April 2011 Archives

April 29, 2011

The Role of Police Video in a Michigan DUI Case - Part 2

In part 1 of this article, we began examining the role of in-car Police video in DUI cases. We left off after reviewing the role of in-car video right up through the Traffic Stop. In this 2nd part, we'll pick up with what typically follows in any DUI Traffic Stop, the Field Sobriety Tests.

Beyond the Traffic Stop itself, in-car video can record the Field Sobriety Tests. In these cases, the audio is also important. Therefore, it shouldn't come a surprise that in any number of these videos I've obtained, there was no audio, or the Sobriety Tests were performed outside the angle of view of the in-car camera.

Cop Video 2.jpgTo be fair, in most of the videos I've seen and heard, the Client has, to put it nicely, not been at their best. Told, for example, to count backward from 89 to 72, the Client will continue on past 72 into the 60's. Letters are skipped during alphabet recitals. "I've seen enough. Turn it off" is a request that has been made of me any number of times while the Client and I watched the video.

Again, even if the video offers no help in avoiding a DUI, it does bring a certain peace of mind to the Client, because they can at least move beyond any belief (or clouded memory) that they did "fine."

Although it may be exception, rather than the rule, finding that video where the Client does just fine is a bonus. It's like finding a pound of gold in a ton of dirt.

Before any of this can be done, however, it must be determined whether or not there was any in-car video. As a general rule, most Police departments will "recycle," or erase over any video in about 30 days after it is recorded. This means a person must not delay in hiring a Lawyer to make that inquiry to prevent destruction of this evidence.

Which should bring to mind two very important questions. Why would the Police destroy any video that supports their case? Wouldn't they really only be interested in getting rid of any video that did NOT help their case?

Continue reading "The Role of Police Video in a Michigan DUI Case - Part 2" »

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April 25, 2011

The Role of Police Video in a Michigan DUI Case - Part 1

In my capacity as a DUI Lawyer, I have read, in my 20-plus years, thousands upon thousands of Police Reports. Careful examination of the Police Report in any DUI case is absolutely essential to proper handling of the case. In the last number of years, however, the presence of Police in-car video has added another ingredient to the mix of things that must be reviewed by the Attorney before any plan of intelligent action can be formulated. This article will be a bit longer than most of the others in the Drunk Driving section of this blog, and therefore will be divided into 2 parts.

We live in a video world. The advent of shows like "Cops" introduced us to seeing Police in action. And if you want to take about media "bias," how often do you see Police video of innocent people being questioned, and the let go? Short of the Rodney King video, and perhaps a few other examples of Police misconduct, all captured by third parties, by the way, we've essentially been trained to expect Police video to demonstrate guilt.

Cop Video.pngIf you tune in to the local news, and there is Police video being run as part of any story, it almost always shows the Police arresting someone who should be arrested. DUI drivers are shown as staggering, and if there's audio, you hear them slurring their speech, or sounding otherwise drunk.

In DUI cases, it is not uncommon for me to be asked by a new Client, before I ever even get that far, about the Police video. "Can you get it? I'd like to see it."

In-car Police video has the potential to derail a DUI prosecution more than any other single piece of evidence. Admittedly, those examples of cases where the Police video contradicts the Officer's written version of events aren't very common, but for an investment of about $50, it amounts to a small price that can result in a huge payoff.

It is important to note, however, that Police are not required to have video-equipped Police cars. And even if the car has such equipment, there is no Law requiring that it be operational.

In the real world, Police video can really impact 2 major areas of a DUI arrest: The initial Traffic Stop, and the Field Sobriety Tests.

Continue reading "The Role of Police Video in a Michigan DUI Case - Part 1" »

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April 22, 2011

Reviewing a Driving Record to Determine License Restoration Eligibility

As a Driver's License Restoration Lawyer, one of the first things I do in any case is determine a Client's eligibility date to file a License Appeal. Sometimes, this takes on a life of its own, as any number of people "think" that they're eligible, but don't have any verification of that. This article will focus on how I make that determination, and what I need to do that.

To be fair, any number of people who call me are well past any eligibility date to file a License Appeal, and there's really no issue with that. Also, lots of people have already obtained a copy of their Driving Record, and have confirmed that fact.

