May 2010 Archives

May 31, 2010

Memorial Day Break - Remember Those Who Served and are Serving

I'm taking a break today, as are many of us. We should bear in mind, however, that the whole reason we have the freedoms we do, such as a day off, like today, is because of the sacrifices made by those who served in our armed forces. Had our soldiers not given so much of themselves in World War II, we might have been conquered by Germany, or Japan. Every American who defended against the Japanese attack, and every American who fought in Europe against the Nazi scourge, were the very definition of the term "heroes." The same holds true for every other U.S. Veteran in every other conflict, right up to today.

We ask a lot of our Military. We ask them to take minimal pay, and march off to foreign lands and put up the good fight. Then we ask them to come home, and blend back in. We can debate the reasons for this or that war all day long, but soldiers have to be above that. And they are.

Our Good Soldiers.jpgToday, as we have our military personnel returning from Iraq and Afghanistan, bear in mind that even if they have all their limbs, they have seen things and lived in conditions that would cause any one of us trauma, even as a bad dream. There isn't enough money in the world to pay them for that part of themselves they leave behind as they carry out their orders. And those are the lucky ones.

Many come home broken, or in pieces, or dead, in a box. Next time you see someone in uniform, look them in the eye and thank them for serving their Country. Our Country. After all, you thank the clerk at the gas station who gives you change, don't you? Don't you think our Heroes deserve an an often overlooked, but much overdue expression of appreciation?

For all the degrees, honors, fame or fortune a person can get, or earn, I don't think there's any, or all of it, that equals the distinction of having served in our armed forces. The very fact that you're reading this as a free person means you should thank a Veteran.

So I'd like to issue a profound "Thank You" to all of the people who have, or are serving in the U.S. armed forces. God Bless you all for your incredible sacrifices on your Country's behalf. I only wish there was some way to repay you for that beyond our boundless gratitude.

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May 28, 2010

The Best Legal Strategy in a Michigan Criminal Case

This article is in response to a number of inquiries I have received asking me to outline what I would do for someone in their particular Criminal case. It's a fair question. If you're about to drop $1000, $2000, or $4000 in Legal Fees on a Lawyer, it's probably a good idea to know what they expect to give you for your money, beyond a polite "thank you."

Unfortunately, the answer to that question, in any particular case, is not so clear cut. Some might find a Lawyer's reluctance to answer such a question with specific information to be a reluctance to "give away the store." In some cases, that may be true. After all, that no one wakes up every day for a week with a stiff knee, then starts calling Doctors and asking them exactly what they'd do to make it better and expects to get a detailed answer. Any Doctor who would take such a call, however, would likely have the same answer any competent Lawyer would have in responding to a question about a person's Legal situation: It depends.

There are really 4 significant parts to any Criminal case, at least once the case is active:

1. The person's story. Their version of what happened, and why, and what they think the Police saw, or learned.

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2. The Police story. Their version of what happened, what they were told, and what they learned. This is often well summarized in the Police Report.

3. The Prosecutor's position. While this is largely based on the Police position, different Prosecutors have different personalities, and which one handles any particular case can have a profound effect on how it is resolved.

4. The Court in which the case is being heard. Beyond the fact that the different Counties have different approaches to cases, Judges, like Prosecutors, have different dispositions. Some Judges are especially tough on this or that type of offense, while other Judges might be more lenient toward the same offense, but tougher on another.

Thus, when a person calls and tells me their story, I have precisely ΒΌ of the information I need to get a clear picture. Going back to the Doctor analogy, after hearing the Patient's complaints, the Doctor probably has figured out that whatever the problem, and ultimate solution may be, it most likely involves the knee. Great. But he or she will want x-rays, blood work, maybe an MRI and an exam, as well, before forming a plan.

Continue reading "The Best Legal Strategy in a Michigan Criminal Case" »

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May 24, 2010

DUI and OWI in Michigan - The Big Deal About and Meaning of "Impaired"

As a DUI Lawyer, I have written extensively about this subject, and have frequently talked about "Impaired Driving," or "Impaired." In most articles I have seen, both my own and those written by others, the subject of Impaired arises in a discussion of DUI in general. This article will focus specifically on Impaired Driving, and attempt to explain why it's such a big deal, in so many ways.

If you have been searching for information about a Michigan DUI, or have spoken with anyone who works in the Court, Law Enforcement or Legal System, then you have no doubt heard the term "Impaired."

A few drinks.jpgIn Michigan, Drunk Driving, or DUI, is technically called Operating While Intoxicated, or OWI. Not that many years ago, the technical name for Drunk Driving was "Operating Under the Influence of Liquor," or OUIL. When Michigan adopted the national standard setting Bodily Alcohol Content for Drunk Driving at .08, it likewise change the name of the Offense from OUIL to OWI. Under the old OUIL Laws, Drunk Driving in Michigan was defined as having a Bodily Alcohol Content (BAC) of above .10.

