July 2011 Archives

July 29, 2011

DUI and the Commercial Driver's License (CDL)

A fair number of my DUI Clients are individuals who have a CDL, or Commercial Driver's License. Some know, before they contact me, that any kind of DUI conviction, including a 1st Offense, will automatically result in a 1-year Suspension of a person's CDL privileges. Those who didn't already know that are rather unpleasantly surprised to find out.

It used to be, a few years ago, that when a person faced, for example, a garden-variety DUI (meaning OWI, actually), their Lawyer would get the charge dropped to the less severe Offense of Impaired Driving, which only carries a 90 day Restriction of a person's License. During the 90 days the person's regular Driver's License was Restricted, their CDL was Suspended. After 90 days, they'd pay a $125 Reinstatement Fee to the Secretary of State, and their full License, including CDL, would be given back.

Garbage3.jpgThen someone in Lansing had an idea. Honestly, I try to keep politics out of this blog, but the older I get the more I'm convinced that politicians aren't nearly so much crooked as they are incompetent. Really, how many laws have been passed that made your life any better? Maybe the smoking ban was a good thing (sorry smokers...), but beyond that, anything that comes out of Lansing is either going to make life more difficult, or expensive, or both.

Anyway, some Einstein in Lansing figured that it would be a good idea to tack on a mandatory 1-year Suspension of a person's CDL as a punishment for any 1st Offense DUI charge. I can only guess that the idea behind this action was that this would somehow serve as a further disincentive for anyone to drink and drive.

Except that about the only time anyone finds out about this is AFTER they get a DUI charge, when it's too late to do anything about it. And the fallout from this part of the law is pretty substantial.

I've had utility workers who drive trucks for their employers worried sick about losing their jobs. The good news is that in all the cases I've handled, my Clients have been able to manage some kind of work-around. Sometimes this means filling a different position, and other times it means riding shotgun with another driver.

Continue reading "DUI and the Commercial Driver's License (CDL)" »

Bookmark and Share
July 25, 2011

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

Within my Driver's License Restoration Practice, a significant percentage of all the Driver's License Restoration cases I handle are for Clients who live outside of the Detroit area. I have Clients from all corners of Michigan, and from all corners of the continental U.S., as well. No matter where they live now, all these Clients have one thing in common: They formerly held a Michigan Driver's License which was Revoked because of multiple DUI's. For those that no longer live in Michigan, the implications of a Michigan Revocation can be frustrating, to say the least.

There are lots of reasons people leave Michigan, but it's safe to say that in all cases, it wasn't because things here were going too good. In some cases, people move to some place where transportation isn't a problem. In others, the prospect of good paying work entices them to leave, figuring that being somewhere warmer and making money, even without having a License, beats being cold, unemployed, and still having no License.

MI Road Sign2.pngAt some point, however, a person who formerly held, and then lost, a Michigan Driver's License tries to get one in their new State. And no matter how much time has passed, they find that Michigan has a "hold" on their License, and that they cannot do anything until they clear that "hold."

So they start researching. And they soon learn that in order to get that "hold" released, they need what's called a "Clearance" from Michigan.

A "Clearance" is basically the same thing as getting one's Michigan License Restored, without getting an actual Michigan License. It is as simple as this: If a person still lives in Michigan, then the only action the State can take is to Restore their License. If a person has moved out of state, then Michigan can only release its "hold" by granting a Clearance. No state can give a License to a non-resident. Think about it for a moment; if you were traveling to Texas, as a resident of any other state, and when to their DMV and said "Hi. I'd like to get a Texas Driver's License." What do you think they'd say? It's not like this is "collect all 50, and win a prize...."

Perhaps the critical difference between those who still have a Michigan residency and those who do not is that any resident can and will ONLY win back a Restricted License. A Michigan resident CANNOT win a full, unrestricted License. By law, a Michigan resident will have to serve at least 1 year on a Restricted License with an ignition interlock system in whatever car they drive, None of this, however, applies to people who have moved out-of-state.

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

Bookmark and Share
July 22, 2011

Facing Embezzlement Charges in Michigan and Dealing With the Emotional Implications

It wasn't that long ago that I wrote a 2-part article about the increasing number of Embezzlement cases that I am handling. As I noted in that article, the increase in my Practice mirrors a larger trend beyond the doors of my Office. I can only surmise that these tough economic times have driven people to engage in behavior that they would not otherwise even consider.

