February 2013 Archives

February 25, 2013

The Cerebral Michigan DUI Client

This article has been a long time in the making. One of the delights that I have as a Michigan DUI Lawyer Practicing in the Detroit-area is that most of my Clients find me as a result of doing their homework. I write extensively about how the DUI process moves along, how evidence is collected and evaluated, and how the Court system focuses the person's relationship to alcohol, to the point really, of separating the person from alcohol, at least while they're under the Court's jurisdiction. My Clients are readers. They respond to analysis, and often have thoughtful questions beyond "what's going to happen...?" To put it another way, I try and appeal to those for whom thinking is an asset.

The end result is, rather candidly, that I have a better class of Clients than many of my peers. And while that means things go well when I have a "thinking Client," it also means that my approach does NOT mesh particularly well with those who don't want to do any thinking, or don't often do much thinking, or otherwise just want to hand the keys over to some Lawyer and let him or her take care of everything. That may work if you hire an interior designer, or take your car to the mechanic and just say, "fix it," but in order to produce the best outcome in a DUI case, such a mindset is, at least to me, a pure liability.

einstein 1.2.jpgIf you are to facing a DUI charge and are lucky enough that there is some problem with evidence in the case, or how it was collected, then they "fix it" kind of Lawyer won't be a problem. Most people aren't so lucky, however. Consider this cold, hard fact: In 2011, there were 54,291 alcohol and Drug-Driving charges brought in Michigan. Of those, only 95 were beaten at Trial. Do that math. That's .17 %. That's LESS than two-tenths of one percent. If you're going to hire a DUI Lawyer and that's your plan, well, good luck with that.

If you have enough cerebral horsepower to contemplate another possible result in your case, then you're going to need a Lawyer who can help minimize the consequences. That's a rather broad statement, so we need to put some meaning to "minimize the consequences." Beyond just making things better, minimizing consequences means actually having a positive impact on crucial aspects of the case that will directly affect what happens to you.

In that sense, it means seeing if there is a way to force the Prosecutor's hand to drop the alcohol-related charge to a much less serious, non-alcohol related offense. If not that, then it can mean reducing the original OWI charge to something far more benign. Whatever happens there, it almost always means dealing with an alcohol assessment. This is a part of every DUI case that is required by Law. Prior to being Sentenced in any DUI case, a person has to undergo a mandatory alcohol assessment test. This is handled, in every Macomb, Oakland and Wayne County Court, by the Probation Department. The test itself is a written instrument theoretically designed to fix a person's place on an alcohol use continuum from normal, non-problematic drinker to problem drinker right up to late stage, chronic alcohol dependence. Doing well or poorly here will affect what actually happens to you more than anything else.

The alcohol assessment test is administered by a Probation Officer, who then "scores" it, and comes up with what essentially amounts to a diagnosis by fixing the person's place on that alcohol-use continuum. The problem is that someone can only really make a "proper" diagnosis if they have formal training (usually noted by the CAC, CAAC or similar credentials) in the alcohol and addiction Counseling field. Here's where I can help a lot more than any other Lawyer; I study this stuff. And I don't mean that I have read a few books on the subject, either. I am enrolled in the formal, post-graduate University level study of this subject. This has been a passion of mine for a long time (and before you even roll your eyes, don't you hope your Dentist is interested in things like permanent adhesives, enamel and filling materials?). It relates directly to what I do every day as a DUI Lawyer and a Driver's License Restoration Lawyer, where a person's use of and relationship to alcohol is the focal point of the case.

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February 22, 2013

Being Sober and Getting Your License Back - Michigan License Restoration

To win a Michigan Driver's License Restoration Appeal, you have to be Sober. It's been a while since I've written about this topic, and the number of recent inquiries from those who want to get their License back but haven't yet quit drinking means it's time to address it again. If you've had your License Revoked for multiple DUI's, you cannot get it back until you go through a process called a License Restoration. This is done through the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD), and requires certain legal documentation just to get started.

