February 2011 Archives

February 28, 2011

3rd Offense (Felony) DUI cases and the Realities of Jail, or not - Part 1

This article will examine 3rd Offense (Felony) DUI cases. I have written extensively about 1st and 2nd Offense DUI cases in the Drunk Driving section of my blog. This article will examine the most serious of all DUI charges not involving a death or serious injury. Because this is an important subject, this article will be long, and divided into 2 parts.

Having been a DUI Lawyer for over 20 years, I know firsthand that absolutely no one needs to be reminded that a 3rd Offense DUI is serious business. My hope is to present a somewhat different perspective about these cases which, instead of focusing on how bad things are, or can be, will focus on how a 3rd Offense case can be handled in a way to minimize all the agony and misery so many other discussions seem to dwell upon.

Jail bench2.jpgAbout 4 years ago, on January 3, 2007, the Michigan Law regarding 3rd Offense Drunk Driving charges was drastically changed. Prior to that date, a person had to accumulate 3 alcohol-related traffic offenses within a 10-year period to be charged with a Felony. In other words, a person needed 2 prior DUI's (or, more specifically, alcohol-related traffic offenses, because a "zero tolerance" conviction could count as a prior offense) and then acquire a 3rd, all within 10 years, before the 3rd Offense Felony charge could be brought.

On January 3, 2007, what is known as "Heidi's Law" took effect. The purpose and effect of this law was to abolish the 10-year limitation for bringing a Felony DUI charge. Instead, ANY combination of 3 DUI's within a person's lifetime was enough to make that 3rd Offense charge a Felony. To this day, while many people know this, many do not.

What cuts across every 3rd Offense case is that sinking feeling a person has when they hear the words "Felony" and "up to 5 years in Prison." As I noted, everyone facing a 3rd offense DUI knows that things are not looking particularly rosy at the moment. And while there's no way to turn any DUI charge, much less a 3rd Offense, into a pleasant experience, there are plenty of things that can be done to avoid much of the unpleasantness a person fears. Even the most "red-handed" and clear-cut cases can be worked out in a way to not ruin a person's life. It may not feel that way at the moment, but there is light at the end of the tunnel.

This article will concentrate on those cases where there is no viable challenge to the stop, the arrest, or the evidence. You could literally write volumes about all the things that could be wrong with a DUI case and could be used to beat the charge, or be acquitted at Trial. However, and statistically speaking, those cases which are thrown out of Court, or in which a person "beats" the charge, are far and away the exception, and not the rule. This article is about real hope in real cases, not hope for a miracle in the once-in-a-blue-moon kind of case.

Continue reading "3rd Offense (Felony) DUI cases and the Realities of Jail, or not - Part 1" »

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February 25, 2011

Staying out of Jail in a 2nd Offense DUI Case in Metro-Detroit

I have written a number of articles about DUI's in general, and 2nd Offense DUI's in particular. This article will focus on only one, and by far the most important aspect of 2nd Offense DUI cases: Staying out of Jail.

My DUI Practice involves handling loads or 1st Offense cases, plenty of 2nd Offense cases, and a good share of 3rd Offense (Felony) cases. Handling a typical 2nd Offense case is often more challenging than handling either a 1st or a 3rd Offense. The reason for this is quite simple; staying out of Jail in a 1st Offense case is pretty much in the bag in all but the rarest of circumstances, and staying out of Jail in a 3rd Offense case (assuming its not plea-bargained to a 2nd Offense case) is legally impossible, short of going to Trial and being acquitted of the charge. A 2nd Offense case puts a person as close as they can get to Jail, without any legal requirement that they actually be put in.

Jail color2.jpgTo be clear, the first inquiry that should be made by a Lawyer handling any DUI case is whether or not there is some way to have the case "knocked out." This means looking closely at the Police Stop, and at the method by which any breath or blood evidence was collected and/or analyzed. Statistically speaking, and all opinions and "sales pitches" aside, those cases in which the evidence can be successfully challenged to the point of getting a DUI case dismissed are far and away the exception, and not the rule. The vast majority of DUI Arrests are not going to be thrown out of Court, dismissed or beaten on some technicality.

