November 2011 Archives

November 28, 2011

The Driver's License Restoration Appeal Process in Michigan - Getting Back on the Road - Part 3

In Part 2 of this article, we examined the 2 types of License Appeals (Administrative Review or full Hearing) a person can file, depending on where they live, if they seek Restoration (or Clearance) after a Revocation for multiple DUI's.

In this third Part, we will begin examining the 2 pieces of information that must be filed when either type of Appeal is filed.

Keys2 copy.jpgIn order to begin any kind of Driver's License Restoration Appeal, a person must file at least 2 things with the Secretary of State in Lansing:

  1. A Substance Abuse Evaluation, and
  2. At least 3 Letters of Support.

In this installment, we'll look at the Substance Abuse Evaluation. In the Part 4, we'll examine the Letters of Support.

The Substance Abuse Evaluation is an actual state form that must be completed by a Substance Abuse Counselor. I have covered this topic in considerable detail on both my website, and in various articles on this blog. One could, quite literally, write a book on this subject alone. For our purposes, we can boil all the detail involved into a few, simple, or at least, simpler points.

The most important thing the Substance Abuse Evaluation provides is a Prognosis. This is the Evaluator's educated prediction about how likely the person is to remain alcohol and drug-free for the rest of his or her life. This is important because, as we noted earlier in this series, the biggest question before the DAAD is whether or nor the person's alcohol problem is likely to remain under control, which essentially means how likely (or not) a person is to remain alcohol-free for the rest of their life. If the Prognosis isn't good enough, then, legally speaking, the Appeal is already lost.

Continue reading "The Driver's License Restoration Appeal Process in Michigan - Getting Back on the Road - Part 3" »

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November 25, 2011

The Driver's License Restoration Appeal Process in Michigan - Getting Back on the Road - Part 2

In Part 1 of this article, we looked at the importance of a person's self-recognition of an alcohol problem within the context of a Drivers' License Restoration Appeal. We set out the real requirements of the governing Rule in a License Appeal, and we reviewed how those requirements must be met by "clear and convincing evidence."

In this second part, we will begin by examining the various Appeal options available to both Michigan residents, and former residents who now live out-of-state but have a Michigan "hold" on their Driving Record which prevents them from obtaining a Driver's License in another state. Then, we'll take a look at what it means to be a "Driver's License Restoration Lawyer," and I'll go over a few things I think are important to bear in mind as a person searches for the right Lawyer to handle their License Appeal.

KeysPlease2.jpgIf a person with a Revoked License is a Michigan Resident, the only way to "win back" their Michigan License is to go through the full Driver's License Restoration Appeal process. This means they will, at some point, have to appear for a Hearing, even if that hearing is done by video, via closed circuit TV (for the younger readers, this is something like Skype, but with a bad connection and an even worse webcam).

If a person now lives outside of Michigan, or is otherwise a resident of another state, they can either come back to Michigan for a full Hearing, or they can file what is essentially an Appeal by mail, called an Administrative Review, thereby avoiding the trip back to Michigan. Whichever method is used, the person, instead of seeking a License, will try to obtain a "Clearance" which will allow them to get a License in another state.

Not only do I strongly advise against Administrative Reviews (remember, out of 875 such requests received by the state in 2010, a total of 650 of them were DENIED, meaning that 75% of all such "Appeals by mail" were losers), I also firmly believe that the best way to win an Appeal is to appear for a live, and In-Person Hearing. I absolutely DO NOT believe in video Hearings, and will not do one. In fact, I have pointed out that recently, the Secretary of State has opened a video terminal about 3 to 4 minutes from my Office. I could easily choose to do any and/or all of my Hearings there. It would be a lot more convenient for me to drive 3 to 4 minutes down the road, rather than driving nearly an hour to Livonia, but I take these cases to win them, and guarantee that I will. As a result, I absolutely WILL NOT do anything other than a live, in-person Hearing at the Secretary of State's Driver Assessment and Appeal Division (DAAD) Hearing Office in Livonia, where I know the 5 Hearing Officers well. No second-rate, choppy, impersonal video Hearing done using equipment that was out-of-date a long time ago can compare to the real thing.