Also, under the old OUIL Laws, a person with a BAC of between .10 and .07, was guilty of a less severe form of Drunk Driving, known as Impaired Driving. In essence, Impaired sort of meant driving with a "buzz," while OUIL meant driving while Drunk.

When OWI with it's .08 became Michigan Law, Impaired Driving was NOT abolished. Instead, the old .07 standard was dumped, leaving Impaired with no defined BAC.

This amounted to a HUGE break for anyone who makes a mistake by driving after having had a little too much to drink, especially for those who have had no prior DUI cases for more than 7 years from the date of any new charge. Just to be clear, any 3rd Offense in a person's LIFETIME is a Felony, so we're only talking about 1 prior, here.

The break and benefit of an Impaired is that it carries less severe penalties than does an OWI. Both the old OUIL and its successor, OWI, carry the same penalties. Let's compare the penalties of Impaired to those of OWI, so we can see why Impaired can be considered such a huge break:

Continue reading "DUI and OWI in Michigan - The Big Deal About and Meaning of "Impaired"" »

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May 21, 2010

Michigan Driver's License Restoration - The Slim Chance of Appealing a Loss to Court and Winning.

In an earlier article, I outlined why filing an Appeal in a Circuit Court after losing a License Restoration Appeal with the DAAD is generally a losing proposition. As a Driver's License Restoration Lawyer, I receive lots of emails from folks who think they've been wrongfully denied and inquire about using my services to file an Appeal. The purpose of this article is to reiterate that, generally speaking, once a person has taken their shot with the Secretary of State and lost, they'll probably just have to wait the year before they can go back and try again.

I've said this in several articles: I'm in business to make money, not send willing Clients away. So far, in 2010, I have a 100% success rate in my License Restoration Appeals, and have, for years, maintained a win rate well over 90%. I'm not looking to pick up a few bucks at the expense of my record and reputation. Therefore, when I tell someone they would likely be wasting their money to file an Appeal of a DAAD loss, I really mean it.

SAD3.jpgThose who have tried on their own and lost make the best Clients because they know they need help with this process. The truth is that almost all of the reasons a person loses an Appeal that they file on their own are for things that would have been avoided if they wouldn't have tried to save a few bucks and go the "do it yourself" route.

The problem lies in the fact that most people who file for a License Restoration Appeal before the DAAD really have quit drinking, and truly are committed to remaining abstinent. While those are necessary pre-conditions to an Appeal, standing alone, they fall FAR short of what it takes to win back your License. Remember, under the Law, (specifically, Rule 13), the DAAD Hearing Office is directed to "Deny an Appeal, unless the Petitioner proves [their case] by clear and convincing evidence...." In other words, it's not the case that the Hearing Officer sits and determines if the person has merely "tipped the scales" in their favor. That's not nearly enough to win.

In baseball terms, "tipping the scales" could be equated to getting a walk, or a single.

This "Clear and Convincing Evidence" standard is more like hitting a triple, or a home run.

Continue reading "Michigan Driver's License Restoration - The Slim Chance of Appealing a Loss to Court and Winning." »

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May 17, 2010

Michigan DUI Convictions and the Mandatory CDL Suspension

As a DUI Lawyer, the title of this article makes perfect sense to me. Anyone who holds a CDL undoubtedly understands it as well. The purpose of this article is to examine what happens to a CDL when a person gets a DUI while driving their personal vehicle. If you don't know what the term CDL means, then the good news is that you probably don't have anything to worry about, even if you're facing a DUI. For the curious, however, CDL is an abbreviation for "Commercial Driver's License."

A CDL allows a qualified driver to operate a commercial vehicle. This includes panel trucks and big rigs, and all kinds of other vehicles.

Trucks.jpgIf you have a CDL, and especially if you use it as part of your livelihood, then getting a DUI is devastating. Back in 2005, Michigan increased the penalties for CDL holders to require that all CDL privileges be completely suspended for a full year when a person pleads to, or is found guilty of, any DUI related charge, such as OWI, Impaired Driving, or Operation Under the Influence of Drugs.

The Law itself is very clear. This action is mandatory, and there is no way to Appeal it, or have any kind of "restricted" license. The bottom line here is that if you get convicted of a DUI, even if it involves operating your personal vehicle, your CDL is completely gone for a year.