The most critical of those documents is the Substance Abuse Evaluation, which is a state form that needs to be completed by an accredited Substance Abuse Counselor. The form is completed as part of what really is a larger, clinical evaluation. Although the form is entitled a "Substance Abuse Evaluation," it is really just a summary listing of the more salient points learned during the actual evaluation. And for all of the information required to complete the Evaluation form, the key is that you are Sober, and will remain that way.

My Worst Day in Sobriety 1.2.jpgIn other articles, and on my website, I examine the License Restoration process and the numerous things that one must do to begin a License Appeal. In the interests of brevity, this article will focus on the key issue that is critical even before a person begins thinking "License Appeal." Being legally eligible to file a License Appeal has nothing to do with the most important eligibility requirement: Sobriety.

Of all the things a person must prove to win their License back, nothing comes close to having to prove Sobriety. I am sometimes asked by those trying to handle their own License Appeal, "How do I prove Sobriety?" I don't know how to tell anyone else to do it, but I know how to do it. It's what I do every day, and I do it well enough to Guarantee that I will win any License Appeal I handle. Whatever the recipe for proving Sobriety, you can't even begin to think about proving it unless you've gotten it, first.

The term "Sobriety" can have a few meanings, but within the context of a License Appeal, it has one specific meaning. If you're reading this, and you're really Sober, then you know what it means. If you are in, or have been to AA, and understand that you cannot drink again, then you understand Sobriety. If you think not having consumed alcohol today, or just not being inebriated has anything to do with real Sobriety, then you're lost...

My Office gets calls almost every day from people who have lost their License for multiple Drunk Driving convictions, but say they can still drink, or that they only have an occasional glass of wine with dinner, or that they have a beer or two every now and then. These people consider themselves "sober" because to them, that just means "not drunk."

To be Sober, in the sense that you can even begin thinking seriously about winning a License or Clearance (meaning an out of state case with a Michigan "hold") Appeal, you have to have decided to quit drinking. Permanently. You have to have, as the AA people say, "put the plug in the jug." You have to have made the decision to eliminate alcohol from your life, and live an alcohol-free lifestyle. And if you've done that, then you know every part of your life is immeasurably better now...

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February 18, 2013

What do you want to Happen in your Detroit-Area DUI case?

With more than 22 years of handling DUI cases in Macomb, Oakland and Wayne Counties under my belt, I know pretty much how a DUI case is likely to play out as soon as I've seen all the evidence. When a Client hires me after having been Arrested for a Drunk Driving charge, particularly when there is an accident involved, or they wound up in a ditch, it doesn't take a rocket scientist to figure out the case isn't likely to just go away. Some people will waste piles of money chasing false hopes and betting on legal strategies and tactics that only work out on paper, but never in real life. Unfortunately, there are enough Lawyers hungry for work to feed into those dreams, and they make a lot of money while doing it. But let's not let Lawyers be the only ones dumped on here; there are as many plastic surgeons out there raking in the cash by doing various injections and procedures with the promise of making everyone beautiful.

Let's face facts; if you're grossly overweight and wrinkled and otherwise weren't born with movie star looks, a brow lift and some liposuction isn't going to make you one of People Magazine's "50 Most Beautiful People." Yet hopefuls line up everyday to buy into what they want to see, rather than seeing the truth. Ditto for DUI cases. People will pay endless amounts of money to buy into the hope that their case is somehow going to be magically dismissed when there is about zero chance that it actually will.

 Cuffs 1.4.jpgTo be clear, I get cases "knocked out" all the time. But this can't happen in every case, nor does it happen just because you really want it to. If you're in the ditch, and the Police have to wake you up while you're sleeping behind the wheel, it's probably not a wise decision to spend your hard-earned money trying to beat that kind of case, unless there is an honest problem with the breath or blood test. Naturally, everyone hopes to have their case "knocked out," in the same way that everyone wants to be a millionaire, or wants to be beautiful and famous and special. Just wanting something doesn't make it happen, though.

