September 2010 Archives

September 27, 2010

Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 1

There is nothing good about picking up a 2nd Offense DUI charge anywhere. In fact, depending on where the charge arises, it's fair to say things simply go from bad to worse. This article will focus on those individuals who use that 2nd Offense charge as a life-changing wake up call and start dealing with a drinking problem, and how that can positively affect the outcome of their case. This article will be based upon my 20 years' experience as a DUI Lawyer who has made a nearly lifelong study of Alcoholism and Recovery, and how those concepts are so fundamental to handling DUI cases. It's a long, involved subject, so our discussion of it will be broken into 4 installments.

The exact statistics are debatable, but it is safe to say that the overwhelming majority of people who pick up a 2nd Offense Drunk Driving charge have an alcohol problem. Under Michigan Law, a 2nd Offense DUI within 7 years makes a person a "habitual offender," resulting in additional penalties and mandated alcohol treatment. In other words, the State basically concludes that a person who gets a 2nd OWI within 7 years has an alcohol problem.

Drinking Problem2.jpgExcept for the truly rare person facing a 2nd Offense DUI who DOES NOT have an alcohol problem, there are really 3 kinds of people in this situation:

  1. Those in Denial, or who just don't see a problem (yet),
  2. Those who sense something is wrong, but are struggling to control or fix it, and
  3. Those who finally have the light switch flipped and really get it.
Let's first talk about that 3rd group. Very often, when I meet with someone who really "gets it," they talk to me in terms of "surrender, " being sick and tired of being sick and tired," and "not being able to lie to myself anymore." I'm often told that as they sit in the Jail cell, waiting for whatever is going to happen to happen, they realize that the common denominator to all the crap and trouble in their life is alcohol. Quite often, this "epiphany" is more a confirmation of a lingering feeling they've wrestled with than a surprising "a-ha" moment.

I think that most people fall into the 2nd group, those who can no longer deny that there is some kind problem, but who have not yet clearly defined it. These are the people who have had, to some extent or other, that "lingering feeling" I mentioned in discussing those who finally "get it."

At a minimum, most people sitting in jail waiting to be Bonded out on for a 2nd DUI know they "can't do that again." Exactly what that means will be the subject of an internal debate raging inside them. And this provides a convenient stopping off point to discuss what I see, time and time again, as one of the hallmarks of a drinking problem and one of the landmarks of Recovery.

Continue reading "Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 1" »

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September 24, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 4

In part 3 of this article, we looked at how merely staying out of Jail in a "Delivery" case was important, but by no means the only consideration in the proper handling of such a charge.

In this 4th and final installment, we'll conclude by briefly looking at the least common of the "Delivery" charges, those involving the "Manufacture" of a Controlled Substance. Then, we'll talk a bit about what a person should look for as they seek good Legal representation for one of these charges, and what they should keep in mind as they consider which Attorney to hire.

Pot.jpgTechnically speaking, a "Delivery" charge is called "Delivery/Manufacture" of a Controlled Substance. As we observed earlier, most actual "Delivery" charges involve hand-to-hand "buys" by an undercover Police Officer.

When "Manufacture" is involved in a "Delivery/Manufacture" charge, it almost always involves Marijuana plants. I have seen cases where the Police were at a residence for an unrelated reason, and saw a Pot plant growing in the house. Now I'm not some horticulturist, but even I know that the UV rays from sunlight, or at least from growing lights, are needed to create the active ingredient in Marijuana, THC.

Still, that single plant, even if it is "impotent" cannot be grown (absent certain, and still unclear "Medical Marijuana" situations) without violating the law. Even if a person is growing an impotent Weed plant indoors with no intention of ever "harvesting" it (because it is impotent anyway), the mere act of possessing that plant is enough to give rise to the "Manufacture" part of the "Delivery/Manufacture" Law. In other words, that plant, which might only weigh a few ounces, will create a ton of problems.

Of course, I have also seen cases where there has been cultivated growing, those cases ranging from a few plants for personal use to what can be described as a bumper-crop in a veritable indoor farm.

Once in a while, a person is found to be making something like Meth, or Ecstasy, but in truth, I see very few of those cases.

