May 2012 Archives

May 28, 2012

Memorial Day 2012

It's Memorial Day. Each year, I take a break from my usual publication schedule of two articles per week and put up a short expression gratitude for the sacrifice and service that our men and women in uniform make on our collective behalf.

This year, we find many of our military personnel in Afghanistan. It is dangerous and deadly there. Memorial Day is a special day reserved for special people. And these special people risk life and limb to keep us safe. Throughout the history of our country, many of our service people have died in combat. Loads more have been wounded, and all of them put themselves at risk, and in harm's way for us.

Flag 2.2.jpgI'm sure every reader would agree that we owe a deep, collective "thank you" to everyone who has served or is serving in our armed forces. From the oldest Veteran, to the youngest enlistee, to all our Reservists, and everyone who has given their life while in service, thank you for your courage and your sacrifice.

I wish we could do more to show our appreciation. I have not made a point of advertising this, but in my Office, I always give a 10% discount off of my listed Fees to anyone who is on active duty, or who is following a period of active duty in the Reserves. This applies across the board to everything from Driver's License Restorations, to DUI cases, and to those Criminal charges that I handle. If anyone else is in a position, in whatever capacity, to offer at least some small token of appreciation to our service men and women, I urge you to do so.

While we at home relax, and take it easy on this Memorial Day, and as we enjoy our nice day off, amongst whatever other things things we do, please remember to take a minute and offer up a prayer of thanks and for the protection of our courageous Military personnel all over the world. They certainly deserve it.

Thank you all so very much.

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May 25, 2012

Appealing a Michigan Driver's License Restoration (DAAD) loss Directly to Circuit Court

Not a week goes by in my Michigan Driver's License Restoration Practice without someone calling me right after they've opened their mail and found out they've lost a Michigan Secretary of State License Appeal. To be clear, these aren't my Clients: I win about 98% of my cases the first time around, and I even Guarantee it. Those who call me after a loss are either people who have tried a "do-it-yourself" Michigan License Reinstatement without a Lawyer, or hired some Attorney who said he or she could "do" a License Appeal. Obviously, things didn't work out quite the way they had hoped.

On my website, I have noted that it is almost always too late to hire a real Driver's License Restoration Lawyer, like me, after a person has gone before the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) on their own, or with a Lawyer who doesn't specialize in License Appeals, and lost. Not to sound flippant about it, but hiring a qualified specialist should have been the original plan of action.

sad-face2.1.jpgWithin the body of the Driver's License Restoration section of this blog I have examined how and why people who have tried a Michigan License Restoration Appeal on their own, or with some Lawyer whose best qualification to handle one of these rather complex cases is that they "do" License Appeals, or that they do them "cheap," and then lost, turn out to be the best Clients for me. In the series of articles that followed, I carefully reviewed how I'll have to go about fixing the errors and mistakes that the person, or their former Lawyer made in trying that first Appeal, causing it to lose. Nothing about that has changed.

Unfortunately, another thing that has not changed is that those who call my Office after losing a "do-it-yourself" Michigan License Restoration seem to think that all they need to do is spend the money and hire a specialist like me to fix things. They often believe that filing an Appeal in Court will change the outcome.

That rarely happens. On top of that, I never do Appeals to Court. Because I win almost all of my cases, and back that up with a Guarantee, I have very little experience losing, and have no reason to take any of my cases to Court. I certainly have no interest in going to Court on a case that someone else has screwed up. The reader must understand that you cannot appeal to Circuit Court just because you disagree with the decision. Nor can you appeal to Court and "correct" mistakes made in the original case, such as a loss caused by a "questionable/insufficient Substance Abuse Evaluation," or problems with the Letters of Support.

Instead, an appeal to Court must essentially prove that the Hearing Officer who decided the case committed a legal error. Technically speaking, while the person who files a License Appeal must prove his or her case by "Clear and Convincing Evidence," the Hearing Officer's decision must be based upon what is called "Competent and Material Evidence." This means that even if the Hearing Officer was really "nit-picky," and even if a Circuit Judge reviewing the case comes right out and says (and this has happened) that "if I had been the Hearing Officer, I would have Granted your Appeal," unless that Judge can find legal error to the degree that he or she concludes that the Denial was not supported by Material and Competent Evidence, it will stand. Good luck with that....

Continue reading "Appealing a Michigan Driver's License Restoration (DAAD) loss Directly to Circuit Court" »

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May 21, 2012

Michigan Driver's License Restoration Lawyer - Honesty in Training

Recently, a younger Lawyer who had taken on a Michigan Driver's License Restoration case called to ask me some questions about the process. As a full time Michigan Driver's License Restoration Lawyer, getting calls from all corners comes with the turf. This includes calls from Lawyers who have already accepted a case, and then need some guidance in trying to figure out what to do with it.