Looking for a DUI Lawyer is a lot like looking for a job. You have to define what you're really looking for, and what you'll be happy with. In the world of DUI cases, a person is going to have to temper what they want with a healthy dose of reality. You need to do some homework. There isn't one Lawyer out there who is the right Lawyer for everyone. Representing a person involves (or at least should involve) heavy-duty communications and, at least for a time, a close working relationship.

Consider the relationship between a Patient and his or her Heart Surgeon; there is little to no emphasis on communication or a working relationship, precisely because there doesn't need to be. If you're the patient, you're draped on the operating table so the Doctor only sees the area he's working on (ever wonder why they do that? Now you know...) and doesn't get caught up in anything but the mechanical, technical aspect of the task to be accomplished. It does no good to have the Surgeon see that the patient is young or old, male or female; it's a chest cavity that needs to be opened and a heart that needs to be fixed. If your Surgeon is a nice person, all the better. If he is a jerk, but saves your life, it couldn't matter less, really. It's not like you have to have long, deep conversations with your Heart Surgeon, or agree on a strategy other than "fix it and sew me back up."

It's nearly the opposite in a Lawyer-Client relationship. If there is any hesitation to communicate fully or clearly on either side, then things only go downhill from there. Very often, this is more the Lawyer's fault rather than the Client's. Particularly in the case of younger, or inexperienced Lawyers, there is a reticence to dash the Client's hopes, and a feeling of not wanting to disappoint the Client, or, worse yet, lose the Client by telling them something they don't want to hear. Yet that is only a recipe for more disappointment, down the road. If you're facing a DUI, you need to be rather honest with yourself to help you find the right Lawyer:

Continue reading "What do you want to Happen in your Detroit-Area DUI case?" »

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February 15, 2013

How AA Helps a Michigan Driver's License Restoration Appeal, Even if You Don't Go

Within many of the articles on this blog, and in various places on my website, I often point out that being currently involved in AA is absolutely NOT required to win a Michigan Driver's License Restoration Appeal. I go to great lengths to make clear that more than one-half of my Clients are NOT actively involved in AA at the time we begin the License Appeal process. Just by the numbers, however, the majority of my Clients have had, at some point in their lives, at least a little contact with AA. Even though this may have been what seems like a million years ago, having had any spent any time in AA, however far back in your past, can really help in a Michigan License Appeal.

Before I explain, let me reassure the reader who has never been to AA that, while helpful, past AA attendance is absolutely not necessary to win a License Restoration case. Remember, if I represent you, I guarantee a win, and AA attendance does not figure into that at all.

AA Poster 1.2.jpgAs a point of interest (actually, of great interest to me), it is generally accepted in academic circles that the Judicial system (and the Michigan Secretary of State's Driver Assessment and Appeal Division falls into that category) is 10 to 20 years behind the times in terms of understanding and using modern treatment protocols in alcohol and drug-related cases. This means that the modern trend in alcohol treatment has long ago moved away from the "AA for everybody," one-size-fits-all type approach to dealing with alcohol problems, having evolved instead to an approach that utilizes treatment tailored to the needs of the individual. The DAAD is, at least, beginning to catch up...

Yet as far along as new treatment ideas have evolved, AA remains an anchor in the whole conceptual world of Recovery and Sobriety. The notion that the only viable method for overcoming a drinking problem was to seat the drinkers around a table to tell their stories and work the 12 steps seems simple-minded now, but for a long time, it was the only thing that did work, and the only protocol for which there was demonstrated success. In the same way, certain surgeries that used to be invasive and involve lots of cutting, stitching, hospital stays and long-term healing have been replaced by much more efficient methods, including out-patient, minimally invasive procedures that have a person home for dinner that same day with a "butterfly stitch" in the place where the old-fashioned "zipper" used to be. Things change....

