January 2013 Archives

January 28, 2013

What to do if you Receive an Ignition Interlock Violation in Michigan

Recent changes in Michigan's DUI Laws have impacted the way the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) handles alleged violations while a person in driving on an ignition interlock. This article will skip the long, detailed explanation that is the hallmark of so many of my other articles, and get right into what you should do if you receive a notice of an interlock violation.

First, most violations now involve a person being notified that their License has been Revoked again. Once in a while, a person will receive what's called a "show cause," where they're told to come in on a certain date and attend a Hearing where they will have to show "cause," or proof, why they are not responsible for the alleged violation, and explain why their License shouldn't be taken away. The majority of people, however, open the mail to find that their License already has been pulled, and learn that the only thing they can do about it is file an Appeal. When such a letter is received, the person needs to swing into action.

Interlock 1.3.jpgThe best course of action is to hire me. I know that sounds rather self-serving, but let me explain. In the spirit of being upfront, I'll get right to the cost factor: I charge $1500 to handle one of these cases. Unlike almost everything else I do, where a "consultation" can turn into a half-hour phone call, when a person calls about an interlock violation, I can't go into much detail until and unless they come in to hire me. This is because beyond my telling someone that I can help, and that I have more experience with these matters than I can count, pretty much anything else I can say amounts to "legal advice," and I am on the line (as in liable) for it.

Consider what else is on the line: Your Driver's License. At the point a person has won it back, and is under the state's supervision with an interlock, a violation is a huge deal. Here is the simple truth: The vast majority of the people I speak with have NOT really drank any alcohol (despite a "positive" test) or tampered with the ignition interlock unit. To be brutally honest, most people facing one these violations could probably go in on their own, without me, and successfully handle an Appeal of an interlock violation. But not everyone.

Violation Appeal Hearings are legal proceedings, and evidence counts. I have seen cases wherein I truly believed that the person had not consumed alcohol, or did not intentionally tamper with the device, but because they came up short on the evidence, they lost their License. These, of course, are NOT cases that I have handled. I'm sure every one of these people went in and swore up and down that they didn't drink, or screw around with the device, but cases are decided on the basis of hard evidence. A common example occurs when a person has "work" done on their vehicle, and the interlock company reports that they disconnected or tampered with the unit. In these cases, a general "we worked on Dan the Driver's car on this date" kind of letter is far from good enough.

The interlock companies don't do a very good job on their end, either. I have seen numerous cases where people have called them, in advance, to tell them they were having work done on their cars, and then had the repair facility call afterward, to confirm the work, only to later discover that some utter bonehead from the interlock company didn't follow up and turned them in for a violation. What's worse, once the violation has been submitted, it's too late. In many of these cases, the Clients tried to have the interlock company "undo" or recall the violation, only to find out that even if the company admits it screwed up, the person will still have to file an Appeal and then appear in front of the DAAD.

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January 25, 2013

Michigan Criminal and DUI Lawyer Protects you and your Interests

This article will be about how I really help my Clients not get pounded in a Detroit-area DUI or Criminal case. Sometimes, tired and old worn-out phrases can really get on your nerves and become meaningless to the point that you roll your eyes when you hear them. Around election time last year, when the TV was filled with political ads, I heard enough baloney to the point that I was nauseated. Every politician wanted to protect me, my family, and my rights, even though I'd never heard of them before and haven't heard a thing from them since. I can only wonder what they're doing right now to help protect me...

The same thing, I'm afraid, holds true when Lawyer's talk about "protecting your rights." That's not to say most Lawyers don't actually do that, or at least try to, but the fact of the matter is, if you are facing a DUI or Suspended License or Marijuana case (or any other Criminal charge, for that matter), and you wind up getting hammered with all kinds of classes and counseling and testing and everything else, you won't feel that you had been very "protected."

security-guard-picture 1.2.pngThe first thing to do here is to sort out the difference between protecting your rights and protecting you. "Protecting your rights" is pretty much just a slogan. Think about your rights for a moment. No one is out to steal them. Once in a while the Police act in a way that violates certain of your rights, but by time you ever call a Lawyer about it, it's too late. Consider the right against unlawful search and seizure. Assume the Police conducted an illegal search of Dan the Driver's vehicle and found marijuana. Dan gets charged with a DUI and Possession of Marijuana. He hires Larry the Lawyer to defend him. Both Dan and Larry are angry over the violation of Dan's rights...