Xray1.jpgThe single best thing I can examine is that Driving Record, like a Doctor will examine a Patient's x-ray before determining what course of action to take. Having examined perhaps thousands of these Records, I can make short work of interpreting the information contained therein. In a matter of a minute or two, I can tell a person if they are eligible, or not, to file a License Appeal, or if there is something they can do to make them eligible.

To bypass any difficulties, if a person can get a copy of their Driving Record, and get it to my Office (we accept them by fax, mail, in-person drop off, or e-mail/scan), I can instantly make a determination.

An example of where things aren't so clear came up just the other day. I was contacted by a person who had moved out of Michigan, and went to get a License in his new State. Of course, he was told that he could not obtain a License until he "cleared" his Michigan hold. Next, he contacted me.

It turns out this person has had 3 DUI's in the last 6 or 7 years; 1 in Michigan in 2010, and 2 out-of-state, before that. Now, under Michigan Law, he should be Revoked for at least 5 years for having 3 DUI's within 10 years. Yet he indicated that when he called the Michigan Secretary of State, he was told he became eligible to file a License Appeal earlier this year.

Something is wrong with that. And the last thing I want to do is take someone's hard-earned money, file an Appeal, and be informed, at the Hearing, that there was a mistake. Even if 1 of those out-of-state DUI"s doesn't show up on his record right now, he is going to be asked, at the Hearing, how many DUI's he's had. Even if he lied (and he never suggested he would, nor would I let him...), and won that Appeal, if (and more likely, when) that 3rd DUI ever did hit his Record, it would cause all kinds of problems, and would likely get him back in front of another Hearing Officer. That Hearing Officer would know the guy lied at his last Hearing, and they'd take everything else he said with the knowledge that he has already lied under oath. He'd be doomed.

Continue reading "Reviewing a Driving Record to Determine License Restoration Eligibility" »

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April 18, 2011

Michigan Driver's License Restoration - "Holds" for Multiple DUI's for Former Residents

A large part of my Practice, as a Driver's License Restoration Lawyer, involves helping people who now live out-of-state "clear" their Michigan Revocation so that they can be Licensed in the state in which they now live. This article will explain the difference between the License relief typically given to a Michigan resident and that available for someone who now lives out-of-state.

Usually, I am contacted by someone now in another state who has tried to obtain a License in that state, only to be informed that they are not eligible to do so until they take care of an outstanding Michigan "hold." Almost everyone who contacts me has done enough investigation (often having read the Driver's License Restoration section of this blog) to discover that the "hold" on their License stems from 2 or more DUI's that have resulted in the Revocation of their (former) Michigan Driver's License.

leaving_Michigan1.jpgSometimes, these individuals had a License in another state for a while, and this previously undisclosed "hold" comes up when they try to renew. Most of the time, however, and in large part due to what is know as the National Driving Register, the Michigan "hold," which is actually a Michigan Revocation, turns up before any License is issued.

In many cases, I am contacted after a person has filed for an Administrative review and lost. It's then that I almost always have to tell the caller that they'll have wait a year in order to correct the errors that caused them to lose their first, do-it-yourself Appeal, and then try again, this time with a Lawyer (like me) who specializes in License Appeals.

It is not uncommon for me to hear a familiar desperation in the caller's voice, telling me that they'll settle for any kind of relief, and would do anything just to get some kind of Restricted License.

And that is the whole point of this article. There is no "Restricted License" option for out-of-State residents. Instead, those who now live out-of-state but have a Revoked Michigan Driver's License can only obtain a "Clearance," which is essentially the same thing as a full, un-Restricted License.

Continue reading "Michigan Driver's License Restoration - "Holds" for Multiple DUI's for Former Residents" »

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April 15, 2011

DUI in Macomb, Oakland and Wayne Counties - How Things Have Changed

As a DUI Lawyer who has been in practice for over 20 years, I have seen the landscape of the whole Drinking and Driving field change considerably over that time period. Within the body of articles in the Drunk Driving section of this Blog, I have covered many aspects of DUI cases, from the Traffic Stop, to the Field Sobriety Tests, to the actual Breath Test, right up and through how a DUI case is handled in Court, including the Alcohol Assessment Test, how and why that is so important, the steps in the DUI process, through what actually happens to the Driver in Court.

This article will not be as informational as are most of my others. Instead, my aim here is to look at how the DUI world has changed in the last 2 decades. I don't do this because I'm getting long in the tooth, or anything like that. Recently, a number of my DUI Clients have come to me with a prior DUI conviction or two from many years past, and can hardly believe what I'm telling them about how these cases are handled today.

