August 2011 Archives

August 29, 2011

Michigan Drivers' License Restoration - How a Denial can Become a Win

In my role as a Driver's License Restoration Lawyer, I read the decisions of the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) almost daily. Fortunately, when reading those Orders for the License Appeals that I handle, I'm always reading a winning decision. Having won 181 of the last 183 cases I've handled, I can honestly say that I have almost no experience reading a Denial in any of my cases. However, many of my Clients are people who have already tried on their own to win back a License, or used some Lawyer who claims to "do" License Appeals, and lost. When they come in, part of the paperwork they bring is any previous Denial Order.

In this article, we'll look at why a previous Order of Denial is so important in the larger job of preparing for a subsequent License Appeal that will win.

dishonest scales3.jpgFrom the outside, someone might just think that you file a License Appeal, and either win or lose. Like everything else about the whole License Restoration process, it's far more complicated than that.

To fully understand what's involved, we need to take a few steps back from the final result of the process, and look at what goes into it. In my various other articles about Driver's License Restoration, I have covered pretty much every aspect of the License Appeal process in detail. The focus of our examination here both governs and precedes even the very first step in that process. Let me explain:

In order to win a License Appeal, a person must prove certain things. Those "things" are outlined in the DAAD's Rule 13, which begins as follows:

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 point of this whole detour is to point out how the Rule is written in the negative, and that the DAAD is required to NOT issue a License unless the person proves the relevant things by "Clear and Convincing Evidence."

"Clear and Convincing Evidence" is a kind of hybrid standard of proof that falls short of what's necessary to convict someone of a crime under the "Proof beyond a Reasonable Doubt" benchmark, but well beyond what it takes to win a Small Claims matter, where the standard of proof is a "Preponderance of the Evidence." One way to think of it is that "Preponderance of the Evidence" requires that the scales of justice be tipped just over the 50% mark, like 50.01%. "Proof Beyond a Reasonable Doubt might be likened to tipping the scales past the 90% mark, while "Clear and Convincing Evidence" would amount to tipping the scales past the 80% mark.

Continue reading "Michigan Drivers' License Restoration - How a Denial can Become a Win" »

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August 26, 2011

Michigan Driver's License Restoration Lawyer - The Best Job in the World

Almost every article in the Driver's License Restoration section of this blog examines and explains some part of the License Appeal process, or takes an overview-type look at it. This article will be different. I want to explain why I like this field so much, why I have such passion about it, and how I can come back, week after week, with enough enthusiasm to write yet another License Restoration article.

The first thing I can point out is that there is much happiness in success. I have won 181 of the last 183 License Appeals I have handled in the last nearly two and a half years. In 2010, I won 100% of the cases I filed, and since about June of 2009, having won 181 of the last 183 cases I accepted, my overall win rate is 98.9%. I'm so sure that I'll be successful in any Appeal I take that I guarantee I'll win the first time, or the next is free.

Heart2.gifBut winning isn't everything.

I certainly would have no such job satisfaction if I was defending murderers and rapists and helping them go free. Nor would I derive any pleasure in representing some big company that steamrolled all over the rights of some average person, and managed to help it escape liability for its actions.

As I said, winning isn't everything.

License Restoration Clients, or at least the people who become my Clients, are people on the upswing in their lives. They're people who have not only had a deep insight into themselves, but who have had the fortitude and drive to make a significant lifestyle change. They are people who now live alcohol-free. And without exception, their lives are better now that they were at the time of their last DUI.

On any number of occasions, I have represented someone on their 2nd or 3rd (or 4th or 7th) DUI, and observed them in denial, blaming the whole situation on some outside, external factor or factors in their life. They don't take responsibility for their own actions, and seem, at least at that point, unready and unwilling to make the changes necessary to prevent it form happening again.

Imagine how nice it is to meet them a few years later, after they've gotten Sober, and hear them talk about the person they used to be in the past tense. It is night and day to stand next to someone facing a Felony DUI who thinks the whole system is out to get them, and then to stand next to that person down the road, when they have the insight to see that it was them that was the problem, and not anyone or anything else.

Continue reading "Michigan Driver's License Restoration Lawyer - The Best Job in the World" »

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August 22, 2011

The Driver's License Restoration Process in Michigan - Part 2

In part 1 of this article, we began examining the overall process of Driver's License Restoration, beginning with determining if a person is both "legally" and "really" eligible. We then examined what can rather accurately be described as very foundation of a License Appeal, the Substance Abuse Evaluation.

