September 2011 Archives

September 30, 2011

Simplifying a Michigan License Appeal and Understanding DAAD Rule 13 - Part 1

As part of my Driver's License Restoration Practice, I have tried, within the License Restoration section of this blog, to explain every aspect and facet of the License Appeal process. Many of those articles examine the varying degrees of complexity involved in a License Appeal, and try to boil these issues down to their more manageable, understandable elements.

Sometimes, what seems simple is not. This article, however, will take the opposite approach, and will focus in on a pair of issues that at first glance seem complex and difficult, yet in reality are rather quite simple. In other words, I hope to show how what may at first seem like some monstrously confusing and difficult passages of legal mumbo-jumbo can actually be reduced to a very simple, easy to understand concept.

easy-button1.jpgTo be clear, the two issues with which we are concerned are numbers 2 (ii) and 3 (iii) under Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) Rule 13, the rule that governs License Appeals. For reference, here is the relevant part of Rule 13, in all of its "legalese" glory:

(1) With respect to an appeal hearing that involves a review of a determination of the department which results in a denial or revocation under section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act, all of the following provisions apply:
(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 to 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.

The whole point of this article is going to be to show how issues 2 (ii) and 3 (iii) "fold into" issue number 1 (i), and require no separate evidence or proof. In other words, we are going to demonstrate that, if a person satisfactorily proves issue number 1 (i), they have likewise and simultaneously proven issues number 2 (ii) and 3 (iii). No further proof is necessary beyond that made for the first issue, and issues number 2 (ii) and 3 (iii) can pretty much be safely ignored. To clarify, within Rule 13 itself, issues number 1 (i), 2 (ii), and 3 (iii) are identified as (i), (ii), and (iii), respectively. To make things easier, we'll just refer to them as issues number 1, 2, and 3 wherever possible.

Continue reading "Simplifying a Michigan License Appeal and Understanding DAAD Rule 13 - Part 1" »

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September 26, 2011

Michigan Driver's License Appeals and the Geographic Cure for an Alcohol Problem

Within my Driver's License Restoration Practice, about ½ of my Clients have either moved out of state, or live pretty far from the southeast Detroit-area where my Office is located. Wherever they now live, many of my Clients have moved away from where they lived at the time of their last DUI. Sometimes they move for work, other times for different reasons, but the point is that they no longer live in what could be considered their "old stomping ground."

This is important, because very often, the move to somewhere different helps support what's known as a "Sober lifestyle." As I have noted in other articles in the Driver's License Restoration section of this blog, Sobriety is a first requirement in order to win a License Appeal. The whole process of getting and staying Sober is really at the heart of a Driver's License Appeal.

Moving Van1.pngYet it is also well known that there is no such thing as a "geographic cure" for an alcohol or substance abuse problem.

In this article, we'll examine how, in a License Appeal, a move to somewhere new, while not any kind of "cure," in and of itself, can be helpful and persuasive evidence of a person's establishing and maintaining a Sober lifestyle.

Anyone who has been through any kind of IOP (Intensive Outpatient Program) Counseling, or who has attended AA for any length of time has heard the general proposition that there is no such thing as "geographic cure" for an alcohol problem. This really means that a person cannot just move away from where they drink, or from their drinking friends, and do nothing more than expect to get better. The urge to drink will soon be too strong to resist, and without any other kind of plan, that person will, sooner or later, wind up back in the saddle, only somewhere different.

And while this generalization may be true, it tends to be at odds with the way the Michigan Secretary of State's Driver Appeal and Assessment Division (DAAD) sees a person's Recovery behavior. The State does, in a very real way, look at all of the changes a person has made as part of their commitment to not drink again, and moving away from bad influences, or, as the AA people say, from "wet faces and wet places," can be a helpful part of that.

Continue reading "Michigan Driver's License Appeals and the Geographic Cure for an Alcohol Problem" »

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September 23, 2011

Dealing with a Suspended License (DWLS) Charge in Macomb, Oakland or Wayne County

Within my Practice as a Criminal and DUI Lawyer, I handle Driving While License Suspended (DWLS) charges quite frequently. DWLS is perhaps one of, if not the single most common "Criminal" charges to go through the Court system. This article will be about the run-of-the-mill, Joe-basic DWLS charge.

In previous blog articles, I have explained the various categories of DWLS charges, from 1st to 2nd (or subsequent) Offense. I have also examined how DWLS is different from Driving While License Revoked (DWLR), even though the two Offenses carry essentially the same penalties, and are part of the very same provision of the Law.