Perhaps the most important "gift" of AA is that, by and large, at least to people like me, who deal with DUI's, Revoked Licenses and people still struggling with an alcohol problem on the one hand, and those who have overcome a drinking problem, on the other, AA has given us the "language" of Recovery. It's hard to avoid talking about recovery from a drinking problem and not use some AA terms. And of all the AA terms out there, the granddaddy of them all is "the first step."

AA's first step has become so ubiquitous (meaning found everywhere) that the very phrase "the first step" has taken on a meaning all its own. For example, if your friend goes out and buys nicotine patches in preparation to stop smoking, you would likely congratulate him or her for recognizing that smoking was a problem, and deciding to do something about it. You'd tell that friend that recognizing the need to quit was a good "first step." While this rather misses the real point of AA's first step ("Came to believe we were powerless over alcohol, and that our lives were unmanageable"), it does serve to show how AA has become part of our culture.

Continue reading " How AA Helps a Michigan Driver's License Restoration Appeal, Even if You Don't Go" »

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February 11, 2013

Michigan Driver's License Restoration - Full or Restricted License

In my role as a Michigan Driver's License Restoration Lawyer, there are certain questions that I am asked almost daily. One of, if not the most common question asked of me is whether or not a person who wins a License Restoration or Clearance case can skip the Restricted License and obtain a Full License, instead. Given how a blog will "archive" older articles, it's about time that I come back to the topic about Restricted Licenses versus Full Licenses after a person wins their Driver's License Appeal. The answer itself is rather simple, but even after hearing it, many people want to ask the question again, or ask it differently, as if that might bring about a different response.

If you are a Michigan resident and you win a Driver's License Restoration Appeal after having your License Revoked for multiple DUI's (and/or Substance Abuse related convictions), you MUST, as in NO EXCEPTIONS, drive the first year on a Restricted License with an ignition interlock. That answer is simple, but the questions that follow can get complex. The answer is different, however, for those who no longer live in Michigan. We'll get to that later.

Carlock 1.3.jpgThere are no exceptions to the Restricted License requirement. It does not matter how much a person needs a Full License, nor does it matter how much a Restricted License doesn't "work," the Law is clear and absolute on this score.

"Restricted" means 1 of 2 things:

1. The most common Restricted License is purpose-based, and is NOT limited by way of any time of day or night. It allows a person to drive to, from and during the course of employment, to and from school, to and from any support groups (like AA), and to and from any necessary medical treatment. This means that if the boss calls at 3 in morning and demands that you come into work, that's allowed. It also, means, however, that there is NO ability to take the kids to school, go grocery shopping, or drive to Cousin Carrie's wedding.

2. In certain cases, the state will allow a Restricted License that is time-based, and is unlimited in purpose (meaning a person can take the kids to school, can go grocery shopping or drive to Cousin Carrie's wedding) but is limited by time. Thus, such a License will allow a person to drive for any reason during certain, specified hours. There is no ability to drive before or after the specified hours, however, for any purpose. Those hours are usually rather limited, and are not wide-ranging. These "from-to" hours based Restricted Licenses don't allow 16 or 18-hour days. Thus, a person can forget about being able to drive from 6 am to 10 pm. Normally, a person on such a License cannot drive after 7 or 8 pm.

No matter whether a person has a Restricted License that is purpose-based or time-based, they will have to drive with an ignition interlock unit in their vehicle for 12 full months before they can even ask to have it removed. This is also mandatory. If you travel for work, and need to rent a car, you're out of luck. If you have to drive a company vehicle, then any such vehicle has to have an ignition interlock in it. A Michigan resident who wins a License Appeal cannot operate any vehicle without an ignition interlock until the Michigan Secretary of State's Driver Assessment and Appeal Division (now the DAAD, but sometimes referred to by its old name, the DLAD) allows it to be removed. As I noted above, this can only happen after a person has driven on the Restricted License, using the interlock, for one full year.

