August 2010 Archives

August 30, 2010

Michigan Driver's License Restoration Appeals and the Role of Drugs - Part 1

This blog contains a rather large volume of articles about Driver's License Restoration. Because such a large share of my Practice involves License Restorations, I have tried to cover this subject from every possible angle. My previous articles explain both the process of winning back a Michigan Driver's License, and the ins and outs of having a Michigan Driver's License Hold cleared so that a person can be Licensed in another state.

Because almost every one of those situations involves the loss of Driving Privileges occasioned by multiple DUI's, I have yet to examine the role of Drugs in a License Appeal. In this article, we'll begin an inquiry into the role of Drugs in a License Appeal. Because this is such an in-depth subject, we'll break this article into 4 parts. I will end each at a logical stopping point in order to keep each of these installments flowing into the next. This first entry will be the shortest of the bunch, as we'll be more or less just defining the terms we'll be discussing later.

drugs-alcohol2.jpgLet's begin by defining what is meant by the phrase "role of Drugs." We'll be looking at "Drugs" within the context of both illegal use, as in Substance Abuse, and the role of legitimate, legal prescriptions for the person filing the Appeal. In other words, if there is any Drug Crime on a person's Record, or if they've ever had Counseling or Treatment for Drug issues, and/or even if they are on any Prescription Medication of almost any kind, then the subject of "Drugs" must at least be examined as part of the overall process of preparing for a License Appeal.

To be completely and technically accurate, although the vast majority of License Revocations are the result of multiple DUI convictions, the law applies equally to "Alcohol or Drug-Related Driving Convictions." This means that any combination of 2 DUI's and/or Substance Abuse, Driving-Related Convictions within 7 years, or any combination of 3 such Convictions within 10 years will result in either a 1-year, or 5-year Revocation, respectively.

This, however, does not explain why the Secretary of State's Driver Assessment and Appeal Division (DAAD) will so closely scrutinize a person who has a valid prescription for Xanax, but whose License was Revoked for 2 DUI's. To understand this whole concern better, we need to understand the prevailing view of Alcoholism, Addiction, Cross-Addiction, and Recovery, and the roles they play in a License Restoration Appeal. We will NOT be undertaking an instructional analysis of those concepts. That would take years. Instead, we'll establish a working definition of those terms and see how they figure into this whole process. And make no mistake about it, they figure prominently into the License Restoration Process.

Continue reading "Michigan Driver's License Restoration Appeals and the Role of Drugs - Part 1" »

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August 27, 2010

OWI in Michigan - The Court and the Driver's License

In almost every Drunk Driving case I handle as part of my DUI Practice, the Client will ask about the consequences to their Driver's License. The purpose of this article is to clarify that whatever the consequences in any given DUI case, it is the Michigan Secretary of State, and ONLY the Michigan Secretary of State, that imposes them. In other words, the Court has NOTHING to do with a person's License in a DUI case.

Often, in a DUI case, I am asked if the Judge will "at least" give the Client "some kind of restricted License." I then go on to explain that the Judge cannot Suspend, Revoke, Restrict or otherwise take any action against a person's License in a Drunk Driving case. Many people easily understand that all Licensing actions in a DUI case are exclusively handled by the Secretary of State.

Judgeflag2.jpgSome people, however, don't quite get it, and very often, that's for a good reason. Prior to the "Habitual Offender" Drunk Driving legislation of 1999, Courts did have jurisdiction over a DUI Driver's License. Thus, a person facing a 1st Offense OUIL (the technical name for a DUI back then), would have their Driver's License Suspended, Restricted of Revoked by the Court in which the DUI charge was pending. The Habitual Offender legislation, which went into effect October 1, 1999, transferred ALL Licensing actions and authority from the Court to the Secretary of State.

Before the Habitual Offender Legislation took effect, when all Licensing consequences in a DUI case were imposed by the Courts, there were still certain, specific Mandatory minimum and maximum Driver's License penalties. Thus, the Law gave the Courts the power to Suspend, Revoke, and/or Restrict a person's License only within a specific, specified range. Even so, the results were all over the board.

In one local Macomb County Court, a certain Judge used to grant a Restricted License in a 1st Offense Impaired (OWVI) case for 6 days per week, 12 hours per day. It didn't matter whether the person worked 14 hours per day, or was on call. Most other Courts would ask a person to specify the earliest time they left in the morning, and the latest they would return home, and grant a Restricted License for that period. A few Courts, noting that someone worked on an "on call basis," would allow them to drive at any time, 24 hours per day, as long as such driving was work-related.

The Habitual Offender legislation of 1999 got rid of all that, and made things simple and uniform. The Law spells out certain specific consequences for each DUI offense. This eliminated any difference in results between two people facing the same charge, no matter which Court or Courts were involved.