This means that, unless a person gets really lucky, and the case is so compromised that the Judge decides to throw it out, it will ultimately be up to the Judge to decide what to do with a 2nd Offender. And you cannot escape the sinking feeling that, whatever kind of Sentence a person received for their 1st Offense, it apparently wasn't enough. This puts a person standing before the Judge right in the crosshairs of a Jail Sentence.

Not surprisingly, most people instinctively know this. When I speak with someone who is hiring me to handle their 2nd Offense DUI, there is one primary concern they have, and reason for hiring me, and that's to stay out of Jail. The good news is that, with the right work, most people facing a 2nd Offense DUI can be kept out of Jail. The key element to this is "the right work."

In another group of articles about 2nd Offense DUI and the issue of a Drinking Problem, I pointed out that a person facing a 2nd DUI needs to understand that the Law presumes, and the Judicial system perceives them as having a problem. A 2nd Offense within 7 years is considered a "habitual offender" violation and results in the REVOCATION, and not merely the Suspension, of the Driver's License for at least 1 year, with no possibility of Appeal. Part of that "habitual offender" status is the additional legal requirement that a person with a 2nd DUI within 7 years be Court Ordered into some kind of Counseling and/or Treatment. And let's be clear; the Law REQUIRES Counseling or Treatment, it does not merely suggest it.

Continue reading "Staying out of Jail in a 2nd Offense DUI Case in Metro-Detroit" »

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February 21, 2011

How Being Involved in AA can Help win a Michigan Driver's License Restoration Case - Part 2

In part 1 of this article, we began an examination of how active involvement in AA can help a person win a Driver's License Appeal.In this 2nd part, we'll pick up with some more examples of why this is the case.

Within the body of my various License Restoration articles, I have written a lot about how I prepare my Client for a Driver's License Restoration Appeal. All of that preparation is put under the spotlight on the day of their actual License Hearing. During the Hearing, I have a number of jobs to do simultaneously. Amongst them is paying attention to my Client's answers to the Hearing Officer's questions. This helps me determine, what, if any questions I ask my Client when I subsequently re-examine them. In the larger picture, this helps me control the impression that is ultimately made at the Hearing.

AA Coins.jpgA few years ago, I was sitting in a Hearing with a Client who was an active AA participant. This man credited the program with not only bringing him to sobriety, but also saving his life. During the course of the Hearing, he was asked by the Hearing Officer to talk about a step or steps, other than the 1st, that were particularly important to him, and to explain why. I felt a surge of satisfaction run through me, as I knew this guy could step up and hit this one out of the park.

Imagine how that feeling of confidence drained out of me, only to be replaced by a cold panic, as I heard him begin an answer that went something like this:

"A lot of people talk about AA as being a 12 step program, but the truth is that it's more like one big jewel, which is really the 1st step, with 11 facets to it." At this point, I was wishing I could kick him under the table, but in the Hearing Room, there's no way to do that without being seen. I struggled to keep a straight face, all the while feeling like our Appeal was dropping like a rock.

My Client continued: "If you took a guy to just 1 meeting in his life, and he heard the 1st step, and never even knew there were 11 more, and if you really explained that 1st step to him, he might just get it, and get the idea that he can't ever drink again. On the other hand, if you exposed him to steps 2 through 12, no matter how many times he heard it, it wouldn't help him quit drinking. Those steps improve a person's sobriety, but only the 1st step can actually give it."

I felt somewhat relieved that the Client had explained himself this way. Just moments before, I thought we were about to crash and burn. As I looked up, I felt even more relief as I saw the Hearing Officer smile and nod. The end result was that the guy won his Appeal.