It certainly is understandable that a getting a DUI while operating a Commercial Vehicle would result in losing a CDL. However, the law here goes much further. It imposes upon a CDL holder a higher standard of driving responsibility than it does on a non-CDL holder, including when a CDL holder is simply doing his or her normal, personal driving. In an upcoming Blog article, we'll examine in more detail just how far this goes, because the law also imposes CDL penalties for a bunch of other offenses, all while the CDL holder is only involved in personal, and not commercial, driving.

Anyone with a CDL can imagine just how devastating this 1-year suspension can be. If a person drives a truck for a Utility Company, for example, they can no longer do that for the year during which their CLD is suspended, although typically, they never lose the right to drive their personal vehicle, except, perhaps, for a short period of dealing with a Restricted License.

Continue reading "Michigan DUI Convictions and the Mandatory CDL Suspension" »

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May 14, 2010

DUI in the Detroit Area - How the BAC Breathalyzer Result Affects Your Case

As a Lawyer who is in Court for DUI cases multiple times every week, I read more Breathalyzer results than you can imagine. This article will focus on a very important, but often-overlooked aspect of what's called the "BAC" in a DUI case. This is NOT an article which will discuss the theory of Breathalyzer accuracy and all that. Instead, this article will focus on how Breathalyzer results can and do affect every DUI case that makes it into Court.

Earlier this week, I handled a DUI for a fellow who had been stopped for swerving across the road. After his Arrest, he was taken to the Police Station and given a Breathalyzer test using the Datamaster machine. His test results were .21 and .22. We'll get back to his case, and the example it provides, later. If you are facing, or have had A DUI, then you have most likely met this machine. If not, you probably had your blood taken.

BAC2.jpgAt the conclusion of the breath testing, the machine prints out a form and the person tested receives a copy. That copy is usually pink and looks like a big store receipt. It list details of the test, and the results are titled "BAC." This stands for Bodily Alcohol Content." Sometimes, people mistakenly refer to BAC as "Breath Alcohol Content," or "Blood Alcohol Content."

One of the questions any Lawyer who regularly handles DUI cases will quickly ask a prospective Client is something like "what was your BAC?" That BAC score is very important in determining the severity of a person's case. In fact, that score often provides loads of information about a DUI case, and what's likely to happen as a result.

For starters, the BAC is often used as a "wet thumb test" to make an on-the-spot determination if a person is a big drinker or not. Now I'm not saying that this is scientifically accurate, but I am saying that Cops, Prosecutors, and, most importantly, Judges, look at the BAC as a sort of barometer to determine if a person is a real lightweight, or a big drinker.

Let's look at a few examples: If a person is arrested on a Thursday night for a DUI, and their BAC is .23, then the Judge (or Magistrate) who handles their Arraignment is going to know that their Bodily Alcohol Content was about 3 times the legal limit of .08. That means they were very, very drunk. On the other hand, if they weren't very, very drunk then they are a hardcore drinker. A lightweight, newbie drinker could never get a BAC that high. In other words, a .23 BAC means a person is probably a big drinker, whether they were drunk out of their minds, or not.

Continue reading "DUI in the Detroit Area - How the BAC Breathalyzer Result Affects Your Case" »

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May 10, 2010

How a Michigan Criminal Record will Ruin Your Career...or Not!

As a Criminal Attorney, I generally find myself involved with people at one of the worst times of their life. Since I don't handle things like Rape and Murder cases, I usually represent good, decent people who have simply made a bad decision, or otherwise failed to exercise good judgment and wound up getting caught in a bad situation. Most of my Clients face things like DUI, Possession of Marijuana, or other "victimless" crimes. In that regard, they typically, (and correctly) feel that this instance of poor judgment does not present an accurate picture of the kind of person they are, or what they're all about.

Thus, it's not unusual for me to be asked by a Client facing a DUI, for example, "How long will this stay on my Record?" Then, when I have to tell them "forever..." they usually become a bit frustrated (not at me, thankfully) and respond with something like "So that's it? I'm screwed if I want to apply for a different job?"

light-at-end3.jpgYou can insert pretty much anything, from getting a job, to getting a degree, or using that degree, or going into some occupation or other, or getting a promotion, or whatever, into that last sentence after the part where the Client says "I'm screwed..."

And although they do, at that moment, feel utterly and truly "screwed," the fact is, no matter how bad it might seem right then, it's almost never as bad as they fear.

An example from my own past is serves as a good example:

Years ago, when my wife and I were buying our first house, we had applied for a mortgage, and had been assured that we would be approved. Based on that, we found our home, and made an offer, which the seller accepted. As the days wound down, our mortgage was still not formally approved. Days came and went, and we found ourselves very near the closing date, with no mortgage approval. The closing day came, and had to be postponed. That next date came, and had to be put off, as well. The seller was freaking out, and we were freaking out. The seller told us that the deal would either have to be closed right away, or it would fall through.