Big whoop. Unless Larry can turn back the hands of time, there is no way to "protect" Dan's rights; they've already been violated. Of course, Larry can challenge the admissibility of the evidence, and protect Dan from being convicted as a result of an unlawful search and seizure, but in terms of protecting Dan's rights, it's too late for that.

My point is that it becomes my job to protect my Client. Instead of talking about "rights," we should be talking about "interests." A person can wind up pleading straight up guilty to a charge of Operating While Intoxicated (OWI, or what is commonly called a DUI), and can get slammed with Probation from Hell all the while having some Lawyer make sure none of their rights were violated. Can you imagine a Lawyer, when it comes time to address the Court at Sentencing, saying to the Judge "Your Honor, I am here to make sure that none of my Client's rights are violated"? What could be more meaningless than that?

It's far more important to address the Judge and make sure I get every break in the book for my Client. I need to make every part of the Sentence as easy and lenient as possible. Success in any case is generally measured by what happens to you, and, in the same sense, by what doesn't. Keeping my Client's out of Jail is part of protecting their interests, but it doesn't stop there.

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January 21, 2013

Alcohol Testing Violations in Michigan DUI Cases

In the prevous article, we looked at how alcohol testing as a condition of release from Jail after a DUI Arrest is becoming common in the Courts of Macomb, Oakland and Wayne Counties. Of course, this is done to ensure (or, some might say, force) compliance with a "no drinking" condition of a person's Bond. Testing does not stop once the case draws to a close, however. Testing is very often ordered as a condition of Probation, as well. In fact, if you are required to test as a condition of Bond, you can pretty much count on being required to test through Probation, as well, although there is room to have the Judge make some changes to that, including cutting down the frequency with which you test.

Alcohol testing comes in several different varieties, but the most popular are breath tests (either through PBT's at a testing site, or samples blown into an ignition interlock system), urine tests, and a contraption called a S.C.R.A.M. tether. In general, testing is a lot like voice recognition software; it usually gets things mostly right, but often gets things wrong, and is never perfect. Unlike giving voice commands to your smart-phone, however, and winding up calling the wrong number, a bad alcohol test result can get you thrown in Jail.

Lab Testing 1.3.jpgAs a Michigan DUI Lawyer, I am contacted almost daily about problems with alcohol testing. I get calls about missed tests, bad equipment and positive tests. To be clear, many times the positive (or missed) test means that the person tested was, in fact, drinking, but even then, they need someone to get them out of a jam. Whether it's a false positive, an accurate positive, a missed test, or trouble with the equipment, alcohol testing brings lots of problems, and I have to solve them.

I am hired just about every week by someone who has run into problems with their alcohol testing. These "problems" are either alleged violations of Bond or Probation conditions. To help a Client facing an alcohol testing violation, I have to wear several hats: I have to be a Lawyer, of course, but I also have to have a working scientific and technical knowledge of what's involved in a particular kind of testing, and what can affect the results. This involves knowing, for example, how certain chemicals or medical conditions affect a person's performance on a particular a test, or why a false positive result occurs.

Beyond that, I have to be able to define the issue at hand (meaning bad equipment, bad result, or bad test) and then translate it to the Judge. Doing that means I need to be a diplomat and a negotiator. There are times when a Judge is going to get it wrong, and when I see that coming, I have know how to react to protect my Client. If a Judge refuses to accept that a test result is wrong, then that part of me with "diplomatic" skills won't press on in a way to make the Judge angry. In a Courtroom, I have to argue my case, but never argue with the Judge. Remember, the job at hand is to make things better; however wrong the Judge might be, arguing with him or her will only make things worse.

