July 2013 Archives

July 26, 2013

Michigan Driver's License Restoration - The First Principle of Winning your License back

As a Michigan driver's license restoration lawyer, I deal with people at all stages of losing their licenses for multiple DUI's. As a Michigan DUI lawyer, I am there from the moment someone first loses his or her license; thereafter, I switch roles, and, as a license appeal attorney, go to work on getting my client back on the road. I've published a lot of information about the Michigan license restoration process. Much of the information on my website is broken down step-by-step, while many of the articles on this blog are focused on very specific aspects of the license restoration process. This article will be more of a summary overview of how the Michigan Secretary of States' Driver Assessment and Appeal Division (DAAD) sees the license restoration process. Rather than revisit the "process" part of things, we'll look more at the reasons things are the way they are. It is critically important to understand how the people who will decide your case see things.

First, you must remember that, under Michigan law, once you've been convicted of 2 DUI's within 7years, or 3 within 10 years, you're labeled a "habitual offender." That means in the case of a 2nd DUI within 7 years, your driver's license will be revoked for a minimum of 1 year; if you've picked up your 3rd DUI within 10 years, the Michigan Secretary of State will revoke your license for a minimum of 5 years. If that's not enough, being a "habitual offender" means that the law presumes you have an alcohol problem. In order to win your license back, you'll have to prove that your alcohol problem is under control, and also that it is likely to remain under control. As I often like to do, let's draw the curtain back a bit and get a look at things from the other side - in this case, the hearing officer's.

curtain 3.1.jpgHere we encounter what amounts to the biggest obstacle for many people trying to win a Michigan driver's license restoration or clearance appeal, that you have an alcohol problem. I've written rather extensively about this in many of my other articles, but here, I'll just get straight to the point; if you have 2 DUI convictions within 7 years (or, wore yet, 3 or more within 10 years) and you think you can win your license back by saying you don't have a drinking problem, you're in a for a rude awakening. There is no room for negotiation here, because not only does the law give rise to a presumption that you have a drinking problem, but no one with the authority to give a license back will ever, as long as the sun rises, agree that you don't. Some people bang their heads into the wall for years by filing appeal after appeal and trying to assert that, despite their multiple DUI's, their drinking isn't a problem. Eventually, when they've lost enough times, at least some of these people come around to realize that as long as they keep trying the "I don't have a drinking problem" refrain, they'll never win their license back.

Knowing how the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) sees this is important, but there is more to the story than just understanding the DAAD's perspective, and position. If we take a step back and look a little deeper, we can see why the DAAD applies and interprets its rules as it does. While I think there are plenty of examples of how the DAAD is off the mark, I don't really have any quarrel with them on this main point about a drinking problem.

For example, even if Dan the driver really isn't much of a drinker, if he got caught driving drunk on one occasion, spent enough money in fines, costs, insurance increases and other related expenses to buy a first class home theater system, went through holy hell with the court, and, instead of not making the same mistake again, as the overwhelming majority of people manage to do, he goes out and gets another DUI, then from the state's point of view, and really, from the whole of society's point of view, he has a drinking problem. While the meaning is essentially the same, we can certainly say that he has a problem with his drinking. At a minimum, Dan is risky. While it always seems different when it's your case, or when in concerns someone you know well, who, really, would give a license back to a complete stranger with such a record? To put it another way, people like Dan are just seen as far too risky.

Continue reading "Michigan Driver's License Restoration - The First Principle of Winning your License back" »

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July 15, 2013

Michigan DUI - The Arraignment After a Drunk Driving Arrest in the Detroit area - Part 2

In part 1 of this article, we began exploring the arraignment stage in Michigan DUI cases. In my role as a Detroit DUI lawyer, meaning a DUI attorney who exclusively handles drunk driving cases in the Tri-County, Metropolitan Detroit area, I have learned that OWI (in Michigan, "DUI" really means "OWI," or Operating While Intoxicated) cases are often handled differently between one court and another, and that begins with the arraignment. As we'll see in our continuing examination, if you're arrested for a DUI in Clinton Township or Sterling Heights, for example, you most likely will not have to go to court to be arraigned as you would if your DUI case occurs in Novi, or Royal Oak.