MSP1.jpgHere, we're going to concentrate on the everyday, garden-variety DWLS charge. This is the kind of case that shows up regularly in my Office, and in Lawyer's Offices everywhere. To be clear, much of what we're going to examine applies to 2nd Offenses and to DWLR charges, but to keep this article down to manageable size, we'll restrict our focus to those cases in which the charge is DWLS.

Note that I did not use the term "DWLS 1st Offense." A person may have had a prior DWLS charge, or even a few. That, however, does not mean that they are always subsequently charged with a 2nd Offense. In fact, in many cases, a person with 1 or more prior cases winds up simply charged with "Driving While License Suspended (DWLS)."

And that's as good a place as any to jump off and ask why that's the case? Why are there so many DWLS cases in the first place, and why do so many people with prior Offenses NOT get charged with a 2nd or subsequent Offense?

Not surprisingly, the answer boils down to one word: Money. DWLS charges are money-makers for municipalities. In fact, if you want to be a bit cynical about it, they're pure money. While some have (not incorrectly) called DUI cases "cash cows," DWLS cases might comparatively be called "pure profit pigs."

Continue reading "Dealing with a Suspended License (DWLS) Charge in Macomb, Oakland or Wayne County" »

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September 19, 2011

How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2

In part 1 of this article, we began examining the role of the PSI in a Criminal case. We learned that the PSI, or Pre-Sentence Investigation, is a comprehensive process that ultimately results in written Sentencing Recommendation being made to the Judge presiding in any given case. We also learned that the PSI Recommendation could be thought of as a "blueprint" for what the Sentence will be, as almost every Judge out there follows that Recommendation to the letter, or extremely close to it.

Here, in part 2, we'll pick up where we left off, beginning with a look at how the Probation Officer interviewing someone is likely to perceive that person. We'll continue by examining why, in a DUI case, for example, how well or poorly a person scores on the legally required alcohol assessment test impacts what happens to them at Sentencing.

Interviewing2.jpgFirst, bear in mind that everyone showing up for a PSI has been convicted of a crime. Technically speaking, Probation only deals with convicted Criminals. This may seem too harsh or strong a label for someone who has, for example, received their first DUI, and it may not sit well with them, but it does not change the reality that no one is required to meet with a Probation Officer for singing too much in the church choir. A person needs to understand how they are perceived by Probation Officer who will be interviewing them, if they want to positively influence that Probation Officer's conclusions about them.

And make no mistake about it, there is a whole psychological profile to Probation Officers. They are an interesting group, and, whatever else, really are the single most important person in a Criminal case, in that they write the Recommendation that will, in almost every case, be followed by the Judge. Knowing how to deal with them, and understanding things from their side of the desk is an important component in producing a better Sentence.

An example of what not to do in a PSI applies to those first-time Offenders, like the 1st Offense DUI person we mentioned above. Most middle-class DUI Offenders have a hard time thinking of themselves as "Criminals." DUI is, after all, more a crime of bad judgment more than anything else. Almost anyone facing a DUI would never think of robbing or harming someone, or stealing anything. So these individuals, who lack any kind of criminal mindset, are typically horrified at the prospect of being considered, much less treated, as a "Criminal."

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2" »

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September 16, 2011

How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1

When a person is facing a Criminal charge, they usually have lots of questions. First amongst them, however, is some version of "what's going to happen to me?" In this article we'll take a step back, and instead of trying to answer the question "what's going to happen," we'll examine why whatever does happen, in fact happens. In other words, we'll try to find out why a particular Sentence is handed down in a Criminal case.

Having been a Criminal Lawyer for over 20 years, I certainly have learned a lot. And while I hated to be on the receiving end of these comparisons 15 or so years ago, the reality is that I know a lot more now than I did then. I have learned things that go way beyond knowledge of the Law itself. Often, what is most important in predicting the outcome of any specific case has more to do with where the case is pending, or the identity of the Judge to whom it has been assigned, rather than the rule of Law itself.

Spotlight copy.jpgThis is why, when we speak of Doctors and Lawyers and other professionals who have around 20 years experience, we say they're "hitting their stride." This is also why you'll never see a rich and famous person being represented by a newbie Lawyer. Think of any celebrity Criminal case; the Lawyer who stands in front of the microphones is always a seasoned veteran.

Yet for all that, I began to figure out certain truths about why cases turned out the way they did pretty early on in my career. Here's where anyone who has ever had a prior Criminal case will instinctively understand what I'm about to say, while everyone else will simply have to believe the logic of it:

What happens, meaning the Sentence that a person receives, in any case, is always either identical to, or nearly identical to the Sentencing recommendation sent to the Judge by the Court's Probation Department.