We'll pick up with the other component that must be completed and submitted along with the Request for Hearing and the Substance Abuse Evaluation, the Letters of Support.

processpie2.jpgIf the Evaluation is the foundation of a License Appeal, then the Letters of Support are its walls. In my Office, I provide sample copies of Letters to my Clients so that they can get an idea of what the Letters are supposed to say, and, as important, what they shouldn't get into. Quite frankly, this isn't nearly as much work as it sounds, because I pretty much tell the Client to get something, anything, down on paper, and send it to me so that I can edit it. Normally, instead of bothering 3 to 6 people to actually write a first draft of a letter, only to have me red-pen all kinds of changes to it so that they can thereafter re-do it, I have the Client write the first draft so that once it has been edited properly, it can be presented to the person who will be signing it and they simply type it up, sign it, and give it back.

After the Letters have been finalized and the Evaluation double-checked and cleared, everything is filed in Lansing. It takes about 4 weeks to get Notice of the Hearing date. The actual Hearing itself occurs abut 2 weeks after that, meaning that it takes about 6 weeks from the date the paperwork is filed until the day someone is sitting in a Hearing Room. I have all of my cases set for a live Hearing in the Livonia Office of the DAAD. Even for those Clients who live out of state, or live in Michigan but far away for the Metro-Detroit area, I have all of my cases heard in the Livonia Office. For what it's worth, there are 3 places where the Hearings are conducted: Livonia, Lansing and Grand Rapids. Throughout the state there are plenty of Secretary of State Branch Offices that will host a "video Hearing" where a Hearing Officer in one of these 3 locations will conduct the proceeding via closed-circuit TV, but I firmly believe in doing a live, in-person Hearing, and then only in front of those Hearing Officers with whom I have years and years of experience.

Because my Office is located in Mt. Clemens, I have the ability to have some of my Hearings done by video just down the road at the Secretary of State Branch Office on Metro Parkway (16 Mile Rd.) and Gratiot. This is only about 4 minutes from my Office, yet I would never even consider it, choosing instead to drive for about an hour to Livonia to have the case heard in person. I certainly don't do this because I like driving so much; I do it because I know it's better, and the results bear that out.

Continue reading "The Driver's License Restoration Process in Michigan - Part 2" »

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August 19, 2011

The Driver's License Restoration Process in Michigan - Part 1

The process of winning back a Michigan Driver's License after a Revocation for multiple DUI's is a succession of steps. Each step is not only important in its own right, but a deficiency at any point in this process stops a person from going forward, and leaves them stranded right where they had the problem. In the Driver's License Restoration section of this blog, I have covered just about every aspect of every step in the License Restoration process. In this article we'll take a step back and re-examine the process more as a whole, rather than by individual parts.

At its simplest, the process starts by filing the Appeal, and ends with a decision by the Secretary of State's Driver Assessment and Appeal Division (DAAD). If you think about some of the board games you might have played as a youngster, whatever the rules, the goal was to move from the starting space to the ending space. Getting there, however, was fraught with all kinds of challenges, including missed turns, or a spin or a roll that sent you backward, rather than forward. The License Appeal process can generally be thought of the same way.

process1.jpgIn order to even get in the game, a person must be eligible to file a License Appeal. This means one of two things: If a person lost their License for 2 DUI's within 7 years, then they will have to wait a full year before their eligible to Appeal. In practice, this means more like 2 years. If a person was Revoked for 3 DUI's within 10 years, then they have to wait at least 5 years before they can file an Appeal.

While this sounds clear and simple enough, there are loads of things that can mess up the works. As a Driver's License Restoration Lawyer who now handles close to 100 License Appeals per year, I have seen just about every situation one could imagine, from the normal to the ultra bizarre. In the usual case, a person will tough out the period of mandatory Revocation and then be eligible to file the Appeal. However, things can go wrong and push that eligibility date farther into the future. These "things" can range from the Court not promptly or properly reporting the last conviction to the Secretary of State to a person's getting caught driving while the License is Revoked. Whatever the background, a person must wait until their eligibility date in order to file a License Appeal.

Being legally eligible doesn't make a person "really" eligible, however. In order to be "really" eligible to start the Driver's License Restoration process, a person must also have made the commitment to get and stay Sober. Sobriety is a must. In other articles I have talked about Sobriety as a perquisite to a License Appeal. And while a person must truly be Sober, and committed to remain Sober in order to really be eligible to win back their License, the definition of Sobriety is much broader than some believe.