This is particularly true if the violation is for a positive test result that is accurate, meaning that someone tests positive for alcohol because they really did drink. This happens a lot, and, truth be told, "correct positive" results are a lot more common than "false positives." An accurate positive test result occurs because no one thinks they'll get caught. Either they try and "time" their drinking, or they take a chance that they won't be called in for a test on a certain day, only to find out they called it wrong. In these cases, my whole focus is on damage control. Let's be honest, when anyone in this situation calls me, they have one thing on their mind - staying out of Jail. Unless I get lucky, and find some glaring evidentiary defect in the test (not likely), I'm going to be the only thing that stands between my Client and a stint in the pokey. I need to find the magic spot in such a mess and use it to keep my Client from getting locked up.

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January 18, 2013

Michigan DUI - Alcohol Testing as a Condition of Bond/Release in the Metro-Detroit area

If you are facing a DUI in almost any Oakland County District Court, or a growing number of Macomb or Wayne County District Courts, there is a good chance that, as a condition of your release from Jail after your Arrest, you are required to submit to some form of alcohol testing. No one likes this, as it places a huge burden on the person having to test. It is costly, and always inconvenient. Worse yet, the results are sometimes wrong, tossing innocent people into hot water for "false positives." By the same token, the presumption that a missed test would have produced a positive result can be a nightmare for those who have a legitimate excuse for not being able to make it to a scheduled test.

While it has always been my intent to publish blog articles that are more factual and informative than opinionated, I can feel my blood pressure rising as I begin to broach this topic, and sense that my rather strong feelings about alcohol testing in general, and Pre-Trial alcohol testing in particular, will spill out into this article. I hope the reader will agree with my position, although I doubt that anyone who is under Orders to test is happy about it in the first place, and I might just be "preaching to the choir."

alcohol-test 1.3.jpgI began Practicing Law in 1990. Back then, although DUI's were already considered serious, the societal shift against Drunk Driving was just getting underway, and the impact of things like Mothers Against Drunk Driving (MADD) was just beginning. In the early 90's, a person dealing with the fallout of a 1st Offense DUI would most likely have been Sentenced by the Judge to simply NOT consume ANY alcohol and drive a motor vehicle while on Probation. In other words, the terms of Probation back then allowed a person to have a glass of wine with dinner; they just could not drink and drive. There was no such thing as any kind of "alcohol-testing" until after a person was put on Probation, and even then it was only done on an infrequent and random basis.

Everything changes, though. Soon enough, Judges began Ordering that a person not drink at all while on Probation. To back that up, they'd order "random" PBT's (Portable Breath Tests). Thus, a person on Probation could be called at any time and required to come to the Probation Office and provide a breath sample. But the momentum of the MADD and other anti-alcohol advocates had just begun. (In fact, MADD has transitioned so far away from its original mission that its founder resigned, noting that the group had adopted a message of abstinence and temperance, and had gone way above and beyond just preventing people from driving drunk). The Court system has followed MADD, however, and seems intent on doing far more than just stopping drunk driving. While it makes sense that you can limit drunk driving by simple preventing people from drinking, you could also reduce theft crimes by cutting off everyone's hands at birth...

Then, one day in the not too distant past, some Judge got the idea that it wasn't good enough to just require DUI Driver's to not drink while on Probation. By some jump of logic, an idea was born that things would be better if anyone Arrested for DUI was not only forbidden from drinking anything at all, but that they should have to prove their compliance with that requirement by testing regularly. From this questionable logic we now have an entire testing industry in place to ensure compliance, and the list of Courts that DON'T require such testing is shrinking faster than the Lance Armstrong fan club.

That's where we find ourselves today. I'll skip over the arguments about rights and freedoms and Judicial activism; they all have some merit. There is one theme, however, that comes up again and again whenever the subject of alcohol testing as a condition of Bond is raised, and that's the concept of "innocent until proven guilty." Unfortunately, this notion has to be explained away as legally unfounded, especially when it comes to setting conditions of release after Arrest. This means that there is no actual presumption of innocence, at least as most people think they know it. As we'll see, this means that the alcohol testing as a condition of release is on solid legal ground, however much we don't like it.

