May 2011 Archives

May 31, 2011

Happy Memorial Day

US Military5.jpgToday is a day to honor those who have served our County in the Armed Forces. For most of us, it is a day off. Ironically, for those now serving, it is yet another day of defending our Country, being in harm's way, and trying to come home alive.

There aren't enough words to properly thank those who have worn a U.S. Military uniform. They literally put their lives on the line for us. Next time you see someone in uniform, go ahead and thank them for their service. You'll likely get the most grateful smile and acknowledgment you could ever imagine in return.

On this day, let us pause for a moment and send up a prayer for those in our Military. They deserve our deepest gratitude for their incredible sacrifice.

Happy Memorial Day.

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May 27, 2011

DUI in Macomb County -vs- DUI in Oakland County

As a DUI Lawyer, I am in Court almost every day. Ask any Lawyer who has a DUI Practice, and you'll soon find that each and every one will note a profound difference in the way these cases are handled in Macomb County as opposed to Oakland County. Right down to the garden-variety Drunk Driving case, the differences between the 2 Counties are so significant that it almost makes the Lawyer feel like he or she is Practicing in 2 different States.

It is a well-known fact that Oakland County is the toughest of the 3 "Tri-Counties" in which to face a Criminal charge. In DUI cases, that difference is often made clear even before the person even Bonds out of Jail.

DUI Arrest.jpgIn most DUI cases, a person is Arrested in the evening, and typically let out of Jail sometime the next morning. Most often, the person will either post a small Bond (frequently about $100) at the Police Station, or simply be let go with a Notice to contact the Court within 10 or 14 days.

Sometimes, however, a person will be Arraigned, often by video, by a Judge or Magistrate, before they are let out of Jail. In those cases, the Judge sets a Bond amount, and imposes various Bond Conditions. Those conditions always include not leaving the State without prior permission of the Court, and no use of alcohol or drugs. Sometimes, especially in cases involving a 2nd or 3rd Offense, or those involving a high BAC result, those conditions include breath or urine testing. Such testing is far less frequent in Macomb County than it is in Oakland County.

Once the person and their Lawyer come to Court to begin resolving the case, the differences become more pronounced. In those 1st Offense cases brought by a State Police Arrest, the County Prosecutor, as opposed to a local City Attorney handles the charge. In Oakland County, it begins to becomes more difficult to get a Plea Bargain to Impaired Driving when a person's BAC (Breath Test Result) goes above a .12. In Macomb, the general cutoff for that kind of a deal goes up to about .16. Of course, exceptions abound, and the reason a person pays a Lawyer is to try and get one of those "exceptions" in the first place. Still, facing that kind of hurdle at the outset of a case is only a sign of things to come.

Even in a 1st Offense case, for example, where a Plea Bargain to Impaired Driving is worked out, what actually happens to the person can be strikingly different in one County as opposed to the other.

Continue reading "DUI in Macomb County -vs- DUI in Oakland County" »

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May 23, 2011

License Restoration in Michigan - the Ignition Interlock Requirement - Part 2

In part 1 of this article, we began our examination of the ignition interlock requirement for those who win a Michigan Drivers' License Restoration Appeal. In this second part, we'll examine the 1-year requirement for the ignition interlock device, and what happens if a person has a positive, or multiple positive alcohol tests while under the "supervision" of the device.

Beyond the requirement that a person install an ignition interlock unit in whatever vehicle they drive, they must keep that unit in the vehicle for a minimum of 1 year. At the end of that year, they may file for another Hearing before the Secretary of State's DAAD, and seek permission to have the unit removed. This is a departure from before when, after a year had passed, a person could simply remove the unit.

ignition-interlock2.2.jpgTechnically speaking, a person could file for a Hearing to just remove the ignition interlock, but at the time a person becomes eligible to file an Appeal to remove the unit, they also become eligible to Appeal for full Restoration of driving privileges. It goes without saying, then, that everyone files for full Restoration AND to have the interlock unit removed.

This second Appeal is no different than the first, and requires an updated Substance Abuse Evaluation, new Letters of Support, and a whole, full-blown Hearing.

If, however, a person has what's called a "major violation" while on the interlock, (meaning a rolling violation where the driver does not, within 5 minutes, provide a sample with a BAC of under .04, or the driver has 3 or more minor violations within a "monitoring period) then the interlock company sends notice to the DAAD and the person is bought in for a "show cause" Hearing, at which time the Secretary of State positions itself to Revoke their License all over again, unless the person can "show cause" why that should not happen. As noted before, the DAAD isn't very sympathetic to explanations about positive breath test results.