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February 8, 2013

Michigan DUI - Location Matters

As a DUI Lawyer who handles Drunk Driving cases exclusively in the Courts of Macomb, Oakland and Wayne Counties, I have extensive experience in a limited number of Courts. This is an asset, in the same way that a Cardiac Surgeon has extensive surgical experience on a limited part of the human body. It is because of that repeat experience in the same Courts that I can explain, with a high degree of accuracy, what is going to happen in any given case.

Inherent in this is the fact that every Court is different. But there's more than just that; things can play out very differently in the same Court depending on to which Judge a DUI case is assigned . In the 47th District Court in Farmington Hills, for example, Judge Marla Parker runs a Sobriety Court, while her counterpart, Judge James Brady, does not. Judge Brady will not transfer cases to Judge Parker. This means if you have a 2nd Offense DUI in the 47th District Court, the ability to get into Sobriety Court and keep your Driver's License depends entirely on the Judge to whom your case is assigned.

location 1.2.jpgThis is a bit of an extreme example, but it serves to underscore the larger point that where a DUI case is pending is one of the most important factors affecting it. In fact, with the exception of legal issues related to the admissibility of the evidence, the location of a DUI is the single most determinant of how things will play out. To that end, unless a DUI charge is "knocked out" somehow, what will happen to you depends in very large part on where your charge is brought.

I'm sure these local differences are the same all over the state, but my experience is limited to the Tri-County area of Metro-Detroit. If you have a DUI pending in any Macomb County, Oakland County or Wayne County Court, then you probably already know, or will soon enough, at least, that there are some rather stark differences between them. Once a DUI Arrest has taken place, it's obviously too late to do anything about that. Besides, no one ever plans on getting a DUI. It's not like someone is thinking about going out to pick up a Drunk Driving charge in one County, but not in another. In a very real way, a DUI charge is always an accident of geography.

That said, if you're going to have this kind of "accident", you'll fare much better if it's in a city in Macomb or Wayne County. If you check around even the slightest bit, you'll find that Oakland County is just much "tougher," in multiple ways, than either Macomb or Wayne County in DUI cases. Yet even within Oakland, or any given County, for that matter, there are vast differences from Court to Court.

Macomb County Courts take a far more "real world" view of DUI cases. While no one would argue that anyplace is getting easier on DUI cases, the fact, and I do mean FACT, is that for all the increased penalties and money sanctions that have been poured over the whole DUI landscape over the past 2 decades, there has been no, as in ZERO appreciable decrease in DUI's. Additional License penalties and more expensive fees, fines and costs don't have the effect of preventing or deterring DUI's, they just make life more difficult for those people who make a mistake and get caught driving after having had a few too many.

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February 4, 2013

Michigan Driver's License Clearance - Administrative Review Guaranteed Win

After years of looking for a way to handle out-of-state Driver's License Clearance Appeals without the return trips to Michigan and being able to still guarantee a win, as I do with regular License Appeals that require a person appear for an actual Hearing, I've finally found one. At first, this appears to contradict my strong position that these "Appeals by mail," called Administrative Reviews, are generally losing propositions. The challenge, then, was to find away around the odds, and be able to do that well enough to still guarantee a winning result. I've met the challenge and fixed that problem.

Nothing will ever convince me that there is a better way to handle an out-of-state License Clearance Appeal than coming back to Michigan. I have that process down to a science. But I have also come to understand that making 2 trips back to Michigan to do this can just be too much for many people. For some, it's cost prohibitive, while for others, it's a lack of time, rather than funds. Whatever the reasons, there are a lot of people who simply cannot or will not make the 2 trips back to Michigan. In recognition of that, I've struggled to find a way to help them and still be able to offer a win Guarantee.

cup 1.3.jpgIt would have been rather easy for me to offer some unguaranteed plan to handle an Administrative Review. In fact, most people "wing" these on their own, which no doubt accounts for the overwhelmingly unfavorable results (3 out of 4 lose). Yet my goal is always to win, and beyond just talking a good game, I wouldn't think of doing anything that I couldn't back up with a Guarantee.

A number of logistical challenges had to be put to rest before I could even get to the more substantive issues. I'll spare the reader the minutia of all that, and move on to the most important issue, and how I came to resolve that.