The point is that whether it's 1 impotent plant or 1000 high-grade, cultivated plants, merely possessing it or them can and will give rise to a "Delivery/Manufacture" charge.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 4" »

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September 20, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 3

In part 2 of this article, we began examine "Delivery" of a Controlled Substance charges. We concluded our examination by noting that, in most cases, and with some good Legal work, a person facing such a charge can be kept out of Jail (or Prison).

Beyond just staying out of Jail (or Prison), however, there are a host of other considerations that might escape the mind of a nervous person.

Coppers.jpgI have noted in other aricles on this Blog that when someone is really facing a Jail Sentence, they will often swear to do anything and everything they have to in order to avoid getting locked up. I have little doubt that at the time, as they look down the barrel of a real possibility of getting locked up, they mean it. However, in my 20 years of doing this, I also realize that once the Sentence has been passed down, and there is no Jail, it takes a matter or hours, and not even days or weeks, for the person to start wondering if they could have done any better.

In other words, even though "Probation from Hell" is a better outcome than Jail, that "Probation from Hell" gets real old, real quick.

Beyond, then, simply keeping a Client out of Jail, it becomes an equally important part of my focus to help the Client avoid that "Probation from Hell," meaning, in essence, Probation with too many conditions.

Exactly how that's done would take a series of articles in itself. In the end, it means I spend the necessary hours with my Client preparing them for their Probationary interview, part of what's known as the PSI, or Pre-Sentence Investigation.

By law, in any Felony case, and in any number of Misdemeanor cases, the Law requires that, before the Judge Sentences someone, they undergo a "Pre-Sentence Investigation," conducted by the Probation Department. The result of this process, which always includes an interview by a Probation Officer, and often involves the administration of a Substance Abuse Evaluation (a written test that ends up getting a numerical score, the higher of which is worse than a lower score), is a printed Recommendation to the Judge advising him or her what the Sentence should be, from Jail or Prison to Probation, Tether, Rehab, Classes, Testing, or whatever is felt necessary to help the person not become a repeat offender.

With proper preparation, the Client can avoid lots of Conditions. In other words, Rehab might be avoided in favor of a Drug Education Class. Tether might be avoided in favor of more frequent urine testing. The point is to not have to do anything that can be otherwise avoided. It's a long, involved process, but the few hours up front needed to do it right will pay huge dividends later, when Rehab, Classes, or whatever is NOT ordered, and lots more hours (and money) are saved.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 3" »

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September 17, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 2

In part 1 of this article, we observed that there are 2 kinds of Delivery charges: Those involving an actual "Delivery" (or "Manufacture") of a Controlled Substance, and those which allege "Possession with Intent to Deliver."

As we noted, someone facing an actual "Delivery" charge, especially one stemming from a hand-to-hand sale, or sales, is in particularly hot water. Let's talk about those actual Delivery charges.

dealer1.jpgDelivery and/or Possession of different Drugs carry different penalties. Delivery of Cocaine and Delivery of Ecstasy carry a much more severe penalty than Delivery of Marijuana. In addition, the amount, or quantity, of Drugs Delivered, Possessed, or Possessed with Intent to Deliver affects the severity of the potential penalty.

The majority of Delivery cases that I handle are in Macomb County, where my Office is located. Most of them involve the Delivery of a smaller (as opposed to a larger) quantity of Drugs. In Cocaine cases, this means under 50 grams. In Marijuana cases, it often involves a few pounds or less. In Ecstasy cases, it often involves 100 or fewer "hits."

Most often, by the time I am contacted, the person has already been approached about working with the Police. They'll have questions for me about whether or not they should do it. As a general rule, I do NOT advise "working" with the Police in most cases.

If a person, because of a combination of factors, such as their prior Record and/or the amount of Drugs involved in the new case, seems likely to be sent off to Prison, then we'll consider our options to avoid that.

In the majority of situations, no matter how dire it might seem at first glance, the case can be worked out for no Jail, and no Prison time That essentially means there's really no reason to march into harm's way by snitching.

Back in the mid-90's, when the Law was different, the Delivery of ANY amount of Cocaine required a MINIMUM of 1 year in Prison. And Prison meant Prison: the Big House, not some local County Jail.

