November 2010 Archives

November 29, 2010

Michigan Driver's License Restoration Appeals - Fixing Errors That Caused the First Appeal to Lose - Part 3

In part 2 of this article, we examined some of the reasons that an initial, usually "do-it-yourself" License Appeal is lost. In this third and final part, we'll conclude our discussion with a review of some of the more serious errors that can occur, and how they are fixed in order to win the next Appeal.

Whatever the reason or reasons for a loss, they cannot just be overlooked next year. They must be addressed, and fixed.

Fixing 5.1.jpgI mentioned earlier that the kinds of things that can result in a denial range from the easily fixable to the catastrophic. The examples above (in part 2) would be considered rather easily fixable. What would be catastrophic?

In plenty of my other articles, I have pointed out that the Substance Abuse Evaluation itself is the very foundation of an Appeal. While it can never win an Appeal on its own, it can absolutely be the cause of one that's lost. In order to help a case, and not hurt it, the Substance Abuse Evaluation must really have 2 essential qualities:

1. It must be "legally adequate" in the eyes of the DAAD, and

2. It must be "favorable" for the person filing the Appeal.

Those qualities are explained thoroughly in my articles about the Substance Abuse Evaluation. Here, we're looking for an example of a catastrophic error in a "do-it-yourself" Appeal. So we're clear, this kind of error should never happen when a person has a real, bona-fide License Restoration Lawyer handling their Appeal. In fact, it's precisely this kind of error that I avoid for my Clients.

Let's assume a person has submitted a Substance Abuse Evaluation that was "legally adequate," or, in the DAAD's view, "sufficient." Let's also assume that the Evaluator notes in the Comments section that the person should involve themselves in some kind of Recovery support, such as AA or Counseling. Let's further assume that are not actively involved in that kind of support at the time of their Hearing.

Of course, they'll lose their Appeal. That's a given. The Hearing Officer will note that the Evaluator felt that such support was important to the person's Recovery, but the person was not so involved at the time of their Hearing.

Yet again: Game over.

But what should they do for next year's Appeal? Do they now start going to AA? What if they testified that they didn't like AA, or found it wasn't for them? How do they address this problem next year, and rectify any inconsistency between their prior testimony and the advice of the Evaluator?

Continue reading "Michigan Driver's License Restoration Appeals - Fixing Errors That Caused the First Appeal to Lose - Part 3" »

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November 26, 2010

Michigan Driver's License Restoration Appeals - Fixing Errors That Caused the First Appeal to Lose - Part 2

In part 1 of this article, we began outlining how the biggest obstacle to winning a License Appeal after an initial loss is addressing and fixing the problems that cause the loss. Now we'll move onto a more detailed discussion of some of those things, focusing on the less severe problems first, and getting into more serious, or catastrophic problems in part 3.

If the reason or reasons for the loss are significant, however, things are different than if they were not that bad.

Fixing 2.2.jpgIn a recent article, I noted that I NEVER call witnesses in my cases. The long and short of that article was that anything a witness can say live can be included in a Letter of Support. Of course, knowing what should specifically be in those letters, and what is a waste of space (like how the person has suffered without a License, how they've learned their lesson and will treasure the ability to drive again, what a good and different person they are, or how their employment opportunities will be so much better if they could drive) is the result of considerable experience practicing before the DAAD. Anyway, many less-experienced Lawyers or "do-it-yourselfers" drag witnesses to the Hearing in the hopes that their testimony will help their case.

Quite often, it does not. As I noted in that witness article, Letters of Support cannot be cross-examined, do not get nervous, and certainly don't make mistakes in testifying, because Letters don't testify. Witnesses do all of the above, even if unintentionally.

As I sit across the conference table from someone who is hiring me to handle their second try at getting back on the road, and I read the Order denying their first Appeal, I often find inconsistencies between the testimony of various witnesses, or between what the witness says and what the person Appealing said earlier. To be clear, witnesses are kept outside of the Hearing Room while the person testifies, so they have no clue what was said. They are called in afterward, having no idea of what has transpired.

Let's say Dan the Driver has testified that he has been sober for 2 years. In response to the Hearing Officer's questions, Dan admits that he had a back injury at work about 9 months ago, and had a prescription for Vicodin, which he used then, but discontinued when his condition improved. Okay, not the best situation, but in and of itself, not the end of the world.