Continue reading "OWI in Michigan - The Court and the Driver's License" »

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August 23, 2010

Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 2

In part 1 of this article, we began examining the economic realities Lawyers face in taking Court Appointed cases. In this second part, we'll focus on how that economic strain translates into time spent, or not spent, resolving a Client's case, and how that affects the level of service that is ultimately provided.

Beyond time and money, there is another, even less obvious factor that comes into play when we compare having your own Lawyer to taking one who has been Court Appointed. In my Practice, having a Client come in to hire me is almost always the by product of their deciding they like what I have to offer, and my thinking I can help them. In other words, there is sort of a mutual selection that has taken place. If the Client calls my Office and feels alienated, or if I speak with them and think they're nuts, then it's not likely we'll be meeting.

Judgenumber2.jpgWhen I take a person's money, I feel a very serious responsibility to them to do whatever is necessary to produce the best outcome humanly possible. After all, they paid me.

When the Court pays someone, and the pairing of Attorney-Client has been by chance, that bond and that sense of agreement and understanding are simply not there. That's not to say that any particular Court Appointed Lawyer will neglect his or her Client's interests, it's just that, no matter how you slice it, that bond, understanding, sense of obligation, handshake, or whatever is NOT there, and never will be. Either side can always think "I didn't hire you" or "you didn't pick me."

In fact, it has been noted that there is at least a concern that because it is the Court, and not the Client who pays the Lawyer, the Attorney might be far more afraid to test the Court's patience, rather than the Clients. Think about it this way: one frustrated Client dealing with an otherwise happy Court passing on Appointments is worth more than one happy Client and a frustrated Court who might direct appointments away from a Lawyer who is seen as inefficient in wrapping cases up and moving them through. Remember who signs the check.

Then there is the matter of time spent with a Client before and during the case. The way I see it, I am paid to explain every aspect of a case to my Client. In a DUI, for example, I'll meet with my Client for 1 and ½ to 2 hours at our first Appointment. I will begin preparing the Client to take the legally required Alcohol Evaluation. My Client leaves not only with my phone number, but my "personal-business" e-mail so they can get in touch with me as other questions or concerns come up.

Continue reading "Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 2" »

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August 20, 2010

Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 1

One question that comes up from time to time within my Criminal Practice is "should I just go with a Court-Appointed Lawyer?" This is almost always preceded by an explanation that the questioner either has no money, or not a lot of it. This article will focus on that question, and will be broken into 2 parts.

Let's narrow that focus, however, to the types of Criminal cases that I handle. Thus, we are not talking about what are called "Capital cases," meaning those that carry a term of up to life imprisonment, and usually involve such crimes as Murder, Rape, Armed Robbery, and the like.

Checklist2.jpgInstead, we'll focus on the rather garden-variety Misdemeanor case, or a light-to-medium severity Felony case. Typically, this will involve charges ranging from DUI, Suspended License and other Driving charges to things like Possession of Marijuana, Cocaine, Analogues, or other Drugs, up to Felony DUI matters. The idea here is that we are NOT talking about Murder, Rape or Armed Robbery type charges.

Let me begin by pointing out that when facing a Criminal charge, having a Lawyer is better than not having a Lawyer. The same thing goes for dealing with an injury. Better to have a Doctor than not.

At this point the reader is probably figuring that I'm going to begin an analysis of how and why Court-Appointed Lawyers are so inferior to those Practicing Privately. That's not the case. Instead, I'm going to examine the realities of the paycheck, and how that affects the level of service someone can expect.

Before we begin our analysis, I should point out that, contrary to popular opinion, a person represented by a Court-Appointed Lawyer must repay the Court. They are NOT free.

There is always some rumbling every year within the Legal Community about the need to increase the payment for Court Appointed Lawyers. The truth is, the Fee schedules that most Court-Appointed Attorneys work under was always below market in terms of compensation, and it has either remained relatively unchanged in the last umpteen years, or, in some cases, has actually gone down. It is generally recognized that within the economic realities of today's world, these Fees are bottom of the barrel. Compared to the Fees of a Private Lawyer (see my Fee Schedule), it seems like welfare.

This generally accounts for the notion that Court Appointed Lawyers are very often young, inexperienced "newbies" learning to "cut their teeth" in the real world. While that's not completely true, at least within the parameters of the kinds of cases I handle, any veteran Lawyer making his or her living on the Court-Appointed rolls, is generally not perceived (whether correctly or not) as having the "stuff" to be successful.

Continue reading "Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 1" »

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August 16, 2010

Detroit-Area Criminal, DUI and Driver's License Cases - "Winning" is Everything

Many Lawyers have a challenging job. Except for those Lawyers who represent celebrities and athletes as an Agent, or who practice Patent and Trademark law, or other, more "academic" pursuits, Lawyers, like me, who go to Court for people generally get involved in their Client's lives at a time of crisis, or stress. I've often said that my Practice and being a Funeral Director has something in common: Nobody comes in "on a roll."