Despite my feelings and the statistical facts about Administrative Appeals, I'm not really too concerned with persuading someone not to try that route, if they're so inclined. I have more than enough work to keep me busy, so I'd rather just deal with someone who thought they would try it on their own, and then lost, and now really wants to do it right, rather than waste a lot of time trying to explain all that in the first place.

Continue reading "The Driver's License Restoration Appeal Process in Michigan - Getting Back on the Road - Part 2" »

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November 21, 2011

The Driver's License Restoration Appeal Process in Michigan - Getting Back on the Road - Part 1

Within the Driver's License Restoration section of this blog, I have covered every facet of the License Appeal process. Some articles cover the process from a much broader, overview perspective, while others, particularly many of those more recent, put a single component under the microscope for a detailed examination. This article will return to the "overview" perspective, so that a reader searching for general information about License Restoration can find a starting point. In that regard, this article will also include a look at how I, as a License Appeal Lawyer, analyze and handle License Restorations. In order to not miss anything important, this article will be broken into seven parts. There will be plenty of links to related articles and relevant sections of my website.

First, let's clarify who and what we're talking about. "License Restoration" is a process that follows a "License Revocation." It means a person has had their License Revoked for 2 or more DUI's, or, in some cases, a combination of DUI's and/or "Drug Driving" Offenses. Because so few cases actually involve a "Drug Driving" Offense, and because the principles involved in the Restoration process are the same anyway, from here on out we'll simply use the term "DUI" as we proceed.

happy_car2.jpgThere are 2 classes of Revocations:

  1. A 1-year mandatory minimum Revocation for 2 DUI's within 7 years, and
  2. A 5-year mandatory minimum Revocation for 3 or more DUI's within 10 years.

This means that after the "minimum" period of Revocation, a person is legally eligible to file for Restoration of their Driver's License. "Legally eligible" and really eligible are not the same thing. Let me explain.

One of the most important requirements in filing a License Appeal is that the person have at least 1 year of Abstinence in order to win back a License. In addition, the person will have to show that a certain period, typically at least 6 months (and that usually means, given that anyone with a 2nd DUI will almost always have at least a year's Probation, an additional 6 months) of "voluntary" abstinence The operative term here is "voluntary."

The body that ultimately decides License Appeals is the Michigan Secretary of State's Driver's Driver Assessment and Appeal Division, or "DAAD." The DAAD rules require, in some cases, a minimum period of at least 6 months abstinence from alcohol, and, in others, a minimum of 1 year. "Voluntary" means just that; a person has maintained their abstinence on their own. This is where many people who stumble through this on their own, and many Lawyers who simply do not know better, make a critical mistake. ANY period of time that a person is on Probation or Parole is NOT considered voluntary. The DAAD holds that if a person is subject to potential legal or penal consequences for drinking, and even if they are not subject to testing, the effective period of such a restriction (meaning Probation or Parole) cannot be considered "voluntary." In other words, a "voluntary" period begins when Probation or Parole ends.

In practice, a person can forget about winning a License Appeal with only 6 months of abstinence; the 1-year period is the minimum that will fly in a real-life Appeal. Thus, I will not accept a case where a person does not have at least 1-year abstinence from alcohol, and at least 6 months of that (or, more likely, another 6 months after that), of VOLUNTARY abstinence, because I know that, with any less, they will NOT win.

Continue reading "The Driver's License Restoration Appeal Process in Michigan - Getting Back on the Road - Part 1" »

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November 18, 2011

Probation Violations - Staying out of Jail in Macomb, Wayne and Oakland Counties

Within my Criminal Practice, I am regularly called upon to Represent former and new Clients in Probation Violation proceedings. This article will be a real-life examination of that process, and how a person can, in fact, stay out of Jail, rather than a confusing discussion filled with useless legal mumbo-jumbo. Let's start by being candid; a Probation Violation is always a bad situation. While there are a million different reasons why a person can have their Probation "violated," these charges tend to fall into one of only a few categories. In other words, a person will most often face a Probation Violation for one (or more) of 5 reasons:

  1. Missing a urine or other chemical test
  2. Testing positive for alcohol and/or drugs
  3. Missing a Probation appointment, or just stop Reporting
  4. Picking up a new case, or
  5. Not completing some condition of Probation, like community service, counseling, or paying all outstanding Fines and Costs.