This was the problem of the Substance Abuse Evaluation. I have noted many times that most Substance Abuse Counselors in Michigan don't know how to do them properly. That's not a knock to them; unless an Evaluator has received careful and specific instruction as to how to properly fill out Michigan's form, emphasis on certain areas will be overlooked, and likely misplaced in others. The form itself only looks self-explanatory; it's not. In reality, it's more like a minefield.

I have to meet with a new Client for 3 hours just to prepare them to undergo this Evaluation. If you come to Michigan, we'll meet in my Office for 3 hours. From there, you'll go to a local Clinic to have your Evaluation completed. If you hire me for an Administrative Review, we still need to do the 3 hour thing, but we can do it by Skype or by phone. These first "meetings" will be done during regular business hours (eastern standard time) and will be just like a regular appointment in my Office. My staff will forward a folder of material to you before our first meeting. This way, when we undertake that "meeting," you'll have various forms in front of you so that we can go over them during our initial 3 hours together. When we're done, I'll instruct you to find an Evaluator, local to you, who will do the Michigan Evaluation under my direction and guidance.

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February 1, 2013

DUI Breathalyzer Refusal - Avoiding a Suspended License

If you are facing a Suspended License for having refused to take the Breathalyzer test as part of a DUI Arrest, I can get you back on the road. Beyond all the considerations involved in how and why a person receives an "Officers Report of Refusal to Submit to a Chemical Test," the bottom line is that some people wind up facing some form of a "breathalyzer refusal." This is the more serious refusal to take a breath test at the Police Station. Unlike the refusal to take a Preliminary Breath Test (PBT), which can only result in a Civil Infraction, a real Breathalyzer Refusal is written up on a person's Michigan Temporary Driving Permit as "Officer's Report of Refusal to Submit to Chemical Test."

If you have received this, you have 14 days to request a Hearing before the Secretary of State' Driver Assessment and Appeal Division (instructions are on the back side of your Temporary Driving Permit) or else your License will be Suspended for a year. If the 14 days have passed, your License will be (or may have already been) Suspended for a year. In the real world, this generally only matters in 1st Offense cases. If a person is facing a 2nd Offense within 7 years, or a 3rd within 10 years, unless they beat the whole DUI charge, their License will be Revoked, anyway, so "fighting" this really amounts to little more than a short delay of the inevitable.

Coprbeath 2.1.jpgIt goes without saying that, in cases where the 14 days haven't yet passed, I look these over rather carefully to make sure the refusal can "stick." Sometimes, it is worthwhile for me to be retained to show up and contest a refusal. Most of the time, however, it's a waste of money, and unless there is information to be gained through the cross examination of the Police Officer that may prove useful in the underlying DUI case, this can serve as a textbook example of throwing good money after bad.

If the DUI case appears solid and there is really no basis to challenge the refusal, I'll simply tell my Client to show up for the Hearing at the Secretary of State Branch Office on the off chance that the Officer does not, in which case the whole thing is dismissed and the person's License is secure. If the Officer does show, and unless I have determined that there is a real problem in the case, the outcome is pretty much predetermined.

Remember, the vast majority of refusals are upheld because, in the vast majority of cases, there is no adequate legal excuse for failing to take the test, as required by law. This is part of Michigan's implied consent law, and the requirement that a person submit to a chemical breath test is set in stone. The ONLY way to win one of these cases is to prevail on one of the 4 issues set forth on the reverse side of the Officer's Report form. Not to be funny about it, but in answer to a question I'm asked often enough, being drunk doesn't count as an excuse.

Let's skip forward - unless you win at the Secretary of State (and really, good luck with that), you're going to need to get your License back, and I can do that. I can take the matter to Court and have a Judge override your Suspension and get you back on the road. This is true whether you did nothing, and just let the state Suspend your License, or you went to a Secretary of State Hearing and lost. Either way, I can undo the Suspension of your License...

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