The Past1.jpgTo start with an example, I remember well when many Judges, in Sentencing someone for a DUI, would Order, as a condition of Probation, that the person simply NOT drink and drive. Today, there isn't a single Judge who does not, as a matter of course, Order a person to not drink at all during the term of Probation. In the overwhelming majority of cases, including most 1st Offenses and all 2nd and 3rd Offenses, this is backed up by an order for breath and/or urine testing. Sometimes this testing is done at random, other times it is carried out more regularly.

A number of years ago (okay, at this point I'll admit I've been doing this so long that I don't remember exactly when) a few Courts would order someone with a DUI to complete an "Impact Panel," often called a "Victim's Impact Panel." Now, every single Court, without exception, includes this as part of the punishment for a DUI. If the Pope got a DUI, the Judge might kiss his ring, but he or she would next order His Holiness to complete an Impact Panel.

Similarly, there has been an explosion of "Classes." With names Like Alcohol Highway Safety Class, to Alcohol Awareness Class, to what's called the ARM (which stands for Accepting Responsibility is Mandatory) Class, there seems to be no end to the kinds of Alcohol Education Classes a DUI Driver faces.

Today, just paying Fines and Costs is a relatively rare exception. 15 or 20 years ago, it was far more common.

Continue reading "DUI in Macomb, Oakland and Wayne Counties - How Things Have Changed" »

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April 11, 2011

Michigan Driver's License Restoration - Why so Many Appeals Lose

As a Driver's License Restoration Lawyer, I deal with the details and nuances of the License Appeal process every day. One Rule, in particular, is the centerpiece by which pretty much every License Appeal wins, or loses.

The Rule which governs Michigan Driver's License Restoration Appeals is known as "Rule 13." You'll find it quoted in any number of the articles within the Driver's License Restoration section of my Blog, as well as in my website. Similarly, you'll find it splashed all over the web. It's not a particularly difficult Rule to read, but I honestly think that practically no one, including most Lawyers, understands the single most important facet of this Rule.

Denied4.jpgThis article will examine what's really at the core of making a License Appeal so difficult. Rather than reprint the whole of Rule 13, we need only look at the very first part of it to see what I mean:

Rule 13. . . .

(a) The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:

The key words here are "shall not." There really is no other Law or Rule of which I know that is written in the negative. This one is.

In Criminal cases, the Prosecutor must prove guilt "beyond a reasonable doubt." In a Civil Lawsuit, the person suing must prove their case by a "preponderance of the evidence." These standards of proof are written in the affirmative, meaning that Judge or Jury is NOT instructed to look for reasons to convict, or rule against someone. The DAAD Rulef, however, is essentially written in the negative. The Hearing Officer is instructed to deny a License Appeal unless the person proves their case by "clear and convincing evidence."

Continue reading "Michigan Driver's License Restoration - Why so Many Appeals Lose" »

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April 8, 2011

Sobriety as a Requirement for a Michigan License Appeal

Sobriety. Few words in the English language can contain so many different, yet related meanings. Depending on the person, the word Sobriety can mean anything from a welcome change of behavior in a family member or friend to the feeling of practically being "born again" in the person who experiences it.

In my line of work as a Driver's License Restoration Lawyer, Sobriety means several things. It is a minimum requirement in order to win a License Appeal. It is the starting point from which my Clients begin to rebuild their lives, and often discover things are better than they ever could have imagined. It is a state of being that cannot be faked, although any number of people try to do just that.

secondchance2nd-2.jpgIn the rather large collection of articles in the Driver's License Restoration section of my Blog, I examine the License Restoration process in detail, often pointing out that central to any winning License Appeal is the story of a person's Recovery. I have also pointed out that, beyond just looking for Clients to pay my Fee for a License Restoration Appeal, I am looking for people who really, truly have achieved that wonderful state of Sobriety.

The truth is that I've grown used to winning License Appeals. In fact, I'm so confident in my ability to win a License Appeal that I recently added a guarantee in my License cases promising that if I don't win a Client's first License Appeal, the next one is FREE! A necessary component of that success, however, is screening my Clients to make sure they really have gotten Sober.

Merely not drinking is a far cry from real Sobriety. Anyone who is truly Sober knows this, while anyone who isn't is wondering what the big difference is, anyway.