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January 14, 2013

The Michigan Driver's License Restoration and Clearance Process - Part 6 - The Hearing

This is the final installment in my abbreviated series about winning back your Michigan Driver's License (or obtaining a Clearance) after having it Revoked for multiple DUI's. After determining eligibility (Part 1), obtaining a rock-solid Substance Abuse Evaluation completed (Part 2), editing and revising the Letters of Support (Part 3), double-checking everything again, make any last minute changes, and then filing the Appeal (Part 4), and then receiving notice of and prepping for the Hearing (Part 5), we will, both figuratively and literally, be walking in to the actual Hearing itself. In this last section, we'll talk about what happens there.

I often try and relax a nervous Client about the Hearing by pointing out that, although it tends to feel like it, the Hearing itself is not some "it all comes down to this!" proposition. In fact, precisely because we will have done all the groundwork with precise attention to detail, and have made sure, by check and re-check, that everything is correct and right and good to go, the Hearing won't be nearly half as bad as one might fear. In reality, the Hearing will mostly be about confirming what has already been submitted to the Driver Assessment and Appeal Division (DAAD) of the Michigan Secretary of State.

Judgey 1.2.gifHearings are scheduled on the hour at 9, 10, and 11 am, and then 1, 2, 3 and 4 pm, Monday through Friday. They are scheduled to last no more than an hour, but most last about a half hour, and I've never been part of one that lasted much more than 45 minutes. As I noted in the previous installment, the irony of this is that my Client and I will usually spend twice as long "prepping" for the Hearing as we will actually conducting it.

And that brings me to a point that I have learned to be rather important. Handling as many cases as I do for people who previously tried a License Appeal with another Lawyer and lost, I was surprised to find out that many of those Lawyer didn't take charge and open the Hearing by asking the first set of questions. Not to be flippant about it, but what are you paying a Lawyer for if he or she doesn't take the lead and start winning your case right from the outset? When someone tells me about a Lawyer who "just sat there," or otherwise didn't ask the very first questions in order to set the direction and tone of the case, I'm reminded of the old saying that there are 3 kinds of people in this world: Those who make things happen, those who watch things happen, and those who wonder what happened. As a Michigan Driver's License Restoration Lawyer, I have be the kind of person who makes things happen, and that has to be a win.

At the appointed hour, the Hearing Officer will call the case, and my Client and I will go from the lobby to the Hearing Room of the particular Hearing Officer to whom the case has been assigned. (I only do live, in-person Hearings. I don't believe in and will NEVER do a video Hearing, and I have every one of my Hearings set for the Livonia Branch of the DAAD). After being seated, the Hearing Officer will open the proceedings with certain preliminary remarks, and then goes through the documents we have previously submitted, identifying each and marking each as an exhibit. Once we're through with that, and everyone has identified himself or herself for the Record, the Client will be sworn in. I then have the opportunity, as Attorney for the Petitioner (that's what someone is called who is Appealing to get their License back before the DAAD) to make an opening statement.

Continue reading "The Michigan Driver's License Restoration and Clearance Process - Part 6 - The Hearing" »

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January 11, 2013

The Michigan Driver's License Restoration (and Clearance) Process - Part 5 - Preparing for the Hearing

In the last installment (Part 4), we essentially concluded the paperwork part of a Michigan Driver's License Restoration Appeal or Clearance case, having gone from determining eligibility (Part 1), completing the Substance Abuse Evaluation (Part 2) and the Letters of Support (Part 3) to preparing and double-checking all the documentation, making sure that it adequately relates a person's Recovery Story, insuring it's complete and ready to file, and then filing it (Part 4). In this installment, we will look at the importance of preparing for the actual Hearing. I call this "prepping."