Continue reading "How Being Involved in AA can Help win a Michigan Driver's License Restoration Case - Part 2" »

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February 18, 2011

How Being Involved in AA can Help win a Michigan Driver's License Restoration Case - Part 1

In a my various blog articles about Driver's License Restoration, I have written in some detail about how someone who does not go to AA can still win a License Appeal. I have noted that somewhat more that ½ of the people for whom I win a License Appeal are not involved in AA. To date, I have not addressed how those who are actively involved in AA have an advantage in that regard. This article will focus on a Driver's License Appeal for someone who is active in AA. Because even a relatively brief overview of this subject will take some space, this article will be broken into 2 parts.

The reader should bear in mind, as we begin, that I never encourage anyone who does or has not gone to AA to start doing so. I believe that whatever a person has done to get and remain sober is, at the core, the truth of their "story" of recovery. Winning a License Appeal is all about properly relating that process. Thus, when someone who has become and remained sober asks me if they should start going to, or going back to AA, I always say "no."

bigbook2.jpgPerhaps part of that is because those who are actively involved in AA undergo a number of transformations as part of their growth within the program. One of those transformations involves becoming honest, both to themselves, and with others. The AA credo, "To thine own self be true" mandates a personal honesty that is an anathema to the practicing alcoholic. AA people want to tell their story because its both true, and because one of the ways they learn to get better is by sharing stories.

If winning a License Appeal was as simple as going in and showing that someone has been in AA for some number of years, this would be about the end of our discussion, and I'd be out of business. The reader seeking to learn about the legal issues involved in Driver's License Restoration Appeal should take the time to read most of the articles from the Driver's License Restoration section of this blog, starting from the bottom, and reading up. For purposes of this discussion, the most important issue (and the one that causes more License Appeals to lose than any other) is set forth in DAAD Rule 13 as follows:

The Petitioner, by clear and convincing evidence, must prove the following:

* * *
(2) That the Petitioner's alcohol problem...is likely to remain under control.

In other words, the person needs to prove that they are a safe bet to never drink again.

At first glance, it would seem that just being involved in AA is enough to satisfy that requirement. However, the State knows that any number of people become involved in AA, for varying lengths of time, and then have a "slip," or relapse. The upshot of that is that there are people are going to meetings at any given time who will drink again. In that sense, they may be able to parrot the steps or words of AA, but they clearly don't yet "get it." Lots of people who finally and subsequently embrace sobriety will say they needed that "slip," or relapse, to reinforce those lessons of AA, that, until then, were perhaps understood intellectually, but not as the immutable truths they are. "Getting it" means coming to an understanding, at the core of a person's being, that the principal lesson of AA, that a person can never drink again without picking up where they left off, is unquestionable. Therefore, an important part of what the DAAD tries to discern is if a person going to AA has really "gotten it" or not.

Continue reading "How Being Involved in AA can Help win a Michigan Driver's License Restoration Case - Part 1" »

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February 14, 2011

Winning a Michigan License Appeal Without Going to AA

Within the catalog of my Driver's License Restoration articles, is has been my goal to cover every aspect of these cases, and address those questions which come up regularly. In that vein, I am often asked about the chances of winning a License Restoration Appeal if someone does not go to AA. I can answer that question with a bit of good news: AA is not required. In a recent blog article I began an examination of the difference between going to AA, as opposed to NOT going to AA. This article will continue that examination in more detail, with a brief look at how someone who has never gone to AA can win a License Appeal Hearing.

To be clear, active involvement in AA is helpful. But in my Driver's License Restoration Practice, more than ½ of the people for whom I win a License Appeal are not active in the AA program. It is not necessary. Amongst my license Restoration Clients who are NOT currently active in AA, I'd say that about ½ of them had previously attended the program, even if such attendance was Court ordered. The other ½ have never been to a meeting in their lives.