In those cases where the evidence was rock-solid, and there was no way out, I'd structure a deal with the Prosecutor and the Detective in Charge whereby the Client would do a little "work" (as little as possible) in order to get the Delivery charge dropped to a simple Possession charge, thereby avoiding a trip to Jackson and all the fun that comes with a Prison term.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 2" »

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September 13, 2010

Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 1

This subject will be broken into a series of articles. We'll examine both kinds of "Delivery" charges: Delivery or Manufacture of a Controlled Substance as well as Possession with Intent to Deliver a Controlled Substance. In my Criminal practice, I see these charges made in cases involving all kinds of substances, so we'll also examine Delivery charges involving Narcotics and "Designer Drugs," like Ecstasy, to those involving the Delivery or Manufacture of Marijuana.

You don't have to be a Criminal Lawyer to realize that a Delivery charge is serious business. Very often, at the time of Arrest, a person is confronted by the Police and asked to "help" themselves by "working." In other words, the Police want the person to help bust other Dealers or Suppliers. Perhaps the biggest mistake anyone facing this situation makes is thinking the Police will just settle for getting names.

Deal12.jpgIn my nearly 20 years of handling cases and dealing with Undercover Narcotics Officers and Detectives, I have learned, as they so often tell a person willing to give up some names, that they already know most of those names. They want buys, or introductions. In other words, "working" means working, not talking.

The Police will often try to impress on the person facing a Delivery charge how serious the matter is. Very often, they will remind the person of the maximum penalty under the law for such an offense. This, while technically true, ignores the fact that unless the person already has a really bad prior record, or there is a particularly large quantity of Drugs involved, they are unlikely to see much, if any, of that time behind bars.

And here is as good a place as any to point out that when Police, Prosecutors and Defense Lawyers talk about these kinds of cases, we often refer to them as a "Dope Case." The same term is NOT used when talking about simple Drug Possession charges

So, to set the stage, we can safely say that pretty much any charge involving Delivery is much more serious than any charge which involves simple Possession of a Controlled Substance.

With that as a backdrop, it is important to point out that there are really two "kinds" of Delivery charges. The first, and more serious, is that which involves an actual Delivery of a Controlled Substance. Most often, the person arrested has made a sale, or any number of sales, to an Undercover Narcotics Officer. These are called "hand-to-hand" buys, and really represent the "granddaddy" of all Drug charges.

Continue reading "Controlled Substance Delivery Charges in Macomb, Oakland, and Wayne County - Part 1" »

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September 10, 2010

Michigan Driver's License Restoration Appeals and the Role of Drugs - Part 4

In parts 1, 2 and 3 of this article, we defined and examined the role of Drugs in a Driver's License Restoration case. We looked at the concepts of Alcoholism, Addiction, Cross-Addiction, and Recovery. The purpose of this series is really, more than anything else, to point out that while most License Appeals involve multiple DUI's, the issue of Drugs, whether that means a Drug crime, or illicit Drug use, or even Prescription Drug use, will open up what can literally be called a "can of worms."

To be clear, not every Prescription is problematic. It is the use of drugs that are potentially addictive or habit-forming, or which can be considered mind or mood-altering, that creates an issue.

Color Drugs2.jpgThose who are well-versed in the concept of Cross-Addiction know that a person with an alcohol or substance-abuse problem is expected to inform a physician of that fact before receiving any medication.

This means that if a person is in Recovery from an alcohol problem, and breaks his or her arm, they are supposed to tell the emergency room physician of this fact so that the Doctor can either prescribe a non-narcotic pain medication, or, if a narcotic medication is appropriate, limit the amount of the medication and otherwise closely supervise it's consumption by the patient.

Anyone who has been through a good Counseling or Rehab program, or has spent anytime "at the tables" of AA or NA at least knows of this warning.

And I guess that's as good a spot as any to hit the "pause" button. If the reader has any Drug Record, or any post-sobriety date Prescriptions for any mind or mood-altering substances, and can honestly say that they have not at least heard about this concept of Cross-Addiction, then they are clearly NOT ready to forge ahead with a License Appeal.

There is always an inquiry about what Prescriptions, if any, the person filing for a License Restoration has, or has had.

A 10-panel Urine Test is also part of the "package" submitted when filing a License Appeal. Any drugs that show up in that Test, and which are not adequately and completely explained, beginning with the Substance Abuse Evaluation, and continuing through the Petitioner's own understanding of the addictive, habit-forming, or mind or mood-altering nature of those substances, will result in the Denial of the License Appeal.