In the Part 4, I noted that it takes about 6 weeks after the paperwork is filed with the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD), until notice of the Hearing date is received. Usually, the Hearing date is about 2 weeks from the time the notice is received. Over the course of the last 22-plus years, I have refined how I do things, and have found that the best time to do a "prep session" for a License Appeal Hearing is as close to the actual time of the Hearing as possible. Almost all of the time, this means the night before the Hearing, and by telephone.

Telephone 1.2.jpgI have pointed out in numerous other articles that I have all of my cases set for a live, in-person Hearing at the Livonia branch of the DAAD Hearing Office. I do this no matter where a person lives. To underscore how strongly I believe in a live, in-person Hearing, the reader should know that the Secretary of State has a large Branch Office about 4 minutes from my Office, where there is a video terminal at which I could have any or all of my Hearings scheduled. By comparison, the drive to Livonia is nearly an hour from my Office, yet I wouldn't ever consider doing a video Hearing, even if a Client offered to double my Fee for doing it. I don't think twice about driving for nearly an extra hour (two if you count the return trip); it's just what you do if you want to do this right.

By having all of my cases assigned for a Hearing in Livonia, I get to go in front of the same 5 Hearing Officers all the time. I know what they look for in a case. I know how each conducts a Hearing. What is so very important to one Hearing Officer, is, in some cases, beyond irrelevant to another. And amongst them, several will conduct a Hearing one way, and ask a certain set of questions if a person claims to still attend AA, whereas they will ask a different set of questions if a person is not actively involved in AA.

This is all very relevant to the "prep" that I do the night before the Hearing. Who will be Hearing your case is very important to how you prepare for it. This is part of the process that is left to blind luck for anyone going in without a Lawyer, or with a Lawyer who is not a Driver's License Restoration Attorney, or is anything less than a "regular" at the Hearing Office where the case is assigned.

As part of the "prep," I will always have a "homework" or review assignment for my Client the night before their Hearing. I will, of course, have once again gone over their file and its contents, and I am not only going to direct them to do the same, but will point out those facets of their case to which I want them to pay particular attention. Everyone should know their own story, but in a License Appeal case, there are certain aspects of a person's Recovery Story that are more important than others. Beyond the relative importance of one thing over another, it can sometimes be the way things are described in the documentation, or how those documents relate to each other (or not) that can become a key focal point in a License Appeal case, and therefore should be highlighted in the Appeal Hearing. This, of course, is my job. The Client can leave the heavy lifting to me; I will chart the course and direct things.

Continue reading "The Michigan Driver's License Restoration (and Clearance) Process - Part 5 - Preparing for the Hearing" »

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January 7, 2013

The Michigan Driver's License Restoration (and Clearance) Process - Part 4 - Finalizing the Documents

In Part 1 of this series, we observed that a person must be eligible, both in terms of timing and Sobriety, to file a Michigan Driver's License Restoration or Clearance Appeal. In Part 2, we looked at the Substance Abuse Evaluation that must be filed in order to begin a License Appeal, and in Part 3, we examined the importance of the Letters of Support that must be included along with the Evaluation. In this 4th installment, we'll look at the final preparations of the case in terms of how my Staff and I review and finalize the necessary documents that are filed with the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) to request a Hearing. In the next installment (Part 5), we'll review how I prepare my Client for their actual Hearing.

When talking about the License Appeal process, I'm often asked something like "How long does it take?" Depending on how we define and focus that question, the answer varies. If a person is motivated and ready to get their License back, or obtain an out-of-state Clearance, we can squeeze the time from they meet me until the day they sit in front of a Hearing Officer down to 10 weeks. As it stands, once the paperwork is filed with the Driver Assessment and Appeal Division, it takes about 6 weeks to be notified of a Hearing date, and that date is usually about 2 weeks thereafter, meaning it takes about 8 weeks from the time of filing to the time of Hearing.