Having dealt with so many of these cases recently, I thought we'd examine them from an emotional, and real-world point of view, rather than just hold Embezzlement charges up for yet another legal analysis.

woman-silhouette1.jpgThe majority of Embezzlement cases I see involve women being charged. That's not to say that men are a distinct minority, but in almost every other kind of charge, the ratio of men charged, as opposed to women, is pretty high. Men commit more crimes than women. Embezzlement cases flip that on its head.

The amount of money taken (or lost, as in the case of those who take or otherwise handle property), by the time the case is brought, is usually quite high. I haven't seen more than one Embezzlement case involving less than $20,000 in a long time, and many involve amounts in the hundreds of thousands of dollars. In the smaller case I just mentioned, a male Client had pilfered a few pairs of jeans and some tools from his employer, a large retail company. He didn't realize that he had been observed on camera. His case was worked out so that he avoided getting a Criminal Record.

Most of these cases begin with a call from a Police Detective, or and investigating Police Officer. This is usually when I get called. Often, the person is somewhat conflicted about just getting this off their chest and hoping that it can somehow go away. They need direction, even if they already know any Lawyer worth a nickel is going to tell them not to say anything.

At this point, the Police almost always already have the information they need to bring the charge, anyway. The "charging" document is called a "Warrant." If they didn't have enough information to get a Warrant, then it would, of course, make little sense to go in and give them the missing piece or pieces needed to bring a case. This is why I always advise anyone to contact a Lawyer BEFORE they go to the Police Station, or make any kind of statement.

Continue reading "Facing Embezzlement Charges in Michigan and Dealing With the Emotional Implications" »

Bookmark and Share
July 18, 2011

Michigan DUI - Understanding and Challenging Breathalyzer Results

Anyone facing a DUI understands that the breathalyzer results are very important. Those numerical results are supposed to equate to a person's Bodily Alcohol Content (BAC), and are used by the Police and Prosecutors to show that that a person was "under the influence" or "over the limit" in any Drunk Driving Case. Beyond that, once a person's BAC has been measured at the Police Station, they are not released until that number has fallen low enough to be sure the Police aren't responsible for letting an intoxicated person out of their care and custody.

In my DUI Practice, this number is important to me for a variety of reasons. It goes without saying that any DUI Lawyer, like me, looks at that number with the hope that it can somehow be challenged in a way that makes the whole DUI charge collapse. In this article we'll briefly examine the whole notion of challenging the breathalyzer.

case-dismissed3.jpgI have pointed out that not every DUI charge can be easily "knocked out" because of some catastrophic breathalyzer problem. This is a phrase that we'll repeat a number of times throughout this article. I simply will not set up shop and "cash in" by selling, and telling people, what they want to hear, as opposed to telling the truth. And the truth is that not every single DUI case can be dismissed on some breathalyzer technicality. It angers me, however, that this tactic claims so many people who are vulnerable, and just hand over their money to someone disingenuous enough to smile, and take it.

In a prior article entitled Michigan DUI - How the Rich and Famous Beat the Charges," I pointed out that, in most cases, they don't. I think that's a fact worth repeating. If these charges could be beaten by simple persistence, then every single celebrity and person of fame would just plunk down the cash to "Lawyer up" and get the case dismissed. Yet, almost every day, we hear of someone famous getting charged with DUI, and, sometime later, you hear about them being placed on Probation.

Why?

Because not every DUI charge can be easily dismissed.

Consider, for a moment, the garden-variety DUI charge. The Officer will claim to have observed the Driver swerve or in some way drive erratically. Sometimes, these observations are made (or at least claimed) after a cell-phone tip. When the person is pulled over, the Officer notes all the usual characteristics of DUI driving. Fast-forwarding a bit, after being taken to the Police Station, the end result is usually a breathalyzer (BAC) score of over, if not well over, the legal limit of .08.

Continue reading "Michigan DUI - Understanding and Challenging Breathalyzer Results" »

Bookmark and Share
July 15, 2011

Michigan Driver's License Restoration - The Most Important Part of the Appeal - Part 2

In part 1 of this article, we began examining the legal issues in a Driver's License Restoration Appeal, and saw how many of the issues specified in the Rule governing the Appeals actually folded into 2 (and sometimes 3) simpler issues. From there, we narrowed the scope of our review down to that one issue that is really at the core of any License Appeal, that the person's alcohol problem "is likely to remain under control."

Here, we'll put this issue under the microscope and try to show how a person proves that their alcohol problem "is likely to remain under control."

MicroMan.jpgAt the Hearing which was the subject of another article from last week, the Hearing Officer pointed out that proving abstinence is relatively easy, and there are tests, such as urine tests, and even hair follicle tests, which can substantiate claims of abstinence. He then pointed out that there is no such test to prove a person won't drink again, and that "proving" this is, at its core, more subjective than anything else.