Continue reading "Michigan Driver's License Restoration Appeals and the Role of Drugs - Part 4" »

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September 6, 2010

Michigan Driver's License Restoration Appeals and the Role of Drugs - Part 3

In part 1 of this article we began examining the role of "Drugs" in a License Appeal by coming up with a working definition of the terms Alcoholism, Addiction, Cross-Addiction, and Recovery. In part 2, we began examining how those concepts are involved in a License Appeal, and we looked at an example, based upon real-world experience, of a person who has been alcohol-free for a few years, but fails to properly disclose and explain a current prescription for Vicodin, and how that will guarantee that his Appeal will be lost.

In this third section, we'll pick up with another, real-world and fairly common example of how the issue of "Drugs" comes into play in, and can be fatal to a License Appeal, unless properly handled.

Pills in Color.jpgThere are really 2 kinds of "Drug" offenses that show up on a person's Driving Record. The first, and by far the most common, are "Drug crimes" like Possession, and even Delivery charges. Because the law requires that a person's License be Suspended as the result of any Drug conviction (except those deferred under what's known as Section 7411 or HYTA), the fact that a person had such a conviction automatically shows up on their Driving Record.

The least common kind of case involves Drug-related Driving Offenses. Of those, one of the most common is what's known as OUID, or Operating Under the Influence of Drugs.

The larger point here is that if any of these Offenses show up on a person's Driving Record, the Hearing Officer knows the person has some issue with Drugs. Given that the whole License Appeal Process involves a License Revocation for multiple DUI's or a combination of multiple DUI's and Drug-related Driving Offenses, it doesn't take a Rocket Scientist to figure out that the issue of Drug use by the person Appealing is going to be examined pretty closely.

This means that the person Appealing better have a good, working knowledge of the concepts of Alcoholism, Addiction, Cross-Addiction and Recovery. If those terms don't at least "ring a bell," to anyone facing a License Appeal, then it's fair to say that they're far from ready to begin that Appeal.

If, on the other hand, those terms at least "ring a bell," even though the person may not be able to thoroughly discuss them, a "refresher course" is in order. From my point of view, this is all part of the process of preparing my Client for the Substance Abuse Evaluation. I certainly don't spend nearly 3 hours at that first meeting talking baseball.

Continue reading "Michigan Driver's License Restoration Appeals and the Role of Drugs - Part 3" »

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September 3, 2010

Michigan Driver's License Restoration Appeals and the Role of Drugs - Part 2

In part 1 of this article, we began an overview of the role of "Drugs" in a License Appeal. We sketched out a working definition of the terms Alcoholism, Addiction, Cross-Addiction, and Recovery. In this second part, we'll continue our examination of those concepts, and how they merge into the larger subjects of Mind or Mood-Altering Substances, and the overriding concern that anyone trying to remain clean and sober avoid them all.

Every person with any kind of Substance Abuse problem has a "drug" of choice. This means a favored substance above all others, and one to which they would familiarly retreat while in the grasp of their problem. Thus, a person with an alcohol problem will seek more alcohol. A person with a Vicodin problem will seek more Vicodin. Ditto for Marijuana, and any other substance you can name.

pills2.jpgBut what happens to a person with a drinking problem if they are kept away from the booze? Or anyone who is kept away from their "drug of choice?"

They will, unless properly counseled and educated, simply substitute another drug. Sometimes it can happen by accident, other times by design, but either way, a person with any kind of Substance Abuse problem is, underneath it all, more addicted to altering their mind and mood than they are their particular substance of choice.

This means a person with a drinking problem who is abstaining from alcohol, and who does not know better, will start getting their buzz from tranquilizers, or pain-killers, or whatever other substance they are exposed to. This is a clear example of "Cross-Addiction."

On the other hand, imagine a person who had a drug problem, but never really cared for alcohol. Even if they are abstinent from drugs, that person will begin to "substitute" alcohol in place of the drug if they ever drink. This is another vivid example of "Cross-Addiction."

So why does the use of another substance beyond one's favorite ("Drug of choice") lead to developing a problem with "Cross-Addiction?"

Because underlying every Drug and alcohol problem is a more basic problem of altering one's mind, or mood. In other words, even though a person has a "drug" of choice, that drug just represents their favorite way of altering their mind, or mood, and not the only way to do that.

Continue reading "Michigan Driver's License Restoration Appeals and the Role of Drugs - Part 2" »

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