As I have noted in various other articles I have written, after over 20 years of doing this, I've pretty much seen it all. A few years back I had a case where my Client, who was on a Restricted License with an interlock device, got into an argument with his girlfriend. It must have been a real humdinger, because she went to a nearby party store, bought a beer, chugged it down, and then sat in his car and tried to start it with fresh alcohol on her breath. The machine, of course, went crazy.

Continue reading "License Restoration in Michigan - the Ignition Interlock Requirement - Part 2" »

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May 20, 2011

License Restoration in Michigan - the Ignition Interlock Requirement - Part 1

In this blog, it has been my goal to cover every aspect of Driver's License Restoration. I have approached this by writing 2 kinds of articles: The more general, or "overview" type, and those that cover a particular aspect of the License Restoration process in great detail. This article will likely fall into that first category, being more general in nature.

Most of the time I spend with License Restoration Clients involves preparing them for the Substance Abuse Evaluation, which takes about 3 hours in my Office at the time of our first meeting, and then preparing them for the actual Hearing. In truth, very little of my time is spent on what happens after we win our License Appeal and the person gets back on the road.

Interlock5.jpgI don't really consider this any kind of oversight. My job is to win License Appeals, and I guarantee any Client that I will do just that, or their next round is FREE. Once a License Appeal has been won, the Secretary of State, for all of its shortcomings, is pretty good at explaining the steps involved in getting behind the wheel again.

There have, however, been a few changes in recent years regarding what can and must be done once a person has won a Driver's License Restoration case, and many of these involve the rules regarding the ignition interlock device that must be installed by any Michigan resident who wins a Driver's License Restoration Appeal.

Chief amongst those changes has been the rule, or rules, concerning the ignition interlock.

Most everyone knows that if they win their Appeal, they'll be required to install something in their car. Beyond that however, most people are unsure of what, for how long, and under what condition they must use it.

The ignition interlock unit is a kind of breath-tester that requires the person to give a breath sample before the car will even start. Beyond that, the machine goes "off" from time to time and requires the driver to continue to give breath samples as the vehicle is being operated.

A condition of any License Ordered as a result of a License Appeal is that the person ONLY drives a vehicle equipped with the device. To be clear, NONE of this applies to out-of-state cases where a person is seeking a "Clearance." Instead, it only, but always, applies to any case where a Michigan resident is seeking some kind of Restoration of his or her Michigan driving privileges.

Continue reading "License Restoration in Michigan - the Ignition Interlock Requirement - Part 1" »

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May 16, 2011

DUI Charges in Michigan - Dealing with the Emotional Considerations

For all the analysis of DUI cases one can find, I have yet to see anything that tries to look at such a case from the point of view of the person facing the charge. Even within the body of articles in the Drunk Driving section of this blog, I have tried to look at these cases from the point of view of the Judge, the Probation Officer, and even the Police Officer, or at least how the person charged with a DUI should "see" those parties. This article will attempt to do a 180-degree turn and try and get in the head of the person facing the DUI as they grapple with the emotional and psychological considerations of being dragged through the Criminal Justice System.

After more than 20 years of handling DUI cases, I have personally met with and handled the cases for thousands of people dealing with this charge. I have, I think, seen it all, from those who seem rather unfazed by the whole thing to those who break down and cry at almost every turn. It's a safe bet that anyone who has read this far is NOT the kind of person "unfazed" by a DUI, and our focus, therefore, will be on those who feel some kind of emotional burden along with the various practical considerations that come along with a DUI.

Good Person 2.jpgEveryone knows that a DUI is a Criminal matter. Only those who have been Arrested for a DUI, however, have any first-hand knowledge of what its like to suddenly feel like a Criminal.

From the first moment of Police contact, a DUI driver experiences a sense of loss of control. At first, many people may think they can still "get out" of the Traffic Stop, but they soon begin to realize that is not likely to happen. Once they are told to step out of the car, a person starts to feel less and less in control of their own destiny. By the time they're in the back of the Police car, they realize that they have essentially no control over what is going to be happening, at least for a while.

Perhaps the first "punch in the gut" comes when a person is placed in handcuffs. At that point, as they often relate to me, they feel "degraded" and embarrassed. Being placed back into the Police car in cuffs often starts a panic response on the inside, even if they maintain a straight face on the outside. Their mind is whirling as they get driven to the Police Station.

Once they start being processed at the Police Station, most people feel a strong mixture of apprehension, or outright fear, and complete embarrassment. Maybe in their day-to-day life they are someone important. Maybe they tell other people what to do, or how to do things, or have a lot or responsibility. Why hasn't someone seen that they are, at their core, a good person?

Continue reading "DUI Charges in Michigan - Dealing with the Emotional Considerations" »

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May 13, 2011

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

In part 1 of this article, we began our examination of the Diagnosis section of the Substance Abuse Evaluation that is a required part of the Driver's License Appeal process. In this second part, we'll continue that examination by first narrowing our focus a bit and zooming in on what are often called "self-validating" or "test-taking attitude" scores, and then looking at the more general role of the Diagnosis section of the Substance Abuse Evaluation in a License Appeal.