As I spoke with this inquiring Lawyer, I soon learned that not only hadn't she screened her Client about his (or her, I really can't remember) Sobriety, but was pretty much aware, or at least believed, that the Client was still drinking. That's when I had to be brutally honest. To me, that a person is really and truly Sober is a first and minimum requirement before I will accept their case. Yet once I do agree to accept a case, I Guarantee that I will win the person's License back the first time, or else continue to represent them before the Secretary of State (technically, the Driver Assessment and Appeal Division, or DAAD), without further Legal Fee, until they do regain their License. In large part, I can make this win Guarantee because I don't take cases where a person isn't genuinely Sober.

integrity-sign 1.4.jpgI told her as much.

There's no real news in all of this. What I found so interesting was how she responded to my suggestion that she not take a case for a person who is still drinking. She pointed out that she didn't have the potential Client base that I have, and that she wanted to learn this area of the Law, get some experience, and try and establish herself, at least to some extent, as able to "do" License Appeals. She couldn't charge nearly what I do and certainly could not offer any kind of win guarantee. She felt she had no choice but to accept a "lesser" case than I would ever consider.

I thought about what she had said. No doubt, back when I was cutting my teeth, I took some cases I would never touch now. I didn't know better. Much of the "expert knowledge" I sell now was acquired in the school of hard knocks years earlier. Hopefully, experience and practice refines our skills. I know it has for me.

Yet I got lucky in one very important way; I had a background in alcohol and substance abuse assessment, counseling, diagnosis and treatment. It was then, and continues now, to be a field of study in which I have a keen interest. My undergraduate college degree is in Psychology, and I had seriously considered continuing those studies and earning a PhD, but the call to be a Lawyer was stronger. Thus, even as a young Lawyer, I knew all about Sobriety, and the important role it plays in a Michigan Driver's License Appeal.

Continue reading "Michigan Driver's License Restoration Lawyer - Honesty in Training" »

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May 18, 2012

What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 3

In Part 1 of this article we drew a rough outline of what "Probation" means. In Part 2, we saw how Macomb, Wayne and Oakland Counties were each different from on another, with Macomb being the best in which to face a DUI, Wayne being not far behind, and Oakland really coming in as the last place one wants to wind up before a Judge after a Drunk Driving Arrest.

In this third and final installment, we will look at both standard and "special" conditions of Probation, and try and get a feel for what being "on Probation" for a DUI case really means.

Probation Star 1.2.jpgAt this point, we can move on from our County-by-County comparison, and examine what "Probation," and being on it (especially for a Drunk Driving charge), really means. Probation begins with the Judge signing an Order, which is a document called an Order of Probation.

An Order of Probation is a list of things the Judge Orders a person to do, as well as some they are NOT allowed to do. All Courts, independent of location, forbid many of the same things while a person is on Probation. Let's look at some "standard" conditions of Probation, beginning with the things a person is Ordered NOT to do:

  • Not violate any criminal law of any unit of government.
  • Not leave the state without the consent of this court.
  • Make a truthful report to the probation officer monthly, or as often as the probation officer may require, either in person or in writing, as required by the probation officer.
  • Notify the probation officer immediately of any change of address or employment status.
  • Not purchase or possess a firearm.
  • Not consume any alcohol.
  • Not use or possess any controlled substances or drugs without a valid prescription (medical marijuana is specifically prohibited by many Courts).
In some cases, a Judge will add "special" conditions. Most often these are things like:
  • Not to be Arrested or Charged with any crime. No conviction is required.
  • Not to enter into any bars, or establishments whose primary purpose is the selling of alcoholic beverages.
  • Not to drive a motor vehicle without a valid License.
Probation is often thought of as kind of an order to just "stay out of trouble," and to a large extent, that is true. However, in a DUI case, a person is quite likely to be required to do certain things beyond just not getting in trouble. Some of these things are pretty standard, while others are unique to either the particular case, or the Judge presiding over it.

Continue reading "What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 3" »

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May 14, 2012

What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 2

In Part 1 of this article, we began to sketch out a general concept of Probation. Here, in this second part, we'll add more detail, and really get a handle on what it means to be "on Probation" for a DUI in Macomb, Wayne and Oakland Counties. Let's refer back to our example from the first part of this article involving Dan the Driver and his 1st Offense DUI, and see how his case would likely play out in a Court from each of the 3 Counties.