We then noted that an arraignment serves three main purposes, and we looked at the first two of those: Informing the person of the exact charge being made against him or her, and setting bond and bond conditions. In this installment, we'll pick up by looking at the third main purpose of an arraignment, advising the charged person of his or her rights, and then we'll see how in some cases, and in some courts, the whole arraignment stage can be "waived," or skipped completely.

Handy Judge 1.2.jpgAs I just noted, the third main purpose of an arraignment is to advise a person of his or her rights. Either the person will be given a form, called an "Advice of Rights," to read and sign, or the Judge or Magistrate will verbally advise the person of his or her rights, most often, just by reading them off the Advice of Rights form. In the real world, this comes down to a more detailed outline of the "rights" you hear read on TV and in the movies. Principal amongst these rights is the right to remain silent, to be presumed innocent, and to have an attorney appointed for you if you cannot afford your own.

In practice, most people acknowledge understanding these rights without having the faintest idea of what they've just heard or read. This isn't anything to worry about, and is really not much different than when someone signs a "consent" form for treatment before having a medical procedure. Even so, as much as signing a consent form is a prerequisite to treatment, acknowledging that you've been advised of your rights is a perquisite to moving forward in a DUI case, or any criminal case, for that matter. The real "take away" from your rights is that you need to "get a lawyer." To the extent that anyone has any kind of pre-existing or useful understanding of his or her rights, it should be to remain silent (beyond pleading "not guilty") and not to do or say anything until you get an attorney.

It is important to differentiate these constitutional rights that must be acknowledged in court from the "rights" that the police are supposed to read at the time of your arrest. In fact, one of the most frequently misunderstood issues surrounding a DUI arrest is that the police didn't advise you of your "rights" when you were arrested. In a DUI case, your arrest rights, principal amongst them being the right to remain silent, don't really matter. By contrast, the police are required to advise you of your chemical test (breath or blood test) rights, but your arrest rights and chemical test rights are fundamentally different than the constitutional rights the Judge or Magistrate must address at your arraignment.

Continue reading "Michigan DUI - The Arraignment After a Drunk Driving Arrest in the Detroit area - Part 2" »

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July 12, 2013

Michigan DUI - The Arraignment After a Drunk Driving Arrest in the Detroit area - Part 1

In my role as a Detroit area DUI lawyer, everyone that comes to my office to hire me has either already been arraigned for a Michigan Operating While Intoxicated (OWI) charge, or is awaiting their arraignment date. This article will try and explain the meaning of an "arraignment," as well as what's involved. Before we get to that, it might first help to clarify a few terms. In Michigan, a drunk driving charge is technically called "Operating While Intoxicated." The correct abbreviation for that is "OWI." Even so, just about everyone in the world refers to a drunk driving charge as a "DUI," which is short for "driving under the influence." To be clear, there is no such legal charge in Michigan as a DUI, but since everyone just calls it that, there's no point in being different. As the old saying goes, "if you can't beat 'em, join 'em."

I have often referred to a DUI charge as "an accident of geography." While it's probably the same everywhere, I know, from more than 20 years as a Michigan DUI lawyer, that where a case occurs is very often the single biggest factor in how things will play out. Since my DUI practice is exclusive to Metropolitan Detroit Tri-County area, meaning Macomb, Oakland and Wayne counties, I know, for example, how very different a Rochester DUI will be from a New Baltimore DUI. Location matters. Shelby Township may only be 11 miles away from Troy in terms of measurable distance, but they are worlds apart in the how each treats a person facing a DUI. Beyond the fact that certain cities are just plain tougher than others, every court in the Metropolitan Detroit area has its own way of doing things, and these differences begin showing up right after, and in some cases, even before you're let out of jail following your arrest.

Arraignment 1.2.jpgSometimes, you will be arraigned even before your initial release from jail. We'll come back to this, but if this has already happened to you, then while you may not fully recall nor understand what went on, you at least have a general ideal of what an "arraignment" is all about. If you have not yet been arraigned, or, in retrospect, it all happened so fast that you don't have any real understanding of what took place, it will be helpful to explain what an arraignment is all about. While a thorough examination of this subject could fill a textbook, my goal here is to at least make clear the purpose and reality of an arraignment in a Michigan DUI case as it happens in real life, and as it happens in the courts of the Metro Detroit area.

An arraignment is the formal beginning of a criminal case. At an arraignment, the person who has been arrested for a is formally charged with an offense, and, as a result of being "charged," becomes a "defendant." Being a defendant means that you have to "defend" against the charge made against you. Thus, being arrested for a DUI doesn't really begin the criminal case, but being arraigned after the arrest does. To put it another way, until there has been an arraignment, there is no actual case.