Continue reading "The Driver's License Restoration Process in Michigan - Part 1" »

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August 15, 2011

DUI in Michigan -Getting 2 DUI Cases "Knocked Out" on the Same Day

If getting a DUI case dismissed outright is like winning the Powerball Lottery, then having a DUI case knocked down to a non-alcohol related Offense is like hitting the Jackpot in a raffle. As a busy DUI Lawyer, these victories are the things that become the highlights of my day-to-day Practice. I have pointed out, in many of the nearly 70 Drunk Driving articles I have published, that these kinds of outcomes are far more the exception, rather than the rule. Any DUI Lawyer will handle quite a few "garden-variety" DUI's before he or she gets one that can be knocked out, or knocked down.

This might explain why I'm so excited about a day in Court, the week before last, when, out of the 3 DUI cases on my schedule, 2 of them were knocked down to non-alcohol related Offenses. What's more, it happened in 2 different Courts!

Knockout.jpgObtaining these breaks is not, however, just a matter of luck. It requires a detailed analysis and review of the evidence by an experienced DUI Lawyer. Sure, there is an element of luck in that there is a sufficient defect in the evidence for any particular case in the first place, but finding that defect requires looking for it, first. In a way, this parallels the old saying "you won't know if you don't ask." A Lawyer wouldn't find a problem with the evidence if he or she didn't first evaluate that evidence with a careful and critical eye.

Beyond the benefit to the Client in avoiding the whole DUI charge, and all the negative consequences that go with it, these "jackpots" refresh the Lawyer, as well. Imagine if you were mining for gold, digging through dirt, and year after year you never found any. How much enthusiasm would you be able to sustain as you continued?

In each of the two cases referenced above, the "defect" in the evidence was not something pointed out by the Prosecutor. Nor was the defect obvious. Does this mean the Prosecutor simply hadn't evaluated the case as critically as I did? I tend to think so. Prosecutors, after all, handle tons of cases, and simply don't have the time to study each one like a Defense Lawyer, whose whole focus in on that single case. Even when they do read a Police Report, it's not as if the Prosecutor is looking for a "way out."

In my first case, there was a scientific problem with the Breathalyzer evidence. It would take far too long to explain it here, but the bottom line is that I was able to point out to the Prosecutor that his case was seriously compromised, and in light of the defects in the evidence that I showed him, he had little choice but to agree.

Continue reading "DUI in Michigan -Getting 2 DUI Cases "Knocked Out" on the Same Day" »

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August 12, 2011

Michigan DUI - How Long Will it Stay on my Record?

Within my Practice as a DUI and Criminal Lawyer, I am often asked by someone facing a DUI how long it will stay on their Record, or if the can come back later and have it Expunged.

The bad news is that a DUI will stay on a person's Record forever, and it can NEVER "come off."

eraser1x.jpgA DUI, technically called an OWI (Operating While Intoxicated) is both a Criminal and Traffic Offense. A conviction for a DUI goes on both a person's Driving Record, and their Criminal Record.

Beyond that, a DUI falls under a whole different set of Laws related to a Court's obligation to report certain, specified Offenses to the Secretary of State. Part of those Laws is a provision that Criminal Traffic Offenses CANNOT be Expunged, ever. And this applies equally to any Criminal Traffic Offense, not just DUI's.

Moreover, the Law forbids the Court from taking a DUI "under advisement," or otherwise "deferring" it. This is often the answer I have to give someone who asks about the possibility of having the charge somehow deferred for a given period of time, and if they do everything they're supposed to do, having the whole thing dismissed, or reduced to a non-alcohol-related Offense.

In short, it cannot be done, except in those cases where there is a critical and substantial defect in the evidence. And those situations are few and far between.

Continue reading "Michigan DUI - How Long Will it Stay on my Record? " »

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August 8, 2011

What Happens in a Michigan Driver's License Restoration Appeal Hearing?

Of all the articles I have written about Driver's License Restoration, I have yet to really describe what happens at the actual License Appeal Hearing. This article will examine what goes on behind the closed doors of the Hearing Room.

First off, it should be pointed out that the main reason this subject is finally coming up in the 78th Restoration article I have written is because almost all of what is so important about these Appeals happens before the Hearing itself. It may sound clich├ęd, but these cases are won in the preparation. And while preparation alone can't win a License Appeal, a case cannot be salvaged if absolutely all of the evidence submitted is not up to the mark. In other words, nothing that happens at the Hearing can fix a fatal flaw in the evidence previously submitted, meaning the Substance Abuse Evaluation and the Letters of Support.

Seal 1.2.pngThe Hearing is more of an opportunity to confirm that the person portrayed in the evidence submitted is as good in real life as they seem on paper. As I tell my Clients beforehand, our preparation has been flawless, so if you can simply go in, and be that person, you'll win.

Yet for all of the preparation one can put into a License Appeal, the idea that "this is it" really hits home once the door of the Hearing Room has been closed.