I limit my Practice to 4 things: Criminal, DUI, Driver's License Restoration and Bankruptcy cases. When you think about it, pretty much anyone coming to see me is coming to have something made better. Of course, I need to make a living, and earning a salary is a part of anyone's job satisfaction, but all the money in the world won't improve the quality of your life if you hate what you do. To me, job satisfaction comes from knowing that I have actually helped better my Client's situation.

better1.jpgIn that regard, I could never stand being involved in a Divorce case. I've never so much as handled one, and to me, it seems that too many people walk away from that situation even more unhappy than when they started. In my Criminal Practice, for example, I at least know that no matter bad my Client's predicament appears when we first met, I am almost always able to produce a material and substantial benefit in terms of the final outcome. And that's the term I use as a yardstick to measure success: Was I able to produce a material and substantial benefit for my Client?

This means more than just talking about my personal job satisfaction. In using the term "material and substantial benefit" as the measuring stick by which I judge my own success in any given case, it also becomes the criteria by which I decide if I will take a case. Inherent in that consideration is a question of honesty. I bristle at the jokes about Lawyers being like used-car salesman. Even so, I remember once, as a much younger Lawyer, calling an older Lawyer friend of mine to whom I wanted to refer a case far too complicated for me at the time. When I mentioned that he came to mind right away because he was an honest man of integrity, he joked "that has cost me a lot of money in my career." Funny as that sentiment is, it really is no joke.

To be honest, and to only be willing to take someone's money when you feel you can really produce a beneficial, tangible result means losing money. Let me cite an example from a call I received this week:

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August 13, 2010

Michigan Driver's License Restoration - Notes of Success

In previous blog articles about my License Restoration Practice, I have noted, albeit somewhat cavalierly, that very often, the best and easiest clients are those who have tried before and lost. Sometimes these individuals were represented by a Lawyer for whom License Restoration cases are not a substantial, bread-and-butter part of their Law Practice. Other times the person goes in on their own, unrepresented.

Whatever the situation, I get the call to come in for the 2nd round.

Notes2.jpgFortunately, given the fact that I have had a 100% success rate so far in 2010, and have maintained a win rate of well over 90% for as long as I can remember, none of these "2nd timers" are former Clients of mine. What I do observe is that they come to my office with a fundamental understanding that there are a lot of small details to the License Restoration process, and that failing to take care of any one can be, and often is (as their prior experience indicates), fatal to a case.

I have noticed that beyond being eager to listen, and learn, about the process and all of the many nuances involved, pretty much all of my Clients want to take notes. This is even more so the case for those who are coming to have me represent them for their second Appeal. In fact, it has long been standard procedure for me to hand my Client a pad of paper and a pen so that they can jot down things as we proceed.

Now, given that the first meeting in my office, which is primarily dedicated to preparing for the required Substance Abuse Evaluation, lasts from 2 and a ½ to 3 hours, there is certainly a lot of ground to cover. Once in a while, if I notice the Client listening, but not writing, I'll slide the notepad over to them and say something you like "you may want to write some of this down."

Continue reading "Michigan Driver's License Restoration - Notes of Success" »

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August 9, 2010

Michigan DUI and the Required Alcohol Assessment Test - Part 2

In part 1 of this article we began discussing the concept of Alcohol Assessments, and how I came to realize how very important the results of any Alcohol Assessment test was in terms of the Sentence a person received, particularly in a DUI, where such a test is required by Law. In this second part, we'll pick up right where we left off and continue our examination of the role of the Alcohol Assessment test in DUI and other Criminal cases, and how a person can and should be prepared in order to do as well as possible at this most critical stage.

Now let's be clear about the role of these tests. In a DUI case, for example, the results of whatever test is given is, BY FAR, THE SINGLE MOST IMPORTANT FACTOR in determining what kind of Classes, Counseling, Education, or Rehabilitation Services will be ordered for the Defendant. It doesn't matter who you are, where you work, or who you know, if your test score indicates that you have, or are at risk to develop an alcohol problem, you are going to be ordered by the Court into some kind of Counseling or Treatment. End of story.

Test22.jpgThis means that scoring as well (meaning as low) as possible on this kind of test will have the biggest and best impact on the outcome of a DUI case, short of having the whole thing dismissed. It also means that missing a beat here or there will send you to Classes, Counseling, or Treatment that you might have otherwise been able to avoid.

So that's really the bottom line to all this. After we strip away all the "politically correct" ways to discuss this, the unblemished truth is that if you know how to score as low as possible on one of these tests, then the outcome of your case will be better.

Makers of Radar Detectors will proudly tell you their products are not made for the purpose of defeating any legitimate law enforcement tool, nor are they sold to help people break the law (meaning speed). Instead, the sales pitch involves your right to know if you're being watched.