This really cuts to the heart of a License Appeal.

How does a person prove that they won't drink again? The DAAD, after all, knows that even some of those who they have examined very closely and to whom they have granted Licenses go out and drink again. Those that come to their attention either test positive for alcohol on the mandatory ignition interlock, or pick up another DUI.

It would probably be easy for the DAAD to require 10 years of Sobriety backed up with 10 years of AA attendance. That would certainly weed out most of their trouble. The problem with that is that the law allows a person to file an Appeal 1 year after their 2nd DUI within 7 years, or 5 years after their 3rd within 10 years. On top of that, the DAAD Rules only require 1 year of abstinence, at most.

So what does it take for a person who has DUI's spanning 3 or 5 or 7 years to prove that, after 1 year of abstinence, they really are a safe bet to NOT drink again?

Continue reading "Michigan Driver's License Restoration - The Most Important Part of the Appeal - Part 2" »

Bookmark and Share
July 11, 2011

Michigan Driver's License Restoration - The Most Important Part of the Appeal - Part 1

In a Driver's License Restoration article I put up last week, I wrote about representing a Client who had previously won back his License, only to lose it again for another DUI. As I thought back on the Hearing itself, several observations made by the Hearing Officer presented themselves as the inspiration for this article.

Within the body of my License Restoration articles, I have covered this subject from every angle possible. This article will be a new twist on a familiar aspect of winning a License Appeal. Here, we'll focus on the core issue in any License Appeal, that the person's alcohol problem is "likely to remain under control." This will be an in-depth and long article, and, accordingly, will be broken into 2 parts.

car-keys4.jpgTo set things up, let's take a look at what needs to be proven to win a License case. The law governing License Appeals are Administrative Rules, and the one setting forth the legal issues and standard of proof in any License Appeal case is set out in what is known as "Rule 13," reprinted below in relevant part:

(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:

(i) That the petitioner's alcohol or substance abuse problems, if any, are under control and likely to remain under control.
(ii) That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.
(iii) That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk.
(iv) That the petitioner has the ability and motivation to drive safely and within the law.
(v) Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.

Now, before anyone rolls their eyes or runs off in panic, all of this can be boiled down to 2 or 3 rather simple things.

First, it is important to note that the Rule directs the Hearing Officer to NOT issue a License unless the Petitioner proves their case by "Clear and Convincing Evidence." This means that, unlike just about every other law out there, this one is written in the negative. For all the discussion we could have about this, it more or less boils down to the Hearing Officer being directed to find a reason or reasons to NOT grant a License, and not the other way around.

Continue reading "Michigan Driver's License Restoration - The Most Important Part of the Appeal - Part 1" »

Bookmark and Share
July 8, 2011

DUI in the Detroit Area - Is it a 2nd Offense, or not?

A fairly common question that arises in my DUI Practice is whether a Client's prior DUI occurred more or less than 7 years before the current case for which I am being hired. This is important, because a 2nd DUI within 7 years is treated as a 2nd Offense, whereas if the DUI occurs even 1 day past the 7-year mark, it is treated, by law, as a 1st Offense.

The consequences of a 2nd DUI within 7 years are substantial, at least when compared to those imposed in a 1st Offense case. While everyone's first concern is, understandably, to stay out of Jail, as a Lawyer for whom a substantial part of his Practice is Driver's License Restoration Cases, I tend to look a little deeper and worry about long-term consequences, as well.

scotch2.jpgIn that regard, the DUI consequences to Driver's License is perfectly clear: If a person is convicted (meaning they are found guilty of, or otherwise plead guilty to) 2 alcohol-related Offenses within a 7-year Period, their License will be Revoked. Technically speaking, that Revocation is for life. Although they become eligible to file for a License Appeal after 1 year has passed, if they do not file, and win, and no matter if 50 years go by, they cannot ever simply go to the Secretary of State and "get" a License. They must file for and win a License Appeal, first.

This becomes even more troublesome when you add in that the Secretary of State DOES NOT grant a License back to a person who is on Probation. In order to win a License Appeal, the Secretary of State requires a person to prove a period of voluntary abstinence, meaning a period of Sobriety where they were NOT subject to any legal or punitive consequences for drinking. This means that even if a person is not tested for alcohol, the State will deem any period of time that they were on Probation as NOT a demonstrable period of voluntary sobriety.