Frustrated Judge2.2.jpgAnyone who gets "violated" knows, in the pit of their stomach, that the Judge is not likely to be happy with them. After all, "Probation" specifically means "not in Jail." Even if a person is given an initial Jail Sentence, they had to have been Sentenced to less than the maximum possible Jail term in order to have any Probation left to do. Thus, Probation stands in as a substitute for Jail. And when facing a Probation Violation, the first and biggest concern is staying out of Jail.

Everyone has their reasons for "violating" Probation, and we'll get to those shortly. First, however, a person has to understand that from the Judge's point of view, this all boils down to the simple notion that a break was given, and the person apparently didn't live up to their end of the bargain. This is, understandably, frustrating to the Judge.

That said, there are certain Courts, very often in Oakland County, that seem to "load up" on the Conditions of Probation. While no one ever wants to face a Violation charge, some people feel like they knew it was going to happen sooner or later, especially when they walked out of Court wondering if Jail wouldn't have been easier than having to do all the things that they feel were dumped upon them.

By contrast, plenty of other Courts, most often in Macomb County, dispense with imposing a million conditions and classes and community service and testing and Reporting and whatnot, and instead of almost setting a person up for failure, will rather sensibly and simply Order a person to just stay out of trouble, and maybe report once a month, as well.

The reader can no doubt tell which approach I favor...

Continue reading "Probation Violations - Staying out of Jail in Macomb, Wayne and Oakland Counties" »

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November 14, 2011

DUI in the Detroit-Area - Why so few Cases are Charged as "High BAC" or "Super Drunk"

As a DUI Lawyer who practices in Macomb, Oakland, and Wayne Counties, I handle DUI cases almost every day. About 2 years ago, our state legislature in Lansing decided that it would be a good idea to "up" the penalties in DUI cases where a person's breath or blood test (BAC) results are .17 or above. This new Offense is known as "High BAC" or "Super Drunk." Since it passed, the new Law has, by and large, been a flop. This article will discuss why almost no one Arrested for DUI, and whose breath or blood test results are .17 or above, at least in the Tri-County area, is charged with the new "High BAC" Offense

With all the things wrong in Michigan, one can only wonder how this subject ever even got on the legislative agenda, but if there's one thing we can say about Lansing, it's that every time a new law is passed, it will either make life more difficult, or expensive, or both. Ideas for actually making things better just don't show up on the menu.

Money can4.jpgIn their infinite wisdom, our State Legislators decided that anyone charged with a DUI who had a breath or blood test result (technically called a BAC, or Bodily Alcohol Content) of .17 or above should be charged with a more serious Offense which effectively doubled the penalties of a standard, old-fashioned DUI. Of course, it would have been somewhat unpopular, perhaps to the point of being political suicide, to stand against this idea, so both houses fell in step and went along, and the legislation passed without difficulty.

On the face of it, the notion of making "super drunk" drivers face stiffer penalties sounds like it could have the desired impact of discouraging people form engaging in this kind of behavior. Unfortunately, DUI is always an "unintended" Crime. No one sets out to go and get drunk, much less "super-drunk", and then drive home. Instead, as a person gets drunker, their ability to make a sound decision regarding driving gets proportionally impaired. In reality, getting drunk fundamentally impairs a person's ability to make good decisions. At 2 in the morning, and needing to get home, people will inevitably turn to what's most convenient to do that; their car, even though that's about the worst decision they could make, and one, when they were sober they swore they never would.

What no one bothered to consider was the financial impact of this new law. DUI has been called a "cash cow," and is unarguably a big financial boon to municipalities. At its simplest, DUI is big, easy and good money for the Courts, the Towns, and the Police which process and handle these cases.