First, we'll assumImpaired Driving" (OWVI). e that the evidence against Dan is solid, that the case is not going to be magically dismissed somehow, and that his BAC (Bodily Alcohol Content) was about a .14, which is not too high (remember, .17 and above can trigger a "High BAC" charge).

PO BADGE Pink 2.jpgSecond, we'll assume that Dan's DUI, meaning his original charge of "Operating While Intoxicated"(OWI) charge will be plea-bargained down to the lesser charge of "Impaired Driving" (OWVI).

Third, we'll assume that I am handling the case. I'll make sure that when we talk about Dan being put on Probation, that means Probation with NO Jail. DUI cases are special, and properly handling them requires specialized knowledge and skill. While I can't speak for any other DUI Lawyers, I can enthusiastically advise the reader to NOT hire some Lawyer who just "does" DUI cases - along with all kind of other stuff.

Finally, we'll assume that Dan has been thoroughly prepared to take his written alcohol assessment test, and undergo the whole PSI interview.

In Macomb County, it can almost always be worked out so that a person would face no more than a year's Probation in any Court. In certain places, like Shelby Township and New Baltimore, I can probably keep my Client off of any kind of Probation, meaning that we might be able to wrap his or her case up with little or nothing more than the payment of fines and costs. In other cities, like Eastpointe, Roseville, Sterling Heights and Warren, I might be able to help the Client avoid what's called "Reporting Probation." Instead of having to show up once a month and meet with a Probation Officer, a person can get "Non-Reporting Probation," and will simply be under the "eye" of the Court for the next year. Obviously, if the person gets Arrested and/or Convicted for a new Offense, he or she will be in big trouble.

In places like Clinton Township, Romeo, and St. Clair Shores, I should be able to keep my Client's Probation to no longer than a year, although these Courts will generally require that the person does, in fact, Report for that year. If my Client's case is pending in one of these Courts, I will shift the focus of our alcohol assessment and PSI preparation from trying to completely avoid Probation, which is not likely, to avoiding the kind of "do this and do that" Probation that is sometimes called "Probation from Hell."

The bottom line is that Macomb County still is the best place to wind up facing a DUI. Now, we'll turn our attention to Wayne and the Oakland Counties.

Continue reading "What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 2" »

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May 11, 2012

What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 1

As a Michigan DUI Lawyer who prides himself on keeping his Clients out of Jail, dealing with "Probation," in virtually every sense of the word, is an everyday thing for me. In many of my other Drunk Driving blog articles, and within the various DUI sections of my website, I examine the rather critical and important role of the Pre-Sentence Investigation (PSI) process carried out by a Court's Probation Department, including the vital part that the legally required alcohol assessment test plays in the ultimate outcome of any DUI case. As I have noted, the PSI, and alcohol assessment test that is part of it, determines, more than anything else, what happens to a person as a result of DUI.

This article will shift the focus from affecting the outcome of the PSI process to the very outcome, itself. We'll look at what being "on Probation" really means, how the conditions and terms of Probation are decided, and how that is different from Court to Court. We'll cover this subject in 3 installments in order to really understand Probation, and to make sense of it.

MichiganCorrections Patch 1.1.jpgAt its simplest, Probation is an alternative to Jail. A person is put on Probation with the understanding that they will follow the rules (whatever those rules might be) set out by the Judge, at Sentencing, or else get to Jail for Violating Probation. Beyond this rather simple instruction to look at the obvious, written instructions, we must also read "between the lines" in order to get a complete picture of what being on Probation really means.

Although it is an alternative to Jail, Probation can be handed out along with Jail. The maximum legal penalty in a 1st Offense DUI in Michigan is 93 days in Jail, a Fine of up to $500, plus Court costs. Let's look at a typical 1st Offense case as an example:

If the Dan the Driver gets a 1st Offense DUI, and the Judge sends him to Jail for 93 days, he or she cannot put Dan on Probation. Dan will have "maxed out" his Sentence, and therefore, upon his release, not be subject to any further punishment by the Court. The Judge can also elect to NOT send Dan to Jail, and put him on Probation for a year, or two, with the understanding that if he screws up anywhere along the way, he can be sent to Jail for any period of time up to the whole 93 days in Jail.

A less common, but perfectly legal option is to send Dan to Jail for some period less than the full 93 possible days, and put him on Probation, with the understanding that if he screws that up, he can be sent back to Jail to serve any part of the un-served 93 days. Thus, if Dan is sent to Jail for 21 days, and then stuck on Probation for a year, there are 72 un-served day of Jail that the Judge still has "in the bank" that he or she can hand out, if Dave messes up somehow.