Ditto for preparing for any kind of Alcohol or Drug Evaluation Test. I'd never suggest anyone lie, or give an untrue answer on one of these tests, but I sure as heck think that you have the right to know how you're answers will be evaluated, and how any particular answer affects your test score. In that regard, you have every right to know what you'll be asked about, and every right to know how your answers will affect the outcome of your DUI (or other) case.

Continue reading " Michigan DUI and the Required Alcohol Assessment Test - Part 2" »

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August 6, 2010

Michigan DUI and the Required Alcohol Assessment Test - Part 1

This article will deal exclusively with certain aspects of the Alcohol Assessment, which is required, by Michigan Law, in all DUI cases. Sometimes referred to as an Alcohol Evaluation, or a Substance Abuse Evaluation, this kind of test is often administered in many other kinds of Criminal cases, particularly those involving alcohol or drugs. Like many of my longer articles, it will be broken into 2 parts.

A huge part of my practice involves helping people who are facing a DUI charge. Under Michigan Law, before anyone can be sentenced in a DUI case, they must undergo a mandatory alcohol assessment. This means they take a written alcohol evaluation test. This may be one of many different tests, but whichever is given, the test is graded with a numerical score. Generally speaking, the higher a person scores, the more likely they are to develop, or have an alcohol problem. The lower they score, the less likely they are to develop of have an alcohol problem. If you're thinking "lower is better," then you you're right on track.

Test 11.jpgI have been hesitant to publish this article out of a concern, misplaced perhaps, that it would appear I'm helping my Clients "cheat." Further consideration led me to overcome that concern by realizing that any Client has a right to know exactly what they will be facing in any case, and as a Lawyer, I have an obligation to be as thorough and knowledgeable as possible about all aspects of a DUI, or any other kind of case I handle. Telling someone what they're going to be asked, and how any particular answer will affect the outcome of their case is better thought of as preparation as opposed to any kind of unfair advantage.

Many years ago, I began to examine and study these Alcohol Evaluation tests. Seeing how the results of any such test was almost always the single most important factor in determining what happened to my Client in a DUI case, I began to see that helping a Client avoid a higher score was a huge factor in producing a successful, or better outcome. This eventually led me to a far more comprehensive study of the whole concept of alcoholism, addiction, and recovery. To say this has been a nearly lifelong interest is an understatement.

Continue reading "Michigan DUI and the Required Alcohol Assessment Test - Part 1" »

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August 2, 2010

Driving While License Suspended in Michigan - Dealing With Multiple Cases

It seems that Driving While License Suspended cases have been steadily increasing, at least in the Macomb, Oakland and Wayne County area. Likewise, I have seen a noticeable jump in the number of multiple-offense cases amongst those who have to deal with this charge. In a previous blog article, I pointed out that I am often asked about "package deals" in multiple offense cases. Of course, I'm always willing to work with someone regarding Fees in a multiple offense situation

Most often, a person will have an older DWLS case in one city, and a newer one somewhere else. This can create a certain logistical problem, and part of my job as a Lawyer is work that out for the Client. Here's what I mean:

GR.jpgOften, the Client will have a Warrant out in one or both cases. Let's examine that situation. Say a person has 2 DWLS charges. The first is in Fraser (Which is heard in the Roseville Court), and the second is in Warren. For whatever reason, they want to take care of these now (as opposed to earlier...). They come and see me. I need to contact each City and see if there is, in fact, a Warrant out in either case, and, if so, if there is a cash Bond amount that can be posted to have that Warrant recalled.

Now, let's say that person has a Warrant in both Fraser and Warren. If they were to walk into the Warren Court and try to take care of that Warrant, it would turn up that they also have a Fraser Warrant. Instead of leaving Warren on their own, they would be held for Fraser to come and pick them up on that Warrant.

This example is based on a real case I'm handling right now. My Client had a Warrant in both Fraser and Warren. I called the Courts in each city, and learned that Fraser had a $1000 cash Bond that could be posted. Warren, on the other hand, had a $2500, 10% Bond, meaning that $250 would be required to have the Warrant recalled and the matter set for a Court date.

Because most people don't have loads of cash just sitting around, my Client and I decided that she'd have the $250 Bond posted in her name in Warren, and that we'd go to Fraser together where I would be able to present her for Arraignment on the outstanding Warrant and likely get her release on either a Personal (meaning no money), or a much smaller cash Bond.

Had she been pulled over or otherwise had any Police contact before these things were straightened out, she'd have been taken into Custody and likely transferred from one city to the next over the course of several days.

Given that most people can have a Probationary Sentence imposed in one of these cases, that Jail time would have been time wasted. For my Client, in may have cost her job, and would have been terribly upsetting.

Continue reading "Driving While License Suspended in Michigan - Dealing With Multiple Cases" »

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