I have all my cases Heard in the Livonia Office of the DAAD. This office is the default location for all Metro-Detroit residents, but as an Attorney, I can request that any Hearing, no matter where the Client is from, be scheduled there.

Hearings are set for every hour, from 9 to 11 am, and 1 to 4 pm. The Notice sent by mail will indicate the Hearing time, followed by the word "sharp." This means that a Hearing set for 10 am will be Noticed up at "10 am Sharp." There are no Hearings scheduled on the half-hour.

The Hearings do not last for more than the allotted hour, and often last far less than that. I often try to put my Clients at ease, as we prepare for their upcoming Hearing, by telling them that our time preparing will far exceed the time we actually spend in the Hearing.

At the DAAD Hearing Office, there is a window at which the Client and the Lawyer check in. If one arrives before the other, each will check in separately.

Continue reading "What Happens in a Michigan Driver's License Restoration Appeal Hearing?" »

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August 5, 2011

Michigan Driver's License Restoration - A Very Important Question in Some Appeals

Within the body of my Driver's License Restoration articles, I have covered the most important and relevant legal issues and how they're managed as part of a License Appeal. One issue particular issue within my License Restoration Practice, called the "Seldom Occurring Issue" on my website, has been coming up so much more often recently that it suddenly doesn't seem so "seldom" anymore. This issue is a Revoked DUI Driver's ability to win a License Appeal when they've been caught driving after having had their License Revoked for multiple DUI's.

In this article, we'll examine what happens when a person is otherwise eligible to file a License Appeal, but has gotten one or more Driving While License Suspended or Revoked charges since the time of their Revocation for their last DUI.

Getting a Ticket.jpgThe actual legal issue, as presented in DAAD Rule 13 (The Rule which governs License Appeals), reads as follows:

"That the petitioner has the ability and motivation to drive safely, and within the law."

Almost everyone, at first glance, tends to skip over the word "ability." In truth, the only "inability" to drive that I encounter is a person's lack of a Driver's License. That said, the State does make inquiry if the person has any mental health or medical conditions which would affect their physical or mental ability to drive. A person who is subject to seizures, for example, will be required to get what essentially amounts to a medical clearance before they'll be let back on the road.

However, that's not all there is to an inquiry about "ability." From the State's point of view, if a person has had their License Revoked, meaning they cannot drive at all, under any conditions, and they wind up getting caught driving anyway, then that person has a questionable ability, at best, to drive within the law. This is because, despite all the evidence they present about their Sobriety, they still have a demonstrated tendency to not follow rules.

In the real world in which I Practice, most people in this situation were driving to or from work, or to pick the kids up from school, or something like that. Obviously, if they were cited for another DUI, then the driving itself wouldn't be at issue. And those who do drive, despite a Revocation, do so with a heavy heart, and an eye on the rear-view mirror, because they know that if they get pulled over, it will NOT be good.

And of course, some people do get pulled over.

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August 1, 2011

Indecent Exposure Charges in Michigan

In recent months, I have seen a noticeable increase in the number of Indecent Exposure cases coming into my Practice. Fair warning here: this article is going to use some terms that are not be suitable for children as we take a look at a couple of common themes involved in many of these cases.

In my 20-plus years of handling cases like this, I have come to fully understand how embarrassing, humiliating and frightening this kind of charge is to the person facing it. Likewise, I'm keenly aware that it is important for me to ease my Clients' mind and help them move past those feelings, as we begin to develop a strategy to handle the case, and make things better.

flasher2.gifThere are really 2 charges that fall under the umbrella of Indecent Exposure:

The first, and most common, is a Misdemeanor simply called "Indecent Exposure" which carries a maximum penalty of up to 93 days in Jail. It is sometimes linked or written as "Disorderly Person/Indecent Exposure."

The second, and more serious charge is technically called "Aggravated Indecent Exposure." This is a Felony charge that carries a maximum penalty of up to 2 years in prison. Felony cases are ultimately handled in the Circuit Court for whatever County in which the case is brought.

The difference between these 2 charges is that Aggravated Indecent Exposure involves fondling of the genitalia. Interestingly, a significant percentage of cases involving such fondling are still brought as regular, Misdemeanor Indecent Exposure charges. To date none of my Clients have been upset about that decision....

The vast majority of Indecent Exposure cases involve a man being charged. Of the hundreds of such cases I have handled, I've only seen one or two involving women.

And while there are plenty of cases where some guy gets caught urinating behind a dumpster, or in an alley, quite a few Indecent Exposure cases involve masturbation. This really splits into 1 of 2 things:

Continue reading "Indecent Exposure Charges in Michigan " »

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