For all of that, "Probation" usually means "no Jail."

Continue reading "What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 1" »

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May 7, 2012

Winning a Michigan Driver's License Restoration Case Without Going to AA

Most of my Practice is devoted to being a Michigan Driver's License Restoration Lawyer. In reality, at least 75% of my day-to-day work centers upon Michigan License Reinstatement cases where a person has lost their License for multiple DUI's. I have found that there are probably more misconceptions about the License Appeal process floating around than there is correct information. This article will focus on one of those misconceptions, the myth that a person must be actively involved in AA in order to win a Driver's License Restoration Appeal.

In a few previous articles, I specifically examined how and why a person can win a License Appeal without being involved in AA. Rather than repeat the same thing here, this shorter article will focus more on the simple fact that a person can win License without AA, and not so much how or why that's the case.

AA pic copy1.2.pngI should point out that this isn't just my opinion, either. If a person is genuinely Sober, and I accept their Driver's License Restoration Appeal, I Guarantee that I will win their case the first time, or I will continue to Represent the them before the DAAD without further Legal Fee until they do win back their License. Thankfully, with a win rate of over 98%, I don't go have to go back a second time very often.

Driver's License Restoration Appeals are heard and decided by the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) Hearing Officers. All of my cases scheduled for a live, in-person Hearing at the DAAD's Office in Livonia, where there are 5 Hearing Officers before whom I have appeared countless times. There are 2 other Hearing Office Locations in Grand Rapids and Lansing, and numerous remote locations that do a "video Hearing" over closed circuit TV.

It used to be the case that winning back a Michigan Driver's License without AA was almost impossible. I am told that there is still some of this bias left in the Grand Rapids and Lansing Hearing Offices; since I never go to either of those locations, I really have no first-hand knowledge about how they do things there. Instead, by having all of my cases heard in the same place, I just know what it takes to win when I handle a case. And more than half of the cases I win are for people not active in AA.

That said, most of those Clients not active in AA at the time I file their License Appeal do have some past AA attendance. While not necessary, even the shortest prior involvement with AA is helpful. The AA program, whether you love it, hate it, or just don't care about it, more or less created and provided the language of Recovery. Just about any and everything a person can learn about Recovery or Sobriety can trace its origins to AA.

Continue reading "Winning a Michigan Driver's License Restoration Case Without Going to AA" »

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May 4, 2012

Michigan Driver's License Restoration - From Restricted to Full License in a Year

After a Michigan resident wins a Driver's License Restoration Appeal, they are put on a Restricted License and required to drive with a kind of breathalyzer unit in their car, called and ignition interlock, for a minimum of 1 year. In a recent blog article, I examined what kind of License you get when you win a Michigan Driver's License Restoration Appeal. This article will focus on what needs to be done after that minimum first year on the Restricted License with the ignition interlock has been fulfilled.

To be clear, this necessary follow-up only applies to Michigan residents. Out-of-state residents do not win a Michigan Driver's License; they win a "Clearance" of the Michigan Hold on their Driving Record that allows them to obtain (or renew) a License in another state. Once they've won their first Appeal, they're done.

Pieguy copy1.jpgIt's not quite so simple for Michigan residents. The Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) requires that anyone winning a Michigan License Appeal be monitored for at least one year before they can come back and request that they be allowed to remove the ignition interlock unit from their car and be awarded a Full License. I am often asked if there is any way around this. There is not; it is required by Law.

The Hearing Officers deciding these Appeals find some security in the idea that they can keep a Driver on a kind of leash. The reader may be surprised to learn how many people on the ignition interlock wind up blowing positive for alcohol. And I'm not talking about false readings, either; I mean true-blue, bona fide proof of drinking results. Fortunately, I don't see too much of that, as I try very hard to screen out anyone who is not really and truly Sober, and committed to remaining that way. By limiting my Representation to only those people who are Sober, I can also offer a first time win Guarantee in any case that I accept.

Yet winning the first time does not, in any way, guarantee winning the second Appeal for Full Driving Privileges and removal of the ignition interlock. This does seem rather counter-intuitive; after all, if a person has had no problems for a year, and has already won their first License Appeal, what more could the state want?

As it turns out, the state wants a lot.

After that first year is up, and a person becomes eligible to file for removal of the ignition interlock and Full Driving Privileges, they must go through the entire License Appeal process all over again. The ONLY difference is that they must also bring a "final report" from the interlock company detailing how well (or not) they did with the breath-testing unit in their vehicle. We'll come back to this later.

Continue reading "Michigan Driver's License Restoration - From Restricted to Full License in a Year" »

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