Driving2.jpgIt is true that back more than 10 years ago, it at least seemed impossible to win a License Appeal without being involved in AA. This lingering impression is why many old-time AA attendees will tell anyone within earshot that the only way to get a License back is to keep coming to meetings. In fact, it was the case in my own office that, about 10 or more years before now, I wouldn't even consider accepting a License Appeal unless the person was actively involved in AA.

Much has changed for the better, and not a minute too soon. In the first instance, it needed to be recognized that imposing an AA requirement on License Restoration Petitioners was contrary to the treatment outlined by many Substance Abuse Counselors, who did not feel, in any particular case, that AA was necessary for a person's recovery. It has always been the case that a qualified Substance Abuse Counselor would evaluate a new Client and develop the Treatment Program they felt best suited the person. In some cases, AA was recommended, and in others, it was not. So how is it that these people who spend all day, every day, treating Alcohol and Drug problems could be so wrong about what a person needs?

They could not. The State had to accept that, whatever it might prefer, diagnosing and treating an alcohol problem, and calculating what, if any, ongoing support a person may or may not need thereafter, is properly the job and role of the Substance Abuse Counseling Professional, and no one else. In other words, if a Substance Abuse Counselor assesses Joe Blow, and says that he needs one-on-one counseling once per week, then that should stand. No one can possibly be in a better position to make that determination over the Counselor, and particularly not the State.

Continue reading "Winning a Michigan License Appeal Without Going to AA" »

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February 11, 2011

Winning Back a Michigan Driver's License - The Magic of Success

Part of my role as a Driver's License Restoration Attorney is to help my Clients frame the story of their recovery. In a previous article, I called this the "Magic Element" in a License Restoration case. In this article, I want to take a detour from the informational type article I usually write, and instead discuss what I love about being a License Restoration Lawyer, and why I'm so enthusiastic about this subject. In that regard, the reader looking to learn about the License Restoration process should read my entire section about this subject, beginning from the bottom of the section, and reading their way to the top. This article is not the place to start that inquiry.

Its easy to understand how someone could feel a rewarding sense of job satisfaction if they were, say, a rock star, or an artist of some kind. What about the person who becomes a foot doctor (Podiatrist), or a CPA? Sure, they probably make good money, but how much intrinsic satisfaction can the person regularly derive from their day-to-day work?

Magic.jpgWithin the parameters of the Legal profession, there isn't a lot of room for job satisfaction, either. Divorce Lawyers take their Clients at about the worst time in their lives. How much joy can someone get out of being part of a break-up? Estate Attorneys would be hard-pressed to get excited about the last Will they wrote up. Criminal Attorneys most often spend their time helping people clean up an extraordinarily unpleasant situation. I know about that, because its part of what I do.

In License Restorations, however, I am afforded the rare opportunity to help someone get back something they value. I am able to truly look at my work, and the efforts of my Client, and feel satisfaction about producing something good for someone who really deserves it. This is where my earlier reference to the Client's "story" comes into the picture. It's the development of that story, properly told, which results in the person finally being re-licensed. When a person's story is about recovery, its just natural to feel good about helping them get the rewards of all their efforts. Doing something good for someone who has worked for it, and deserves it, really is intrinsically rewarding.

This really all begins at the earliest stage of my relationship with a License Restoration Client. As a matter of protocol, anyone coming to meet with me for the first time has already been determined to be eligible, or soon enough be eligible, for a License Restoration. My first appointment with a new Client lasts about 3 hours, during which I essentially prepare them for the required Substance Abuse Evaluation. In doing so, we examine the transformation the person has undergone from the day of their last drink (often the day of their last DUI Arrest) to the present. My job is to help coax out of the person those sometimes forgotten lessons and stops on the road to Sobriety. Let me explain:

Continue reading "Winning Back a Michigan Driver's License - The Magic of Success" »

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February 7, 2011

Michigan Driver's License Restoration - You must be off Probation, or Parole, to win

In my Driver's License Restoration Practice I have come to realize that very few people know that a person on Probation, or Parole, cannot win a License Appeal. Almost all of those with whom I speak are surprised to learn this. Often, I am asked something like "but I just received a notice from the State that I'm eligible to file for my License. How can that be?" This article will examine that conundrum.