I called my mortgage broker, and explained to his assistant that my deal was about to collapse unless we got that approval right away. In response, he told me that he hears that every day, and not to worry. In truth, I became angry, wondering who in the heck this guy was to tell me not to worry when I darn well knew that my deal was about to fall through! I didn't give a hoot about anybody else's situation; I just cared about mine.

Continue reading "How a Michigan Criminal Record will Ruin Your Career...or Not!" »

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May 7, 2010

Drunk Driving and Traffic Tickets in Michigan - The Money-Making Speed System

A recent Channel 7 News story about local Police cashing in on Tickets struck a familiar chord with me. A big chunk of my Practice involves DUI's and Traffic Tickets. I often find myself explaining to a Client that, above and beyond any facts in their case, it represents revenue to the City in which the case was brought. Now let's be clear, I'm not talking about major crimes here. Instead, I mean DUI's, Suspended/Revoked License charges, Traffic Tickets, Possession of Marijuana and similar, local Misdemeanors.

I could literally list hundreds of examples, but one that comes up as much as any other occurs when a Client has been arrested for a DUI. The person might have been pulled over for speeding, and then ask me something like "I was only a few blocks from home. Why couldn't he (the arresting Police Officer) have just let me call home and get a ride?"

money.jpgI then explain to my Client that, besides the fact that Driving Under the Influence is a crime, to the City (or Township, or Village, or whatever) their arrest represents revenue. And a nice chunk, at that.

In addition to the Fines that the City picks up in one of these cases, the Court supports itself by imposing Costs, as well. Add to that the cost of supervised Probation for a year or more, and just letting that DUI Driver go means sending better than a thousand dollars out the door.

Even a simple Traffic Ticket, which represents only a few minutes of Police time, generates better than $100. If you figure that into an hourly rate, the Police Officer is more than earning his or her salary back for the City.

This is why, in most Traffic Ticket cases, a person with a decent Driving Record can hire a Lawyer, take the case to Court, and wind up walking out with a deal that keeps any and all points of their Record. Of course, part of that deal is paying the fine on a "non-reportable" Traffic offense. From the City's financial point of view, they are still making money.

Continue reading "Drunk Driving and Traffic Tickets in Michigan - The Money-Making Speed System" »

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May 3, 2010

Marijuana Possession in Michigan - It Can't be Medical After the Fact...or Can It?

Criminal Charges for Possession of Marijuana seem to be occurring at about the same rate they always have, at least from the perspective of my Practice. Since Medical Marijuana was legalized in Michigan over a year ago, I have crossed paths with it, but not in a way that has been a legal defense to a Criminal Charge.

A person need only read the newspaper to learn that pretty much everyone is still a bit confused about the exact application of the new Medical Marijuana Laws. A few cases have been brought at the District Court level, and some aspect of the Medical Marijuana Laws has been raised as a Defense to those Charges, but nothing really decisive or guiding has yet to come from any of Michigan's Appellate Courts. Recently, some cities have begun prohibiting or restricting marijuana dispensaries. The final outcome to all of this is still unsettled, and any predictions are probably still premature. A recent e-mail I received from one of the Principals of the Michigan Medical Marijuana Association outlined the contradictory positions of 2 State Agencies regarding when an applicant for a Medical Marijuana card is considered "legal."

medical_marijuana_prescription.jpgThe The Michigan Medical Marijuana Law itself is simple, but not clear enough to prevent these contradictory positions. This spells potential trouble for anyone caught with Marijuana who does not have a Medical Marijuana Card, even though the law clearly states that a card shall be issued within 15 days of a valid application being submitted. It further states that if no card is actually issued within 20 days form the date of the submission of a valid application, that application shall be deemed "granted."

It would appear that if a Card is subsequently issued, the 20 day period will be easy enough to define. However, in cases where an application is rejected for one reason or another, such as a typo or missing piece of information, and even if that information is later provided and the Card issued, it is arguable that the 20 day period did not apply prior to the submission of the corrected application. I would expect that to be the position of the Police and the Prosecutors.

From the perspective of a Criminal Lawyer, having the proper certification to dispense, grow, or possess Marijuana is seen as a potential defense to a related Criminal Charge. I say "potential defense" because the certification or permission granted by the Medical Marijuana Laws are not unlimited. A person cannot start an outdoor, 100-acre Marijuana farm, and neither can a person drive around with 10 pounds of Marijuana in their car. There are limits to what is allowed under the new law, and even if the exact edges of those limits have not yet been clearly defined, certain things obviously fall well outside of them.

Continue reading "Marijuana Possession in Michigan - It Can't be Medical After the Fact...or Can It?" »

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