June 2012 Archives

June 29, 2012

Probation Violation for Positive Test Result - The Science of Persuasion versus the Science of Testing

After nearly 22 years of Practicing Criminal Law, handling DUI cases, and helping people whose Licenses have been Revoked for multiple DUI cases get their Driver's Licenses Restored, I have seen pretty much everything once or twice, and a few things countless times. One "constant" that impacts each of the 3 kinds of cases I handle traces back to a breath or urine test that is positive for alcohol or drugs. In this article, we'll examine that phenomenon in the context of Probation, and how it gives rise to the dreaded "Probation Violation."

Another "constant" mixed up with the whole concept of Probation Violations is that a somewhat significant number of people wind up testing positive for alcohol or drugs during the course of their term of Probation. If, in the larger picture, the number or such positive tests were incredibly small, there wouldn't be any need for continued testing. But it's not. The number of Probationers who get caught testing positive is surprisingly high. This reinforces the perceived "need" for testing to ensure compliance with Court-Ordered abstinence.

PeeTest1.2.jpgProbation Officers learn, early on, that a positive test can come from anyone. Whether the Probationer is the nicest soccer mom, or the most educated corporate vice-president, just an average Jane or Joe, or the most hardened, ex-con, turning up positive on an alcohol or drug test, whether it be as the result of a breath test, urine test, or even while on some kind of alcohol monitoring device, like a "scram" tether, is a daily occurrence.

Anyone who tests positive knows if the result is correct or not. In reality, most positive tests are actually the result of someone drinking or using, and nothing else. Once in a blue moon, a person might work in a chemical factory and be exposed to fumes that trigger a "false positive" on a "scram" tether, or might walk into some testing facility with such chemicals soaked into their clothing, but this kind of exception is rare. Most of the time, however, what really happens is that a person has tried to time a test, and simply gets popped.

These simple facts make for hard cases. Anyone reading this is likely doing so because either they, or someone they care about, is in this situation, and has tested positive. Not many people are that interested in this topic unless it applies to them, and has immediate relevance, and a positive test result is as relevant as it can get. Positive tests happen every day. It's frightening when that happens, but I'm here to help. To do that however, we have to start off being candid and honest, and not sugar-coat anything. Most positive tests are positive because a person drank or used, and not because the test is screwed up, or the person took cold medicine, or Aunt Bertha put too much vanilla extract in Uncle Bob's birthday cake, or whatever other story you can dream up.

What do you do if you're facing a Probation Violation, or know you're going to be facing one, for a positive test? You probably already know you need a Lawyer, but what kind of Lawyer? How much should you pay? Who do you turn to at this critical moment?

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June 25, 2012

Michigan Driver's License Restoration or Clearance Without a Lawyer

Recently, someone inquired about whether they "needed" to hire a Lawyer for a Michigan Driver's License Restoration case. This caller had moved out of Michigan, across the country, and was understandably skeptical about paying lots money to fly in and come and see me for three hours, then go and have his Substance Abuse Evaluation completed at the Clinic a few blocks from my Office to which I refer my Clients, only to return home, wait for his Hearing date, then come back again to attend that. He candidly asked if all the statistics about how many "do-it-yourself" License Appeals lose and isn't a bit exaggerated, and if I don't just "say that stuff" to drum up business.

Actually, I think that's a great question, and it has been awhile since I've really taken this subject on. Here, I'll open with an answer before my explanation, and I suspect that my response might surprise the reader: If you are thinking about trying to handle your own Michigan Driver's License Restoration Appeal (or Clearance), I say, "Go for it." I make my income helping people who really need or want my help. I have absolutely ZERO interest in "scaring" anybody into calling me. Therefore, anyone who thinks they can handle their own case should give it a go. While the statistics are overwhelmingly unfavorable, the fact is that some people actually do, eventually, win.

Ruleta1.2.jpgIn terms of the success rate for out of state Appeals that don't require a Hearing (called an Administrative Review) the numbers have remained fairly constant: 3 out of 4 lose. There are several reasons for these dismal results. Before I get into any of the "Lawyer" stuff, the biggest reason overall is often the one most frequently overlooked: Most people with an alcohol problem cannot beat it.

That might sound harsh, but it's true. In "Treating Alcoholism: Helping Your Clients Find the Road to Recovery" by Robert R. Perkinson, PhD., (2004; Wiley Books), a textbook I'm currently reading, the author restates one of the most stark and frightening statistics of all: 95% of all alcoholics die of their disease.