This bears some explanation.

In all Felony cases, and in many Misdemeanor cases (such as DUI), the Law requires that, prior to a person being Sentenced by the Judge, they go to the Court's Probation Department for an evaluation and interview, called a Pre-Sentence Investigation (PSI), and that the Probation Department, as a result of that process, generate a written Report and Sentencing Recommendation to be used by the Judge in Sentencing the person.

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1" »

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September 12, 2011

Possession of Marijuana or Other Drugs and the Mandatory Michigan Driver's License Suspension

There is a consequence to all Drug Possession cases that is often overlooked, if not unknown, by many people facing such a Charge. This is the mandatory Driver's License Suspension that MUST be imposed in any case where a person has been convicted of a Drug Crime. Strangely enough, this mandatory Suspension is the same, whether or not the person was charged with Possession of Marijuana, or Possession of Heroin, or any substance in-between, either Felony or Misdemeanor.

The reason this mandatory Suspension ever came into existence is another fine example of what happens when Lansing acts. As I have said in previous articles, I try to keep politics out of this blog, but I cannot escape the truth that pretty much EVERY LAW that is enacted in our state either makes life more difficult, or expensive.

SmokeJail.jpgHonestly, when is the last time a Law was passed that made your life any better? The smoking ban is, in my view, the only exception to this proposition, but that really depends on whether you smoke, or not. I don't, so I like the change.

Thus, a number of years ago, our state legislature decided that it didn't like the idea that most people who faced a Drug Possession charge didn't go to jail. The feeling was that simply being placed on Probation wasn't enough consequence, so it was decided that a provision would be written into the Law that anyone convicted of any Drug Possession charge who WAS NOT Sentenced to Jail would thereby have his or her Driver's License Suspended for 6 months, in any 1st Offense case, and for 1 year if the person had a prior Drug Possession conviction. The Court in which such a conviction took place became legally obligated to impose the Suspension, and would, of Course, have to report the matter to the Secretary of State as a "Drug Crime."

Although there is a corresponding License Sanction in Drug Delivery cases, we'll keep our focus on the far more common Possession charges.

To soften the "sting" of leaving so many people without a way to get to work, the Legislature added a provision to the Law that allows the Judge handling the Possession case to grant the person a Restricted License. In 1st Offense cases, this can be done after the person has suffered through 30 days of the Suspension. In 2nd Offense cases, the Judge can grant that Restricted License after the person has gone 60 days with a fully Suspended License. This has not worked out so well, however.

Continue reading "Possession of Marijuana or Other Drugs and the Mandatory Michigan Driver's License Suspension" »

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September 9, 2011

Driver's License Restoration - Michigan Issues only, Please...

Almost all of the articles in the Driver's License Restoration section of my blog examine some aspect or aspects of the License Appeal process. It seems that lately, however, and perhaps because of the sheer number of those articles, some people are less inclined to read through enough of them before calling my Office with any License-related problem. As a result, I thought that perhaps I should outline the kind of cases that fall within the scope of what I do, and those fall outside.

To begin with, ALL of the cases I handle in my License Restoration Practice involve a person having had their MICHIGAN Driver's License Revoked for multiple DUI's, or some combination of DUI's and/or Substance Abuse-related convictions. Many of my Clients now live outside of Michigan, but the central difficulty they have is that their MICHIGAN License has been Revoked. In some cases, they may have, for a time, been able to get a valid License elsewhere, but at some point, they butt up against the Michigan Revocation while trying to renew or get a License in another state. They are told, quite correctly, that they'll need to clear up Michigan's "hold" on their License in order to get a valid License in that other state.

Michigan Red1.jpgI point this out because any number of people call my Office about a License problem NOT related to Michigan. As a duly licensed Michigan Lawyer, I can only advise, much less represent anyone, as it relates to matters of Michigan Law. This means the core issue in any License case I handle will be a Michigan Driver's License Revocation, even if the person no longer lives here, and simply wants to obtain a Driver's License in another state. I've had people call from other states who have never had a Michigan License and whose legal issues are entirely governed by the laws of another state. I cannot help in those cases. I can only help when there is a Michigan License issue involved.