When you factor in that most Probationary Sentences in 2nd Offense cases are for 2 years (although it can sometimes be limited to just 1 year, particularly in Macomb and certain Wayne County courts), this means a person will be without a License for at least 2 ½ to 3 years. To me, that's a huge consequence, and perhaps the biggest (and certainly the longest lasting and most expensive) of them all.

The best way for me to determine if a person has had a prior DUI within 7 years, unless the Client is absolutely sure of the dates, is to review their Driving Record. In another blog article, I described how a person goes about obtaining their Driving Record for a License Appeal, but the same process applies for any reason a person may want to examine it, or have their Lawyer look it over.

Continue reading "DUI in the Detroit Area - Is it a 2nd Offense, or not? " »

Bookmark and Share
July 4, 2011

Michigan Driver's License Restoration - Winning Back Your License a 2nd Time

[Author's note - On July 13, 2011, we received notice that the DAAD Approved a License for the Client mentioned in this article, meaning we won his Appeal.]

In my Practice as a Driver's License Restoration Lawyer, I have seen just about every kind of case there is. In the Driver's License Restoration section of this blog, I have tried to cover all aspects of this subject. One kind of case that comes up from time to time, and which I handled last week, involves a situation where someone has previously won their License back, only to lose it again because they thereafter picked up another DUI. Admittedly, this doesn't happen too often, but it does occur frequently enough for me to have to watch out for it.

While every case is truly unique, it is paramount for me, as a License Restoration Lawyer, to look deeply at the facts surrounding a License Client's "slip" (aka Relapse) that resulted in this predicament. In that regard, there are certain similarities in all of these cases that can prove enlightening.

Relapse1.jpgIn several other articles, I have pointed out that I am only interested in representing someone in a License Appeal who is really and truly Sober. I think there is something that simply "rings true" about someone who has made the decision to permanently give up drinking, remain alcohol-free and live Sober. This is equally true whether or not the person is involved in AA, never went to AA, or just no longer attends AA.

The problem, of course, is that the State will basically say "you convinced us once before that you were sober, that you 'got it,' and that you were committed to remaining sober. We misjudged, gave you a License, and you not only drank again, but you drank and drove. So how can we begin to believe that this time, you really 'get it,' and won't do the same thing all over again?"

This is a tough question. At first blush, it seems that about the only thing a person can do is to emphatically profess the sincerity of their commitment to remain sober.

In a way, that's true, but there is more to it than that.

In a License Appeal I handled last week, my Client, when asked that general question by the Hearing Officer, began to explain that at the time of his prior Hearing, he certainly had made all of the "external" changes anyone might as they try to quit drinking. Those changes included things like going to meetings, keeping alcohol out of his home, and hanging around with non-drinkers (at least initially).

Continue reading "Michigan Driver's License Restoration - Winning Back Your License a 2nd Time" »

Bookmark and Share
July 1, 2011

Driver's License Restoration in Michigan - How the Case is Actually Proven

The Driver's License Restoration process is just that: a process. I have covered pretty much every step of that process within the various articles of the Driver's License Restoration section of this blog. Equally important as each, or any, of the steps in a License Appeal is how the case is proven. By "how," I mean the legal "standard of proof" that must be met in order to win.

Think about this for a moment: When you hear the phrase "win a License Appeal," what comes to mind? Winning, of course, but what else? Doing enough to win, right? Proving whatever it is that needs to be proven. But exactly what does that mean?

scales-of-justice2.jpgIn a Driver's License Restoration Appeal, the standard of proof that must be met for a person to actually win is called "clear and convincing evidence." While this sounds complicated, it is really rather straightforward, and can be best understood by seeing how it falls between the standard of proof required to win a lawsuit and that required to convict someone of a crime.

Now, imagine those famous scales of Justice. Pretty much everyone understands that if one person is suing another, in order to win the lawsuit, the person doing the suing must "tip the scales." This legal standard of proof is called "preponderance of the evidence," and is often described as "50.01% to 49.99%"

Likewise, we generally understand that, in a Criminal case, the Prosecutor has to prove a person's guilt "beyond a reasonable doubt." That means the scales tilt as far down on one side as they'll go, sending the opposite site as high up as it will go. "Beyond a reasonable doubt" is a much higher standard of proof than "preponderance of the evidence."

Where does "clear and convincing evidence" fit in? It almost sounds like it would fit nicely about halfway between "preponderance of the evidence" and "beyond a reasonable doubt," doesn't it? And while that's not exactly accurate, it isn't far off the mark, either.

Continue reading "Driver's License Restoration in Michigan - How the Case is Actually Proven" »

Bookmark and Share