Think about all those people from high school who were the "big drinkers." Almost all of them just went on to become "bigger drinkers." Most people, in their youth, knew someone who could have (or was) called or considered an "old drunk." Think about what happened to those people; they never got better, they just died an "old drunk."

Statistically speaking, it is a distinct minority of people with an alcohol problem who actually overcome it. If the reader finds him or herself in this rather elite group, then congratulations are in order. In my Practice, I require anyone whom I represent to actually be Sober as a prerequisite to accept a Driver's License Restoration Appeal case. If I do accept a case, I Guarantee that I will win it. Yet of those people who contact my Office, many admit to still drinking, or otherwise don't think they have a problem with alcohol. I cannot help them. Nor will the Michigan Secretary of State...

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June 22, 2012

DUI 2nd Offense in Michigan - Detroit Area Courts - Part 2

In Part 1 of this article, we began our examination of a 2nd Offense DUI in the District Courts of Macomb, Oakland and Wayne Counties. We looked at the general ideal of "avoiding Jail," and began looking at the real sleeping giant in any 2nd Offense case: The issue of a potential drinking problem. We ended Part 1 by transitioning from just staying out of Jail to avoiding as many of the other potentially burdensome consequences of a 2nd Offense DUI case as possible. We talked about avoiding all the conditions of "Probation from Hell."

But to do that, certain things need to be understood.

Booze Cuffs 1.2.jpgChief amongst them is that in a 2nd Offense DUI, the Law REQUIRES that a person be Ordered into some kind of Counseling. A 2nd DUI within 7 years makes a person a "Habitual Offender" under Michigan Law. This means there is a presumption that they have an alcohol problem. It seems that the lawmakers paid some attention to statistics, as well.

And all of that means that unless the case gets "knocked out" somehow, the Judge will absolutely be Ordering the person into some kind of Counseling.

About the worst legal strategy a person can have is to simply show up on the day of Sentencing and wait to see what happens. On par with such an utter lack of a plan is to show up at Sentencing, and then, in the hopes of staying out of Jail, tell the Judge something meaningless, like "I'm willing to do whatever it takes" or "I am willing to go to Counseling," or, worse yet, to admit, as if in a moment of sudden but ridiculously delayed realization, that "I know I have a problem." This is just being reactive, albeit in a rather dim-witted and slow kind of way.

Instead, the Client should be guided into Counseling before they ever wind up in front of the Judge. Not only will they be able to pick out a Counselor who is more affordable and convenient for them if they take the initiative and start early (meaning they won't just get stuck into some "one size fits all" Counseling program the Court Orders, regardless of how convenient or not it is for the person), they will also score big time "brownie points" for having recognized the need for help early on, and having done something about it. I can and do use such proactive actions to my Client's decided advantage throughout the case.

This works even for those who firmly believe that they don't have any issues or problems with alcohol, because the Law requires everyone with a 2nd Offense to get into Counseling no matter what. A person's self-assessment is NOT part of this equation. This is part of the way a DUI Lawyer helps his or her Client make things better. This is what the "Attorney" part of the title "Attorney and Counselor at Law" means.

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June 18, 2012

DUI 2nd Offense in Michigan - Detroit Area Courts - Part 1

A Second Offense DUI is serious business. Anyone facing this charge does not need to be scared out of their wits by laundry listing all the bad things that can happen. This article will take a realistic look at what will happen to a person facing a 2nd Drunk Driving charge, as well as how this charge is viewed by the Courts. As bad as it can be, a 2nd Offense Drunk Driving is NOT the end of the world. In order to properly cover this topic in sufficient detail, this article will be broken into two parts

In that regard, geography plays a prominent role in how things will turn out. Where a DUI takes place has as much, if not more to do with what will happen to a person as anything else. Beyond anything else, a 2nd Offense DUI really raises red flags about a person's alcohol use, and invariably signals a potential, if not likely drinking problem.

DUI Drinkeys copy 1.2.jpgThe first concern anyone has when facing a Second Offense Drunken Driving charge is whether or not they're going to Jail. This has to be a starting point for any worthwhile discussion of Second Offense cases. Imagine if this article began by discussing Fines and Costs... Who care about Fines and Costs over Jail? Avoiding Jail is always the first order of business. Once the way has been cleared for that, minimizing all the other consequences that can follow a DUI Second Offense charge becomes the next order of business.

