a person meets all of these criteria, then the process can begin by filing what's called an "Application to Set Aside Conviction." The process itself involves obtaining fingerprints, filing the Application with the Court where the Conviction originally occurred, receiving and attending a Hearing, and notifying multiple parties, including the State Police, the Michigan Attorney General, and the Prosecutor's Office that originally handled the case, of that Hearing. I describe the Process of "Expungement" more fully on my website.

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