Dan lives at home with his parents (or it could be that he lives with his girlfriend) and either mom or the girlfriend are called in to testify. Even with a Lawyer asking the first questions, there will come a point when the Hearing Officer has an opportunity to question the witness, and be sure, they will.

Continue reading "Michigan Driver's License Restoration Appeals - Fixing Errors That Caused the First Appeal to Lose - Part 2" »

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November 22, 2010

Michigan Driver's License Restoration Appeals - Fixing Errors That Caused the First Appeal to Lose - Part 1

In the last series of License Restoration articles, I provided a rather candid look, from my perspective as a Driver's License Restoration Appeals Lawyer, at why I'd rather deal with someone who has tried a License Appeal on their own, and lost, instead of someone who isn't quite sure if they need or even want a Lawyer, and needs to be convinced of that. I noted that to anyone thinking about doing this on their own, I absolutely say "go for it." I then pointed out that a pretty substantial part of my practice involves handling the subsequent Appeal for those who have tried on their own, and lost. And given that the overwhelming majority of those "do-it-yourself" Appeals do lose, it's just easier to deal with them as they gear up for the second round, rather than have to explain all of this over and over again.

This article will focus on the major drawback to that "do-it-yourself" approach. There are plenty of drawbacks, to be sure, to the self-represented Appeal, and perhaps the most obvious amongst them is the overwhelming likelihood of losing, and having to wait another year to try again. I think I've covered that well enough, even if indirectly, in the previous pair of articles. While losing the Appeal is perhaps the most easily identifiable drawback, it is not the biggest.

Fixing1.jpgThe biggest drawback to the "do-it-yourself" License Appeal is that whatever caused it to fail the first time will have to be addressed and fixed the second time around.

This can mean anything. And that's not imprecise language, that's rather specific. The range of problems that can cause a License Appeal to fail, especially where it's done without the oversight of an experienced License Restoration Attorney, can include anything from small, easily fixable inconsistencies or problems, to huge, catastrophic deficiencies that cannot be fully rectified even within the 1-year between Appeals waiting period.

If the reader has, in fact, tried a License Appeal before (either on their own, or, perhaps, with a Lawyer whose expertise in this area was merely that he or she "does" License Appeals, instead of being someone who concentrates in this rather niche area of the Law) and lost, then they already know how that loss is communicated. Anyone who has not been down that road, however, may not understand this part of the process. Let's clarify:

When a person files an Appeal for Restoration of Driving Privileges, a Written Decision is eventually issued. This is technically called an "Order." Whenever a person loses their Appeal, the Hearing Officer who denied it must write up the very specific reasons why the Appeal was denied. When I say "very specific," I mean that every single reason why an Appeal loses must be noted in detail. This is not only done to advise the person who filed the Appeal of what was deficient, or wrong, about their case, but so that any subsequent Court Appeal of that ruling will be sustained on Appeal. This requires even more explanation.

Continue reading "Michigan Driver's License Restoration Appeals - Fixing Errors That Caused the First Appeal to Lose - Part 1" »

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November 19, 2010

Michigan License Restoration Appeals - Why Those Who Have First Tried on Their Own and Lost Make the Best Clients - Part 2

In part 1 of this article, I began a more detailed explanation of why I'd rather represent a person in a License Appeal who has tried on their own and lost, rather than spend the time trying to convince a skeptic that they should use the services of a License Restoration Lawyer. In this second part, we'll pick up that discussion right where we left off in the first part, and examine this from my perspective as the License Restoration Lawyer.

When that call comes in from someone who has tried on their own, and lost, they know, without fail, that they need guidance. They are, in every sense of the phrase, "all ears." Once I explain that our first meeting will take at least 3 hours, and that's only the beginning, they start to see that there is much more to this than they had at first realized, when they thought they could do it on their own.

Water boy2.jpgMany of those who previously used some Lawyer who said that he or she "does" License Appeals will have read many, if not most or all of my articles about the License Restoration process before they decided to call me. They frequently tell me that their old Lawyer didn't tell them any of the things I go over in my articles, and are sometimes a bit angry about that, feeling a bit mislead. Happy as they are to be speaking with someone who knows this stuff, there is an understandable reticence on their part to hand over money to another Lawyer. It's kind of like getting a bad nose job, then looking for a better Plastic Surgeon to fix it up; a person will be a bit skeptical of the whole medical (or in my case, legal) industry.