In their haste to act, the legislature obviously did not consider that in "doubling" the penalties for High BAC cases, they were making this new Offense a state crime that could no longer be handled by local, city and township Attorneys, and would divert the Fines from those municipalities to the state. In other words, the Fines imposed in High BAC cases are paid directly to the State, instead of the city or township where the case has been brought.

This had the potential to cost cities and townships a huge amount of cash. This is like a dam in their revenue stream. And with money being in such short supply, there isn't a city or township anywhere that wants to give up any more than it has to, especially to the state. Although there may not be any accurate statistics, a large enough portion of DUI charges involve a person who tests out with a BAC of .17 or above. The percentage of people who come in over that limit is substantial. This in turn, presented a potentially substantial cut in the money flowing into cities and townships from DUI cases.

Continue reading "DUI in the Detroit-Area - Why so few Cases are Charged as "High BAC" or "Super Drunk"" »

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November 11, 2011

How to Win a Michigan Driver's License Restoration Appeal Without Being Involved in AA - Part 2

In Part 1 of this article, we began discussing how a person can win a Drivers' License Restoration case without going to AA. We began by acknowledging the important role AA played in the genesis of the whole notion of "Recovery," and how AA has provided much of the language we use to talk about Recovery and Sobriety.

In this second part, we will pick up by examining how a person can get "Sober" without AA, and how and why the State recognizes that AA is but one of many viable ways to Recover from an alcohol problem. In other words, we'll discuss how and why a person can win a License Appeal without going to AA.

Choice Road2.jpgIn the first part of this article, I noted that more than half of my Clients are not actively involved in AA. Of that group, probably half, or maybe even a bit more, have at least been to AA a few times. Some went for years, some for months, and a few for at least a couple of meetings. They all have their reasons for leaving the program, from outright dislike to simply feeling strong enough in their own Sobriety to not feel the need for the kind of support offered by AA. It really doesn't matter why a person left. What matters is that, in the end, they made a conscious decision that they didn't need to go to any more meetings to stay Sober.

Whether a person attended 1000 AA meetings, or only attended 1, they undoubtedly heard the "first step." Many of those who attended AA for a while will often say that they simply "got it," and felt comfortable leaving the program. Those who only went to a few meetings often say they already "had it," and that the notion of not drinking again was something they had already accepted, meaning that AA really didn't offer them anything more than they already had.

Some people just hated AA. They found it to be too "religious," or "cult-like." Some people just don't do well in groups. Again, whatever the reason a person never attended or stopped going to AA, the key thing, at least for a License Appeal, is that they recognize that they cannot drink alcohol anymore. And even if they've never heard of AA's first step, their understanding of their situation parallels that of any AA attendee; I have an alcohol problem, and the only way to "fix" it is to completely stop drinking.

In a License Appeal, the State is looking not only for abstinence from alcohol, but a commitment to remain abstinent. This is where AA provides, or at least used to provide, an advantage. AA both implicitly and explicitly makes clear that the ONLY way to "control" an alcohol problem is to never drink again. There is no room for debate. And however much a person may like or dislike the AA program, on this score, it is 100% correct. The ONLY way to "control" an alcohol problem is to NOT drink. Period.

Continue reading "How to Win a Michigan Driver's License Restoration Appeal Without Being Involved in AA - Part 2" »

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November 7, 2011

How to Win a Michigan Driver's License Restoration Appeal Without Being Involved in AA - Part 1

Can a person win back their Michigan Driver's License without going to AA? This article will address this question, and explain why the answer is not only "yes," but also how and why the majority of the License Appeals I file and win (and since about June of 2009, I have won 189 out of the last 191 cases I have accepted) are for people who are not currently attending AA.

Many of the people with whom I speak tell me that they've heard that "you can't win your License back without being in AA." To be clear: That's DEAD WRONG. I ought to know; I win such cases multiple times per week.