One of the best ways to avoid Jail is to avoid the whole DUI charge. Every single aspect of the case must be put under the microscope, so to speak. Why was the person stopped? Was there a cell phone tip? Is there Police car video? How were the Field Sobriety Tests conducted? Were the performed on a level surface, in decent weather, or on angled or uneven pavement, and/or in bad weather? What about the Breath Test? Was a Breathalyzer test administered? How long after the Arrest? Was the test conducted properly? Was the Breathalyzer machine properly calibrated? Was a blood test taken, instead? What were the results, and was there anything that could affect the accuracy or reliability of those results?

There are countless things, large and small, that can affect how strong or weak the evidence in any DUI charge may be. Often, cases that seem clear-cut might be compromised with an almost hidden defect in the evidence that cripples the Prosecution's evidence. Other cases might seem, at least to the person facing the charge, fraught with problems, yet turn out to be far stronger than they might at first appear. The key is to look, and look carefully. If you don't look, you won't find...

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June 15, 2012

Michigan Driver's License and Driving Record Holds - Fixing or Clearing the way for an out of State License

As a Michigan Driver's License Restoration Lawyer, my Office is contacted almost daily by someone who now lives outside of Michigan, in another state, and discovers that they cannot get a Driver's License because of a Michigan "Hold" on their Driving Record as a result of multiple DUI convictions. About one-half of the Clients for whom I win back the privilege to drive again live outside of Michigan. I work with and resolve these issues more in any given month than most Lawyers will ever see in their lifetime. Not only do I have loads of experience fixing these DUI Driving Record problems, I have a first time win Guarantee that assures the Client that, if I accept their case, they'll only have to pay me once to get back on the road.

Out-of-State/Michigan Driver's License cases often start the counter of another State's DMV, the equivalent of Michigan's Secretary of State. A person will go there to apply for a License, only to learn that a License cannot be issued because of a Michigan "Hold," or Revocation for multiple DUI's. Most of the time, the person will have lived in Michigan, at least for a time, and held a Michigan Driver's License. It does not matter if all (or even any) of their DUI's took place in Michigan. What matters is that they held a Michigan License at the time they received a 2nd DUI within 7 years, or a 3rd within 10 years, regardless of where those DUI's occurred.

Mi Map copy1.3.jpgI've handled cases where a person NEVER held a Michigan Driver's License, but picked up 2 DUI's here within 7 years. As a result, the Secretary of State created a Michigan Driver's License number for them, then immediately "Revoked" their Michigan License, even though they never really had one issued here. The upshot of all this is that when their out of state License was due for renewal, they could not renew because of the Michigan "Hold."

Once a Michigan Driver's License is Revoked for multiple DUI's, it almost always prevents a person from obtaining a License in another state. In years past, some people were able to slip past this and get an out-of-state License. That was then, this is now...

As the reporting procedures for the NDR (National Driving Register) started to improve, those people who once held out-of-state Licenses began finding themselves unable to renew them. Amongst those calling my Office, a significant number have had an out-of-state License that they are unable to renew because of DUI convictions from years ago.

In either case, the reality is that the State of Michigan has Revoked a person's Michigan Driver's License for multiple DUI's, and the person will never be able to get another License, anywhere, until they fix or "clear" the Michigan Revocation (which amounts to a "Hold" to an out of State DMV). A "Clearance" is identical in every single respect to a regular Michigan Driver's License Restoration except for one thing:

If a person still lives in Michigan, they can only have their Driver's License "Restored," meaning Michigan will grant them a Restricted License at first. If a person no longer resides in Michigan, the State cannot grant them any kind of License. Instead, it can only "clear" its Revocation on their Driving Record, which, in turn, will allow them to obtain a Driver's License in their new home state.

Continue reading "Michigan Driver's License and Driving Record Holds - Fixing or Clearing the way for an out of State License " »

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June 11, 2012

MIchigan Driver's License Restoration Success - Don't Settle for a Video Hearing

As part of my Practice as a Michigan Driver's License Restoration Lawyer, I always have my License Appeal cases heard live, and in-person. I NEVER conduct a "video Hearing." I schedule each and every one of my Michigan Driver's License Appeal cases for a live, in-person Hearing at the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) in Livonia. In this article, I will review why I think a live Hearing is infinitely superior to one done by video.