While I can't turn back the hands of time and undo what's been done, I can promise two things to anyone whose case I take:

1. If I take your case, it means I think it's winnable. Given that I will close out 2010 with a 100% win rate (having done over 70-some Appeals), and that I always maintain a win rate of well over 90%, that promise is based upon experience, not just hope, and

2. I will do everything humanly and legally possible to make sure we prepare their case as best as can be done to insure a victory. There is nothing more that can be done, but doing any less is just plain wrong

[Update: as of March of 2011, I have instituted a "Guarantee" that if I don't win a person's first License Appeal, the next is FREE. This guarantee applies retroactively to all Appeals Filed or Heard in 2011]

In the end, I wind up with a Client who understands that my advice is based upon real know-how. They don't question me at every turn, looking for shortcuts. There are no shortcuts in these Appeals, period. Instead of having to explain why I say everything that I say, I have a Client in front of me who already knows how well things (don't) go when they try and play Lawyer. Usually, they take notes (I make it a point to provide a pad and pen for every Client at our meetings) and seek to clarify what they don't get right away, which is part of the process of doing this right.

Continue reading "Michigan License Restoration Appeals - Why Those Who Have First Tried on Their Own and Lost Make the Best Clients - Part 2" »

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November 15, 2010

Michigan License Restoration Appeals - Why Those Who Have First Tried on Their Own and Lost Make the Best Clients - Part 1

In any number of my previous articles about Driver's License Restoration, I have outlined the various risks involved in a "do-it-yourself" Appeal without a Lawyer. In the most recent of those articles, I also noted that I have a very strong belief that anyone thinking of doing a License Appeal on their own should absolutely go for it. In reconciling those two seemingly-contradictory positions, I pointed out that, in all honesty, the best and often easiest Clients to have are those who have tried on their own (or tried with some Lawyer who claims to "do" License Restorations) and lost, because they're "all ears."

Is that self-serving of me? Sure. But let me ask you this: Whatever it is you do for a living, would you prefer to have someone interact with you who defers to your knowledge and expertise in that area, and is glad for your advice, or would you rather work with someone who thinks they know as much as you do, or can at least figure it out on their own, and isn't sure if they want your help or not?

all ears2.jpgIn this series of articles, I will explore this in more detail than before, so that the reader can see why I really believe this, and why it works so well for me.

In that regard, that's why I advise anyone considering doing their own Appeal to "go for it!" Seriously. And since I'm drawing back the curtain here, let me explain a bit more. After 20 years of doing what I do, I am at the peak of my game. I have enough cases to keep me busy, and I would be lying if I even pretended that I have the slightest desire to get on the phone with someone who needs or wants to be convinced that having a genuine Driver's License Restoration Lawyer is the better way to go about getting back on the road as opposed to trying it on their own, without a Lawyer.

Instead, I'd rather that they actually do try it on their own, then call me back after things don't quite work out the way they had hoped. Might there be a few really awesome cases that manage to win without a Lawyer? Absolutely. And good for them! Most, however, will learn a hard lesson, and will come to realize that the saying "a little knowledge is a dangerous thing" applies as much to "playing Lawyer" as is does to anything else.

As it turns out, a lot of those "do-it-yourselfers" will call me immediately after receiving a Denial of their Appeal, and want to talk about appealing that loss to a Circuit Court. For what it's worth, I don't do Circuit Court Appeals, and certainly would never consider one where someone represented themselves, or used another Lawyer. Here's why:

The "do-it-yourselfer" blunders into the process, usually with little or no understanding of the Laws that govern License Appeals (DAAD Rules), and often don't even know that the ultra-important Rule 13 exists, much less how it controls these Appeals and the decisions made about them. Thus, when they lose, they have no basis to understand why, much less to challenge the Hearing Officer's Denial as illegal. Instead can only complain about the result being "unfair," which is not any kind of basis for an Appeal.

Continue reading "Michigan License Restoration Appeals - Why Those Who Have First Tried on Their Own and Lost Make the Best Clients - Part 1" »

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November 13, 2010

Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 2

In the part 1 of this article, we began our examination of what a person facing a DUI will be experiencing form the point of being released from Jail right up through the point of going to Court. We'll pick up from there, covering what happens at Sentencing and the inevitable consequence any DUI Driver will face, as well as what can be done to get the least amount of consequences possible.