Another question that comes up frequently is whether or not I can advise someone on how to go about the License Appeal process on their own. Under Michigan Law, a person can file for what's called an Administrative Appeal, which is basically a request for a Michigan License or Clearance by mail. I DO NOT handle such cases, nor do I advise anyone regarding them. There are two reasons for this:

First, and perhaps most importantly, Administrative Appeals are sure losers. According to the Michigan Secretary of State, in the fiscal year 2010, it received 875 Administrative License Appeals. Of those, 650 (74%) were DENIED. That's a 3 out of 4 chance of LOSING!

By contrast, in the year 2010, I handled over 70 live, in-person Hearings, and won each and every one, giving me a 100% win rate. Beyond that, I guarantee that I will win any Appeal I accept, or the next is free.

Continue reading "Driver's License Restoration - Michigan Issues only, Please..." »

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September 5, 2011

Another Simple, Clear Danger in a "Do-it-Yourself" (Administrative) Michigan Driver's License Appeal

While it might be easy to understand my job as a Driver's License Restoration Lawyer as making sure a License Appeal can and does go forward, there is another aspect to my job that's far less glamorous than that. Sometimes, I have to be the "heavy" who "pulls the plug."

This means that in some cases, I have to tell the Client that we have to start all over again, or re-do this or that part of our case, before we file the actual Appeal. And while no one wants to hear that, my Clients do understand that's what they're paying me for; to make sure that a case doesn't go forward with a fatal defect, or some flaw that can turn into that.

danger3.jpgOne situation that has reared its head, not surprisingly, occurs when I'm hired after a person has previously tried on their own to win their License back, and lost. Usually, the Client will come in with only that previous Order of Denial from the Secretary of State. In and of itself, that Order will tell me exactly what went wrong, and what needs to be fixed in order to win. But in some cases, there is more. Let me explain:

While I don't handle any part of Administrative Appeals, as I feel strongly that there absolutely must be a live, in-person (NOT VIDEO) Hearing, any number of my Clients are people who have tried that route before. The fact that they're now my Clients means they found out the hard way that such Administrative Appeals are generally losing propositions.

Anyway, as part of the paperwork they will have submitted with that prior Administrative Appeal, they will have completed an Affidavit. An Affidavit is a sworn document. It carries the weight of sworn testimony, and is generally sworn to under penalty of perjury. It really is testimony, except it's in writing.

Within that Affidavit, the person will have indicated the last time they consumed any alcohol whatsoever. In the world of Recovery, this is called a "Sobriety Date." People in AA sometimes call it their "Birthday." It is, by all accounts, an important date, kind of like a wedding anniversary.

Continue reading "Another Simple, Clear Danger in a "Do-it-Yourself" (Administrative) Michigan Driver's License Appeal" »

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September 2, 2011

The Importance of Being "Prepped" for A Michigan Driver's License Restoration Hearing

A significant percentage of my Driver's License Restoration Practice involves representing Clients who have either moved out of the State of Michigan, or those who live rather far away from both my Office and the Livonia branch of the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD), where I have all my Appeal Hearings conducted. A recent experience I had made clear just how critical and important the "prep session" that I have with all of my Clients, a day or two before their actual License Hearing, really is.

Ann, my Senior Assistant, had correctly told me that this particular Client, who lives on the west coast, would be flying in to Michigan the day before his Hearing. As she confirmed his attendance at the Hearing, she also, as a matter of course, verified his contact phone number so that I could call him to do our "prep session." This "prep session" takes place a day or two before the Client's actual hearing, and lasts anywhere from an hour to an hour and a half. I often do it over the phone, in the evening, when there are no outside distractions or anything else than can interrupt me.

panic-button5.jpgFor whatever reason, I had misheard Ann, and thought my Client was coming in a day or two before his Hearing.

Having assumed my Client was already in town, I tried to call him in the early afternoon the day before his Hearing, as I was going to have an hour's drive back to the Office from Court, and had already arranged with the Office to not interrupt me.

I called my Client, and got his voicemail. No big deal, I thought. I left him a message and indicated I'd call again.

On the drive home, I called again, and got the same voicemail. Again, I left a message, thinking that maybe he was busy catching up with family and friends.

After dinner, I called again. Got voicemail again. By this time, I was becoming a bit concerned.

A little while later, I placed another call, and, you guessed it, got his voicemail.

An hour after that, I placed another call, and upon getting his voicemail, I could not hide the concern in my voice. I told him I was worried that he left his phone back at home, and that we wouldn't be able to go over everything before the next day's Hearing. I envisioned his cell phone, sitting on his dresser, buzzing away....

Continue reading "The Importance of Being "Prepped" for A Michigan Driver's License Restoration Hearing" »

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