To begin with, the reader should take note of the fact that License Restorations are really the bread and butter of what I do. I say this because the reader should bear in mind that I'm in business to make money, not turn away potential paying Clients. Therefore, when I tell a person they must wait before they can win a License Restoration case, I don't so so because I'm too busy counting piles of money, I say it because I know exactly what it takes to win such an Appeal. In the year 2010, I brought over 70 cases to Hearing, and won every single one of them. This means I passed on any number of those Appeals just not ready, or able, to succeed.

wait.jpgThe reason a License Appeal cannot be won while a person is on Probation, or Parole, is that the Secretary of State's Driver Assessment and Appeal Division (DAAD), the department that handles all License Appeals, deems anyone on Probation or Parole to be "living in a controlled environment." In pretty much every case where a person is on Parole or Probation, they are subject to drug and alcohol testing. Even if a person was required to test so many times per week for the first several months of Probation, and then allowed to terminate that scheduled testing, by virtue of the fact that they are still under the Court's jurisdiction in Probationary cases, and under the jurisdiction of the Department of Corrections in Parole cases, they are still under Order to not consume any drugs or alcohol, and are always subject to a random test requested by their Probation or Parole Officer.

In order to win a License Appeal, a person must show that their abstinence from alcohol is voluntary, and that they have chosen not to drink without fear of consequence. The fact that someone is subject to testing, even if they are rarely (or never actually) tested, means they cannot prove that any period of abstinence was completely voluntary. At least that's how the State sees it.

Let's examine why it works out this way. The 2 biggest issues in a License Appeal are:

1. That the Petitioner's alcohol problem is under control, and

2. That the Petitioner's alcohol problem is likely to remain under control.

Proving that the problem is under control involves proving the person has not consumed any alcohol for a certain period of time. That's the easier of the two.

Continue reading "Michigan Driver's License Restoration - You must be off Probation, or Parole, to win" »

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February 4, 2011

Facing an Embezzlement Charge in Macomb, Oakland or Wayne County - Part 2

In part 1 of the article, we began our examination of Embezzlement cases. We looked at a few typical scenarios that usually precede, if not announce the coming of an Embezzlement charge, and some of the emotional and psychological elements that are typically present.

In this 2nd part, we'll pick up by reviewing some of the more, practical, real-life legal considerations and steps one can expect as an Embezzlement case proceeds through the Court system.

Money Hiding2.jpgMost Embezzlement cases are Felonies. If they weren't already scared enough, when the person hears about the potential to go to Prison for a certain number of years, they freak out. For whatever reason, the vast majority of Embezzlement cases I see involve amounts of money well over $10,000, and many involve amounts involving hundreds of thousands of dollars.

When they think about someone who steals a wallet stuffed with hundreds of dollars being thrown in Jail, a person facing an Embezzlement charge, where the amounts involved are umpteen times higher, rather naturally wonders they're prison-bound.

Then I'm hired, and the first thing I tell the Client is that there won't be any Prison. Most of the time, these cases can be worked out with no Jail. This, I explain, is what you're paying for.

As with all Felonies, Embezzlement cases follow a certain protocol. There is an Arraignment, a Preliminary Examination, a Circuit Court Arraignment and First Conference, followed by a Pre-Trial conference. Sometimes, multiple Pre-Trial conferences are held.

Eventually, unless there is some way to beat the case, a Plea-bargain is produced. This will have several benefits to the Client beyond just sounding good. A reduced charge can change the Sentencing outcome, and can be largely responsible for avoiding any kind of Jail. Beyond that, it does, to some extent, soften the impact to the person's Criminal Record.

Continue reading "Facing an Embezzlement Charge in Macomb, Oakland or Wayne County - Part 2" »

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