As I noted in the part 1 and part 2 of the previous article regarding Testing Instruments, the most commonly used test for License Appeal Substance Abuse Evaluations is the SASSI-3 (or simply SASSI) Test. Unlike the MAST Test, the SASSI calls for no discretion in the scoring of the Test. However, as we noted in our discussion of the SASSI in that previous set of articles, the SASSI has a number of "self-validating" questions that ultimately result in a "Defensiveness" score. Depending on that score, the overall test results are determined to be more, or less, reliable. The higher the Defensiveness score, the less reliable the SASSI Test results. Of course, the lower that score, the more reliable any such results are determined to be.

Diagnosing2.jpgIf this was as easy as consistently dealing with low Defensiveness scores, then there would be no need for this discussion. However, a sizable chunk of people wind up with Defensiveness scores that, while not high enough to completely invalidate the Test scores, do call them into question. This leaves the test results in need of "interpretation." This means that the Evaluator has to arrive at a Diagnosis based upon not only the Test scores, but his or her experience, disposition and training as a Substance Abuse Counselor. It means, in short, that the Diagnosis is not completely determined by objective standards, but also contains an inescapable element of analytical subjectivity.

Beyond being able to analyze any such Diagnosis independently, it is even more important to know how the DAAD will "see" it. No matter how favorable any such Diagnosis might first appear, if it can, or will be doubted by the DAAD Hearing Officers, or otherwise not automatically accepted by them as inherently reliable, then the result will be a Denial of a License Appeal.

Remember, DAAD Rule 13, which governs License Appeals, mandates that the Hearing Officer "shall not" issue any driving privileges unless the person Appealing proves his or her case by "clear and convincing evidence." This means that if the Hearing Officer has any unresolved question or questions about the evidence presented in support of the Appeal, the person will lose. Therefore, a questionable diagnosis will in turn lead to the Hearing Officer declaring the Substance Abuse Evaluation to be "questionable" or "insufficient," and the whole Appeal goes down the drain.

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

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May 9, 2011

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

In the previous 2-part article, we began a rather detailed examination of the "Testing Instruments" section of the Substance Abuse Evaluation that must be completed and filed as part of any Driver's License Appeal. In that article, we noted that, quite logically, the result of that Alcohol Evaluation Test is a "Diagnosis." This article will bring that whole "Diagnosis" section under the lens for another in-depth analysis. Part 1 and part 2 of the preceding article should be read as a pre-requisite to this one. In this article, we'll analyze the Diagnosis that results from whatever Test is given, and analyzed in the prior set of articles.

These "fine-tooth comb" type of articles are for people, like me, who are interested in details. Within the body of the Driver's License Restoration section of this blog, I have all kinds of articles that range from a summary overview of License Appeals, to a more specific analysis of the process, all the way to articles like these, which provide a nearly microscopic analysis of just one component of that process. As I noted before, I find that many of my Clients are interested in the fine points and minutia, and that's a good thing. Beyond the mere desire and willingness to learn, this helps provide me with a Client base that is considerably more well-read and intelligent than average.

Diagnosis5.jpgInterestingly, if not ironically, the Diagnosis section of the Substance Abuse Evaluation comes before the Testing Instruments section. This is a little bit of the-cart-before-the-horse in terms of layout, but beyond being a bit illogical, it does not change the fact that the Diagnosis is the result of whatever Alcohol Assessment is administered.

The range of possible Diagnoses is not particularly broad. Essentially, after taking an Alcohol Assessment Test, a person can only get 1 of 3 rather general diagnoses:

  1. "no diagnosis" (meaning no alcohol problem),
  2. "alcohol abuse," or
  3. "alcohol dependence."
Within these broader categories, there are a few sub categories: A person can be either an early, or late-stage alcohol abuser; alcohol dependent, or chronically (meaning late stage, or longstanding) alcohol dependent. These sub-categories are seldom used in License Appeal Substance Abuse Evaluations, however, so we'll omit any discussion of them.

In the real world, a "no diagnosis," meaning "no alcohol problem" diagnosis almost never occurs. In fact, even if such a diagnosis were reached in any particular case, the Secretary of State's Driver Assessment and Appeal Division (DAAD) would have grave doubts about it. This is because it is pretty much assumed that anyone with 2 or more DUI's has some kind of alcohol problem. This means that there are really only 2 plausible and realistic diagnoses: Alcohol Abuse, or Alcohol Dependence.