Colorchoices4.jpgHowever, many years ago, that statement was much closer to the truth than it is now. If the reader had called my Office in back 1991 or 1992 and inquired about a License Appeal, the very first question I would have had is whether or not they were currently attending AA. If they were not, I would have simply instructed them to start going, and call me back after they had at least a year of attendance under their belt.

The pendulum has swung the other way, and I think this represents a better understanding on the Michigan Secretary of State's Driver Assessment and Appeal Division's (DAAD) part that AA is a great program, and, in fact the ONLY program, for some, but NOT all people. To be clear about this: The MAJORITY of people for whom I win a License Appeal are NOT currently involved in AA.

This is not a knock against AA. As I noted, AA is a great program for lots of people. In fact, it is the only path to true Sobriety for SOME of them. But, in my opinion, one of its biggest shortcomings is that AA kind of "preaches" that it is, without exception, the ONLY legitimate path to true Sobriety.

Years ago, when I had a Substance Abuse Counselor as a Legal Assistant (she later left and became an Ordained Minister, and then moved on to become a College Professor), she helped me understand the whole notion of "Recovery" and "Sobriety" from a more holistic, panoramic perspective. She explained that there were various "schools of thought" about Recovery. Which one worked best for any particular person was a matter of choice, and fit, and that a "one size fits all" approach is just plain wrong-headed.

Continue reading "How to Win a Michigan Driver's License Restoration Appeal Without Being Involved in AA - Part 1" »

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November 4, 2011

Losing a Michigan Driver's License Restoration Appeal Because of a "Questionable/Insufficient" Substance Abuse Evaluation - Part 3

In Part 2 of this article, we continued our examination of how and why some License Appeals lose due to what the DAAD calls a "questionable/insufficient Substance Abuse Evaluation." We began examining the Substance Abuse Evaluation form section by section, noting some of the common sources of errors in its completion that result in the State Denying a License Appeal.

In this 3rd and final Part, we will complete our section by section analysis of the Substance Abuse Evaluation form, then wrap up by looking at how to avoid losing a License Appeal for submitting a flawed Evaluation that the State considers "questionable/insufficient."

Denied 2x.jpgThe Drug Screen (meaning Urine Test) section that follows is pretty clear. Despite the very clear request for a 10-panel drug test with at least 2 integrity variables, I have seen Evaluations that try and explain that the lab used by that particular Evaluator ONLY does 7-panel screens. That won't work. That's like going to a soda pop vending machine where the price of a Coke is $1.25 and only putting 4 quarters in. It doesn't fly.

Beyond making sure that a person actually took a 10-panel test, the Lawyer's job is to make sure that both integrity variables (usually "specific gravity" and the person's "creatinine level") are good. In addition, if the person is on any medication that shows up in the drug screen, explaining that is a must. This can include a letter from the person's physician outlining their condition, the need for the medication, and, if a mind or mood-altering medication MUST be prescribed, why that's the case, an acknowledgement that the Doctor knows the person is in Recovery, and that he or she is monitoring both the dosage and has determined that the person does not appear to be abusing the medication, or getting more of it from an additional source or sources.

A good Evaluator will address this right out of the gate. A good License Appeal Lawyer will make sure every "i" is dotted and every "t" crossed in such a situation. Unfortunately, some of the Clients I see who have already lost on their first try become angry that either their previous Evaluator and/or Lawyer "didn't say anything about that to me!"

Next up is a person's Lifetime Abstinence History. Many readers who filed a prior Appeal and lost may have submitted the older version of this form (still valid, by the way, and more on that later) in which this section was called "Lifetime Relapse History." Despite the change in name, this section is still asking for the same exact information. Explaining what that means simply requires more space than I can afford without turning this article into a "textbook." Not to rely too much on an old crutch, but this section is rather important and knowing how to respond to it is part and parcel of why my first meeting with a new Client takes 3 hours. I cannot just "summarize" this, anymore than a Dentist can "summarize" how to do a root canal.

Continue reading "Losing a Michigan Driver's License Restoration Appeal Because of a "Questionable/Insufficient" Substance Abuse Evaluation - Part 3" »

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