I have had people sit across from me and tell me that they'll say whatever I want them to, but that in reality, no one is going to tell them not to have a glass of wine, or a bottle of beer, every now and then with dinner. I've declined representation in those cases. I have more than enough good work to keep me busy without the need to destroy my reputation by trying to pass off a Sobriety pretender as the real thing.

Continue reading "Sobriety as a Requirement for a Michigan License Appeal" »

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April 4, 2011

How a Revoked License Charge will Affect a Michigan Driver's License Restoration Appeal

In the previous article about Driver's License Restoration eligibility, we learned that 2 DUI's within 7 years requires a License Revocation of at least 1 year, and that 3 within 10 years results in a License Revocation of at least 5 years. In this article, we'll examine how picking up any Driving convictions, including Driving While License Suspended/Revoked/Denied (DWLS/DWLR), will extend that period of Revocation, and for how long.

Many years ago, The Michigan Secretary of State used to impose what was then called a "Mandatory like additional" period of Suspension or Revocation if someone was caught driving during a period of valid Suspension or Revocation. Since those days are long gone, and the lingering cases from that period growing fewer, we won't waste a lot of time revisiting ancient history. The major upshot of the Laws that existed prior to 1999 was that a person who got caught driving during a period of Revocation due to multiple DUI's would get another identical period of Revocation slapped upon them.

Stop3.pngThis meant that a person with 3 DUI's within 10 years, whose License was Revoked for a minimum of 5 years, and who got caught driving during that period would have another 5 years of Revocation imposed upon them.

If they wound up with 10 years to wait before they could apply for a License Appeal, and got caught driving during that time, then they'd get another 10 years of Revocation added. If, after that, they got caught driving during that 20 year Revocation period, they'd get another 20 years.

Recently, I received a Driving Record from someone who, because of those old Laws, is Revoked until the year 2034.

The good news for this shrinking class of people is that they can go to Court and have those pre-1999 Revocations set aside and become eligible to file a License Appeal. There are, of course, certain requirements and conditions that must be met in order to do this, but if they've not been caught driving within the last 5 years of so, then the way can be cleared in order to file a License Appeal.

More common, however, is the situation where a person has been Revoked for a 2nd, 3rd or subsequent DUI after 1999, and then gets caught driving during that 1 or 5 year Revocation period.

Continue reading "How a Revoked License Charge will Affect a Michigan Driver's License Restoration Appeal" »

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April 1, 2011

Michigan License Appeals - When can I File?

Sometimes, in the course of doing whatever we do for a living, we lose sight of the fact that not everyone understands all the little details involved in our line of work. In my capacity as a Driver's License Restoration Lawyer, the issue of a person's eligibility to file a License Appeal is an inquiry I make multiple times every day. One look at a Driving Record, or a few quick answers from a caller, and I can tell in a heartbeat when the person will be eligible to file a License Appeal. This article will attempt to explain the timing issues of License Appeal eligibility in a clear, straightforward manner.

In the Driver's License Restoration section of this Blog, I have tried to cover the License Appeal process from every possible angle. The issue of eligibility isn't really about the process as much as when that process can begin.

calendar1.jpgThe primary rules regarding License Revocations are actually pretty simple: If a person has 2 alcohol-related (DUI) and/or substance-abuse related convictions within 7 years, then their Driver's License will be Revoked for a minimum of 1 year.

If a person has 3 or more such convictions within 10 years, then their Driver's License will be Revoked for a minimum of 5 years.

That sounds rather simple, but, it should come as no surprise that it's more complicated than that.

First of all, when we speak of a person being Revoked for a "minimum" of either 1 or 5 years, we principally mean that the person will be ineligible to even start the Driver's License Appeal process until that "minimum" time period has passed. To put it another way, if a person has 2 DUI's within 7 years, their License will be Revoked for a minimum of 1 year. If they wait for 5, or 10, or even 25 years, they cannot just thereafter go to the Secretary of State and have their License Reinstated. The Secretary of State will inform them that they must go through the License Appeal process, and only if they win that Appeal will they be able to be re-licensed. If they lose, then they'll have to wait another year to Appeal again.

Thus, a "minimum" of 1 year means just that; there is no way they'll be able to be re-licensed for at least that long. It could be longer.

Continue reading "Michigan License Appeals - When can I File?" »

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