Obviously, the 1st goal is to stay out of Jail. That's usually not a problem, with the only exception being, in some cases, the 48th District Court in Bloomfield Hills. Beyond that however, there can be a million things a person is ordered to do, and not do, and limiting those things is the whole goal of preparing someone for the PSI and the legally required alcohol screening test. I have noted before that almost everyone facing any criminal Charge, DUI included, will say that they'll do anything to stay out of Jail. I have no doubt each and everyone one of them means that, at the time they say it. Then, later, as the case concludes, and once their Lawyer has worked it our where they don't go to Jail, they are left to deal with the Judge's order to do this and that, and not do other things.

Macomb Sherrif2.jpgIt doesn't take long for a person placed on Probation to start NOT liking all the "do this and do that" stuff, and to resent the "don't do" these things part of the deal. It's about that time they'll utter the most famous words said in so many Criminal cases, yet never in the Courtroom itself: "This is bull$***!"

And I can understand that feeling. That's why doing so well BEFORE a person gets Sentenced by the Judge is so important. Thus, preparing for the PSI is what produces results in DUI cases that aren't dismissed on some technicality. The goal of all that time spent preparing the Client for the PSI and the alcohol assessment is to avoid as many of those "This is bull$***!" consequences as possible.

There are, however, certain consequences that occur in every 1st Offense DUI case. Almost everyone dealing with this charge, whether they ultimately Plead Guilty to OWI or the less severe Impaired Driving Charge, will attend something called a VIP, or Vicitm Impact Panel. This is put on my MADD (Mothers Against Drunk Driving). Some people will also be required to attend something like an Alcohol Awareness Class. This is far less likely in Macomb County, and most of Wayne County than it is in Oakland County.

Continue reading "Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 2" »

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November 9, 2010

Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 1

This article will be about what really happens when a person gets a 1st Offense OWI (DUI). I have plenty of articles about the legal and strategic considerations involved in dealing with this charge in the Drunk Driving section of this Blog. Beyond that, there are plenty of other sites that tout the possibility of challenging every bit of evidence obtained and every step taken in a DUI case (for the price of a King's Ransom) in the hope that the whole case can be dismissed. Given the statistical unlikelihood of that, I thought it's time to talk about what the person facing the DUI can really expect to go through. Again, this article will focus much less on the legal implications, opting instead to examine the practicalities and realities that lie ahead.

The reader facing a DUI has undoubtedly dealt with a number of these realities so far: Being put in the Police car, being taken to Jail, taking the Breathalyzer test, undergoing the Booking and Printing, and finally being released. From there, most people have to go and get their car back.

Breath Tester2.jpgMost of the time, unless there is a sober person in the car with a valid License who can drive it away, the Police will have the DUI Driver's car towed to an impound yard. In some cases, the County Prosecutor will put what can essentially be called a "hold" on the car, and sets a price for the Driver to get it back. When that happens in Macomb County, for example, the fee is usually $900 in a 1st Offense DUI, and $1800 in a 2nd Offense DUI. Even when there is no Prosecutor's "hold" to deal with, there will be a towing and storage charge that needs to be paid to get the car back.

Of course, those first few hours back at home are stressful. Your Driver's License has been taken, and instead you have this "paper License" called a Michigan Temporary Driving Permit. The car is in the driveway or garage with a paper plate instead of the old metal plate. If it isn't, it's sitting in some storage yard waiting to be picked up. When there's no Prosecutor's "hold" on the car, storage charges accumulate by the day. The location of the car is usually indicated in the papers the Driver receives from the Police upon their release.

There are plenty of those papers, too. Usually, but not always, a person is given a Ticket (Citation) for there DUI. Then there's this large, pink sheet that looks like a big store receipt called an "Evidence Ticket" that was generated by the Breathalyzer machine.

If a person refused to take a Breath Test, they most likely will have had their blood drawn. In those cases, they're sent home with a copy of the Warrant signed by a Judge or Magistrate allowing their blood to be taken, and another paper called an "Officers Report of Refusal to Submit to Chemical Test."

Continue reading "Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 1" »

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November 5, 2010

Driver's License Restoration in Michigan - The Substance Abuse Evaluation - Part 2

In part 1 of this article, we began our overview of the importance of the Substance Abuse Evaluation in a License Restoration Appeal. In this 2nd part, we'll continue that overview by examining how a Substance Abuse Evaluation in a License Appeal must meet 2 threshold requirements: First, that is "legally adequate," and second, that it is "favorable."

I noted that part of my motivation in writing this article was the frustration I feel when I see a Substance Abuse Evaluation that hasn't been done properly. This really means that a Substance Abuse Evaluation fails to meet either of the 2 requirements it must meet in order to be deemed "good."