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

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May 6, 2011

Michigan Driver's License Appeals - The Alcohol Screening Test, or "Testing Instrument" - Part 2

In part 1 of this article, we began examining the Testing Instruments section of the Substance Abuse Evaluation used in Driver's License Restoration Appeals. We'll pick up where we left off, shifting from a more general inspection to some of the more important specifics of this section.

License Appeals are decided by Hearing Officers in the Secretary of State's Driver Assessment and Appeal Division (DAAD). In my Practice, I have ALL of my cases heard in the Metro-Detroit DAAD Office in Livonia. I know each of the Hearing Officers there very well. Having been in front of each countless times, I have likewise come to know that all of them have a very good understanding of the whole Alcohol Assessment process, and several know more about these Assessments than a person could ever imagine. It is, after all, what they do all day. Even the busiest, most senior Judge will see only a fraction of the alcohol cases that will come before any DAAD Hearing Officer. To put it bluntly, they are experts at this.

Scantron test1.jpgBecause of their expertise, the Hearing Officers not only know how to read a Substance Abuse Evaluation and the specific Testing Instrument used in any case (and the ACTUAL Test a person took, and their actual Results sheet MUST be attached to the Substance Abuse Evaluation), but they also know how to look for anomalies between any such test, and the other information or conclusions presented or reached within the Substance Abuse Evaluation form itself. Moreover, they can "sniff out" an unusual test, or test result, or any information within the Substance Abuse Evaluation that seems inconsistent with a person having racked up 2 or more DUI's.

This means I have to tread carefully around this facet of preparing my Client for the Substance Abuse Evaluation. Too much attention will trip the "over-prepared" alarm. Not enough preparation can result in all kinds of problems. Let's be honest for a moment; all of us, from on school days onward, have had to take it on the chin as a result of not being prepared enough for something. Your License Appeal is not the situation in which to relive that sinking feeling.

Beyond the local Clinic I prefer (which as noted I the first part of this article, uses the SASSI-3 Test), many Evaluators use the MAST Test. This test is often used by Courts in DUI cases, and is relatively short. It is, quite frankly, easy to prepare for, and easy to do well on. Unlike the SASSI, the MAST does not have any kind of "defensiveness" score. In a DUI case, I can make sure a Client scores as low as possible on this test, sparing them all kinds of time sitting in Counseling sessions, Classes, and singing "kumbaya " with their new DUI friends.

Continue reading "Michigan Driver's License Appeals - The Alcohol Screening Test, or "Testing Instrument" - Part 2" »

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May 2, 2011

Michigan Driver's License Appeals - The Alcohol Screening Test, or "Testing Instrument" - Part 1

An inherent part of my Practice, as a Driver's License Attorney, is preparing my Clients for their Substance Abuse Evaluation. After that, I must review the completed Substance Abuse Evaluation to make sure it is both Legally adequate (meaning it contains everything it must), and favorable (meaning it helps the Client win the License Appeal). This preparation, which takes place at my first meeting with a new Client, takes about 3 hours. Once the Evaluation has been completed, both my Ann (my Senior Assistant), and I, will go over it with a fine-tooth comb.

I have covered some of the prerequisite requirements for a good Substance Abuse Evaluation in other articles within the Driver's License Restoration section of this blog. In this article, we're going to focus on one specific aspect of this Evaluation, the Testing Instrument. This will be a long, highly-detailed article, and will be broken into 2 parts.

Testx4.jpgMany of my Clients have a keen interest in exploring every facet of the License Restoration process as they do their homework, and that, in my opinion, is a good thing. For those not interested in the minutia of all that's involved, however, I have a few articles that simply overview the License Appeal process. This article will appeal to those who are more "detail people" rather than those who simply want to call my Office, find out if they qualify, make an appointment, and rely upon my guarantee that I'll win your License Appeal, or your next is free.

The "Testing Instrument" part of the Substance Abuse Evaluation is actually a section of the form in which the Evaluator gives the person being evaluated a written Alcohol Screening Test, and thereafter "scores" it.

The "score," or result of whichever specific Testing Instrument is used is a Diagnosis. This is really a fancy way of determining the degree of, or "staging" a person's alcohol problem. This makes sense: Take a screening test, and you get a Diagnosis. Examining and explaining the resultant Diagnosis will be the subject of a separate article.

In a way, having to take a written Alcohol Screening Test as part of the overall Substance Abuse Evaluation is sort of like taking a test within a test. This can more clearly be understood by remembering back to a person's DUI cases. As part of the DUI process, after a Plea has been entered, but before a person is Sentenced, they have an interview with a Probation Officer, and part of that interview process (technically called a PSI, or Pre-Sentence Investigation) is having to take a written Alcohol Screening Test.

Continue reading "Michigan Driver's License Appeals - The Alcohol Screening Test, or "Testing Instrument" - Part 1" »

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