Some of this seems pretty obvious. A video Hearing near where one live or works can, of course, be more convenient than a live Hearing much farther away. As it turns out, I could schedule every one of my cases for a video Hearing at a Secretary of State Branch location just down the road from my Office, less than a five minute drive from my parking lot. Yet given what I believe to be the incomparable advantage offered by a live Hearing, I would never settle for convenience over advantage. I gladly make the one-hour drive to Livonia, because that's part of my winning strategy.

bad video copy2.2.jpgThat should count for something. I could charge the exact same Legal Fee and cut about two hours off of my drive time, yet I elect to make the drive anyway. Whatever else, you can believe that it's not that I have some great love for driving...

I do, however, have a great love for winning my Michigan Driver's License Restoration and Clearance Appeals the first time. I have an even greater love for being able to Guarantee a win, and not having to worry about actually backing that up, because I win almost all my Appeals the first time, anyway. I can boast a first time win Record of around 98% because I handle (and ultimately win) more License Appeals in any given year than most Attorneys will ever see in their whole career, which means I not only have tons of experience, but tons of winning experience.

And from all of that experience, I know that in every single respect, a live, in-person Hearing beats a choppy, flickering, grainy, impersonal video Hearing. This really seems like a no-brainer.

In a Michigan Driver's License Restoration Appeal, the two most important issues to be proven (by what is called "Clear and Convincing Evidence") are that the person's alcohol problem "is under control," and that their alcohol problem "is likely to remain under control." Of the two issues, the second is the more difficult to prove, and most often accounts for why so many "do-it-yourself" Appeals, or those handled by some "general" Lawyer, lose the first time.

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June 8, 2012

Michigan DUI Driver's License Revocation, Restorations and FIxes

As a Michigan Driver's License Restoration Lawyer, I receive tons of inquiries about the License Restoration process. These inquiries include every possible scenario one could imagine. My actual License Practice is essentially limited to Restoring Michigan Licenses, or fixing Michigan Driving Records (for out-of-state Clients) for people who have lost their License because of multiple DUI convictions. In this article, we'll examine how multiple DUI cases cause Licenses to be lost.

Almost every day, I receive an email from someone who needs help with a "Suspended License." Often, a few questions later, I learn that they really need help with a License that was "Revoked" because of multiple DUI convictions. That's my specialty. If a person is Sober, and I accept their case, I Guarantee that I will win their Michigan Driver's License Appeal and get them back on the road.

Fixit 1.2.jpgUnfortunately, others see the terms "Michigan Driver's License" and"Appeal" and look no further. Worse yet, most of these people face no real obstacle to reinstating their License beyond owing a lot of money to the State, or a Court, or both. If someone owes money to the Secretary of State for Driver Responsibility Fees, or has outstanding Court Costs or Fines, I cannot help them. They simply need to pay what they owe. Sometimes, they might hope I can "do something" to help them get a License without first paying what they owe, but I cannot. No one can. When the problem is owing money, the solution is paying the money. And if they can't come up with the money they owe elsewhere, how would they hire me, anyway, and for what, to be the courier of their payment?

In that sense, my DUI Practice and my Michigan Driver's License Restoration Practice are interconnected. By extension, License Restoration is always related to DUI, as well.

The number of DUI convictions a person has accumulated is the single most important factor affecting their eligibility to seek Restoration of their License, or to have their Driving Record Cleared. This is actually quite simple, because back in 1999, the State of Michigan adopted new rules regarding multiple Drunk Driving cases under the moniker of "Habitual Offender."

Beginning on January 1, 1999, the State simply counted the number of DUI convictions a person had, and began imposing Driver's License penalties accordingly. At its most basic, it looks like this:

  1. Two DUI's within seven years = License Revoked for one year minimum

  2. Three DUI's within ten years = License Revoked for five years minimum

Continue reading "Michigan DUI Driver's License Revocation, Restorations and FIxes" »

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June 4, 2012

Michigan Driver's License Restoration Win Guaranteed Without WItnesses

In a prior article, I examined why I do not call witnesses for a Michigan Driver's License Restoration Hearing. In my role as a Michigan Driver's License Restoration Lawyer, I am often asked about witnesses. I think it's about time to bring this subject back into the spotlight for another look.