Microscope2.jpgFirst, and foremost, a Substance Abuse Evaluation must be "legally adequate" in the eyes of the Secretary of State. Take a look at the Form. Every one of those lines and boxes require very specific information. The only requirement for the person completing that form is that they be Professionally Licensed to administer and score an alcohol assessment, and make a DSM-IV diagnosis. In other words, being a Licensed Substance Abuse Counselor is all that's needed to sign off on this form.

Notice that the form does NOT request tons of information. Instead, it requests very specific information. Yet, of the many cases which come to me after having tried and lost on their own, or with a Lawyer who claimed to "do" License Restorations, a fair number of them feel that more information is better. I've literally seen 3 and 4 extra pages of information attached to a losing Evaluation. In most of them, beyond including lots of useless details, the exact, specific information requested by the form was left out!

A legally adequate Substance Abuse Evaluation provides exactly the requested information sought on the form. Anything more is a waste of ink and space. In order to know what the Secretary of State really wants, a Counselor must prepare these Evaluations on a regular, on-going basis, and then get feedback from the subject of the evaluation regarding a win, or loss. In other words, without seeing how those evaluations are "evaluated" by the Secretary of State, the person doing them really can have no idea of whether they're getting it right, or wrong. Even if they manage to get it right, that should be the product of knowing what's being sought, rather than sheer luck.

Thus, "legally adequate" means providing the exact, specific information the Secretary of State wants, in the right place, on the Substance Abuse Evaluation Form. If a Substance Abuse Evaluation is not "legally adequate" because it is deficient in some regard, then the Appeal is lost. Nothing can save it. Game over, in other words.

However, submitting a "legally adequate" Substance Abuse Evaluation does not win, nor come close to winning, a License Appeal. It just means you haven't struck out.

Continue reading "Driver's License Restoration in Michigan - The Substance Abuse Evaluation - Part 2" »

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November 1, 2010

Driver's License Restoration in Michigan - The Substance Abuse Evaluation - Part 1

In my numerous articles about Driver's License Restoration, I have examined the process of getting back on the road in fine detail. In many of those articles, I have talked about the role of the Substance Abuse Evaluation and how important it is. In this article, we'll take another look at this first, and utterly critical step in a License Appeal. This is a deep subject. Still, even a somewhat superficial overview will be informative. To do such an overview justice, we'll break the article into 2 parts.

Part of my motivation to write this article is the fact that the Michigan Secretary of State's Driver Appeal and Assessment Division (DAAD), which overseas all aspect of License Appeals, has recently revised the Substance Abuse Evaluation Form. The other part of my motivation is a sense of frustration at the fact that so many Counselors and Therapists who have the academic and professional credentials to fill out and sign this form DO NOT have sufficient experience to know specifically what information the Secretary of State needs and wants, and what information, while perhaps interesting, does nothing to help a case.

Lens3.jpgPart of the problem I've seen with Evaluations that I've not a hand in obtaining is the omission of specific, required information. This is sometimes compounded by the inclusion of lots of other, irrelevant information. We'll discuss this a bit more as we talk about the 2 threshold requirements for a Substance Abuse Evaluation in a License Appeal; that it be "legally adequate," and that it be "favorable."

In response to simply not getting the information it needs to decide a License Appeal, the Secretary of State has recently revised the Substance Abuse Evaluation Form. Instead of just leaving blank lines under the Prognosis section, the new Form actually has check boxes so that it gets an actual Prognosis, rather than a discussion about one not actually written. It is noteworthy that the new Form has a check box for a "Guarded" Prognosis, and omits one for "Very Good."

The same thing has happened to the section for Diagnosis. Rather than hope an evaluator will give a DSM-IV diagnosis, the Secretary of State has created check boxes for all those that are relevant to an alcohol problem.

The reason for this whole revision is that too many people who have the Professional credentials to complete an Evaluation try their hand at it, even though they don't have the requisite experience. My Law License does not prohibit me from taking on a complicated Medical Malpractice case. My lack of training and experience in that field means I should not.

Even with these changes, the fact remains unchanged that there are relatively few Counselors who have a thorough understanding of the License Restoration process. For that matter, there aren't a lot of Lawyers who have that understanding, either.

Continue reading "Driver's License Restoration in Michigan - The Substance Abuse Evaluation - Part 1" »

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