Pilot 1.2.jpgMost people, however, don't go so fast. Ironically, almost everyone says they will ("I want to get this done as soon as possible..."), but the reality is that most people take a few months from the time they first see me and have their Evaluation completed until everything is ready to file. However long it takes, there is a lot of work that I do in reviewing the Substance Abuse Evaluation and the editing and revising the Letters of Support as they come in. Sooner or later, however, there does come a point when everything is in, and the documents need to be filed.

This is the time for one last review - a final inspection of sorts. Now, the Substance Abuse Evaluation and the Letters of Support need to be read in conjunction with each other as well as the Substance Abuse Evaluation checklist form we will have completed at the time of my first, 3-hour meeting with the Client.

This is the point where I have to make sure that everything "fits," and there are no inconsistencies amongst the information presented in the documents. Beyond that, it can be misleading, or kind of misses the point to simply say that there has to be consistency within the information provided, particularly with respect to dates. In fact, sometimes, rather than speaking about "consistency," it is more appropriate to speak of there not being any inconsistencies. This really applies when someone gets a Letter of Support from a close family member who knew the person when they were drinking and watched as they quit drinking,and transitioned from drinker to non-drinker, as compared to a letter from a newer friend (or co-worker or neighbor or the like) who did not know the person back when they were drinking, and has only known them for a short time, and as a non-drinker.

The "double-checking" process isn't really much different than when an airplane Pilot and Co-Pilot sit in the cockpit and do a final inspection of the plane's systems before taking off. Undoubtedly, the plane has already been serviced and cleared by the mechanics, but redundancy is still the best way to make sure nothing has been missed, and the value of such redundant checks is highlighted every time some small thing that was somehow overlooked is discovered at the last minute.

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January 4, 2013

The Michigan Driver's License Restoration (and Clearance) Process - Part 3 - The Letters of Support

In Part 1 of this series, we outlined what it takes to be eligible to file a License Appeal, and in Part 2, we examined the Substance Abuse Evaluation that must be filed as part of the documentary package that has to be submitted to the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) to begin a Michigan Driver's License Restoration or Clearance Appeal. Here, in Part 3, we'll talk about the Letters of Support that must also be filed, along with the Substance Abuse Evaluation, as part of that documentary package to begin a formal License Appeal.

The Letters of Support are really the hardest component of a License Appeal to describe, much less summarize. To simplify things, it is one of my primary responsibilities, as the Lawyer, to read, edit, revise (and perhaps even re-edit) the letters until they're perfect. This means that I take what my Client gives me, and go from there. I am far less interested in someone handing me a letter that they think is "good to go" than I am that they just hand me something I can get to work on. I spend a lot of time working on the Letters of Support, so it's just better that I begin with something, however imperfect, rather than wait for some "better effort." I tell my Clients that their job is to get me some words on a sheet of paper, and I'll take it from there.

Boy Writing 2.1.pngThere's a reason for that. The Letters of Support play a vital role in a Michigan Driver's License Appeal. In fact, problems with the Letters of Support are about the second most common reason a License Appeal is Denied. Frequently, someone who provides a Letter of Support lapses into writing a "good guy" letter about how good and kind the person for whom they're writing it really is. Sometimes, the writer will point out how difficult it has been for the person to get around, or go to school, or keep a job, or whatever else they do, without the ability to drive.

None of this matters at all. To be blunt about it, no description of how nice you are, or how hard it's been on you without a License matters a bit to the Secretary of State in a License Appeal case. Being a nice person, or having a tough time because you can't drive could not matter less...

The Letters of Support have a very specific purpose, and that's to provide verification of the legal requirement that the person prove, "by clear and convincing evidence," that their "alcohol problem...is under control." In other words, the Letters of Support have to help prove that a person has quit drinking. That's it. Anything more is a waste of ink, and anything less is a waste of paper.

Another mistake I see rather often comes from the "helpful" letter writer. This kind of writer thinks they're helping by describing the person as NOT having been a big drinker. Often, they deny having seen the person out of control with their drinking. Sometimes, they express surprise that the person had multiple DUI's. In their minds, they think they're creating a positive impression. In reality, they're doing just the opposite.

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