I should preface this discussion by pointing out that I bring some qualified authority to this topic. I handle well over 100 License cases a year, and not only do I win about 98% of them, I have a first time win Guarantee. Part of my success, I think, stems from the fact that I will only accept a Michigan License Restoration or Clearance case for a person who is really and truly Sober. Another important component is that I spend about 3 hours with a new Client just to begin preparing them for the very first step in a Michigan License Reinstatement case: The Substance Abuse Evaluation.

Lady and Judge 1.2.jpgI don't know anyone who handles a fraction of the Michigan Driver's License Restoration cases that I do. Nevertheless, it makes sense to question how I do things. After all, anyone checking out the Michigan Secretary of State's website and information it provides about the Driver Assessment and Appeal Division (DAAD) will see that calling witnesses is permitted. At first blush, it would seem that corroborating or supporting witnesses would be a helpful thing. But they're not. In fact, beyond just not being helpful, witnesses actually create problems, and lots of them, at that.

As a preliminary matter, it must be remembered that when a person files a Request for Hearing and Substance Abuse Evaluation with the Michigan Secretary of State in order to begin a License Restoration Appeal, they must also include Letters of Support. Technically speaking, they must submit at least 3 "good" Letters of Support, and can turn in as many as 6 (in a License Appeal I handled and won last week, we filed nearly 8 such Letters).

To keep this article concise, I will avoid getting into what those Letters of Support must and should include. Instead, the reader can simply assume that the Letters of Support will have been carefully reviewed and edited by me, and then reviewed (and possibly edited) by me yet again. By the time I'm done with them, they will be exactly what they need to be. All those Letters, signed by friends and family and other individuals who can contribute helpful information and observations, will contain everything necessary to help win their Michigan License Appeal Hearing.

This is really important because there is nothing a witness can say in person that he or she cannot say in a Support Letter. Yet there are all kinds of things a witness can be "tricked" into saying that a letter cannot be "tricked" into saying, because letters don't testify. They don't answer questions. They say what they say, and nothing more, and nothing less. You cannot "trick" a letter. You cannot question it. A letter does not get nervous, nor does it make any mistakes. It does not forget things.

Witnesses, however, do all of the above.

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June 1, 2012

Winning a Michigan Driver's License Restoration or Clearance Case - Tears of Joy

At a Michigan Driver's License Restoration Hearing earlier this week, I won a "Clearance" of a Michigan Hold for an out of state Client who had eight (8) prior DUI's, but has been Sober for eighteen (18) years. While there is nothing really extraordinary about this, it was my Client's reaction that has stayed with me these last two days, and the way it has affected me, that leads me to the keyboard to write this article. This article will tie in several themes from the body of other Michigan Driver's License Restoration articles, as well as from my website.

There are several things that all seemed to come together in this case that make it worth talking about. As I noted, the fact that my Client had 8 prior DUI convictions was not really that big of a deal. I have managed first-time wins for Clients with as many as 13 prior DUI's. This should ease some fears or concerns for a person who has 4 or 5 DUI's. That's easy stuff for me.

Smurf Tears 1.2.jpgFirst, and most important of all, my Client was Sober. While there's a lot more to a Michigan License Appeal than just that, there can be no License Appeal without Sobriety. This Client was involved in AA. Most of my Clients are not. I will screen a potential Client to make sure they have enough "clean time" (usually, at LEAST a year, often longer) and that they are, in fact, committed to remain alcohol free. Sometimes that involves being part of AA. Most of the time, and no matter what anyone says to the contrary, it does not.

If I accept a case, I Guarantee that I will win in the first time around, or else I'll go back, without further Legal Fee, until I do. The reality is that I count on winning these the first time around, and make my income doing just that, and not going back to fulfill my Guarantee. I will if I have to, but thankfully, I rarely ever have to go back a second time. I have never had to go back a third.

There is an understandable frustration a person feels if they try a License Appeal on their own, or with some "general" Lawyer and then loses, especially if they are really and truly Sober. As I pointed out above, and as I repeat again and again in my various writings, Sobriety is a first and necessary requirement to win a License Appeal, but it is far from enough. The bottom line is that if these things were easy, I'd be out of business.

A few years before, my Client had tried a License Appeal without me as his Lawyer, and lost. This meant I had to fix those errors or omissions that caused his first Appeal to lose. This triggers a whole host of concerns about what happens when a person tries a Michigan License Appeal on their own, or with some Lawyer who claims to "do" these cases. First amongst those concerns is that they lost, and certainly not for having done everything right. There was a screw up somewhere, and they lost because of it.

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