While there's actually a lot to the arraignment stage in a DUI case, the arraignment itself serves three primary purposes. We'll look at each of these purposes in turn, covering the first and second purposes in part 1 of this two-part article, while we'll examine the third purpose in part 2.

The first purpose of an arraignment is to inform the person exactly what charge is being made against him or her. In a Michigan DUI case, a person will likely be charged with "Operating While Intoxicated," or "Operating While Intoxicated with a high BAC," or "Operating While Intoxicated - 2nd Offense," or even "Operating While Intoxicated - 3rd Offense," which is a felony.

While this may seem almost too obvious, imagine a person who is found passed out and drunk behind the wheel. The next morning, at his or her arraignment, the Judge or Magistrate informs the person that he or she is being charged with "Operating While Intoxicated" (usually, no one will tell a 1st time offender that he or she is being charged with a "1st offense" because that's just a given). Suddenly, our Defendant, Danny the Driver, wonders, "huh?" Danny doesn't remember anything about leaving the bar last night and has no recollection of ever driving, much less being pulled over or arrested.

Thus, the first order of business is to inform the defendant of exactly what charge or charges he or she will have to defend against.

Continue reading "Michigan DUI - The Arraignment After a Drunk Driving Arrest in the Detroit area - Part 1" »

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July 8, 2013

Michigan Driver's License Restoration or Clearance Eligibility

If your Michigan driver's license has been revoked because of 2 or more DUI convictions, there comes a point when you are or will be considered legally "eligible" to try and get it back. As a Michigan license restoration lawyer, I find myself explaining this rather often. It's about time to bring this issue back for another examination and look at it again. First, though, we need to identify exactly what we're talking about. As it turns out, being "eligible" to file a license appeal doesn't exactly mean one simple thing. The terms "eligible" and "license appeal" are often used in several different contexts, so we'll try and clarify things a bit.

To start, we'll begin by defining "eligible." The DAAD, meaning the Driver Assessment and Appeal Division of the Michigan Secretary of State, has to follow Michigan law regarding a person with "multiple" drunk driving convictions. "Multiple," in that sense, means 2 convictions for alcohol-related traffic offenses within 7 years, or 3 such convictions within 10 years. Anyone in this boat is legally classified as a "habitual offender," and will have his or her license revoked. Revoked means that, until a person files and wins a Michigan driver's license restoration appeal, his or her license cannot and will not be reinstated, no matter how long they wait, and the person must wait at least until he or she is legally "eligible" just to start the restoration appeal process. "Eligible," then, means legally allowed to take the first step in the license restoration process by filing an appeal. It means being eligible to request a hearing to ask for your license back. The decision to give it back or not rests solely with the Michigan Secretary of State, and is entirely in the hands of the DAAD as it considers the evidence presented in your license restoration appeal.

Eligibility 1.2.jpgUnder Michigan law, here's how long a person has to wait to become legally eligible to file a driver's license restoration after multiple DUI's:

1. For 2 DUI convictions within 7 years, at least 1 year from the date of revocation,
2. For 3 or more DUI convictions within 10 years, at least 5 years from the date of revocation.
Often, I get called by someone who has recently has been notified of his or her license revocation following a 2nd or 3rd DUI conviction. "Can't I get some kind of restricted license just for work," they'll ask. The answer is an absolute no. Yet the simplicity and clarity of that answer often results in a person trying to reframe the question, or see if there is some way around this whole revocation thing. If the reader takes one thing away from this article, it should be that it doesn't matter if you're the most important person in the world; after your second DUI within 7 years, you can't do anything to get your license back until at least 1 year has passed, and, if you're coming off of a third DUI in 10 years, you'll have to wait at least 5 years.

This means there is no going to court to get some kind of license. Not only is going to court impossible, the law specifically forbids it. The only thing you can do to become "eligible" is to simply live long enough for your eligibility date to come around. That's it. There is nothing else you can do, period.

Every now and then, someone will hint that they know someone who knows someone who knows this or that person (often it's supposedly a judge, or prosecutor) and that the mystery friend was able to go to court and get their license back. To be clear, such a thing is absolutely, 100% impossible. The law specifically limits the jurisdiction of a circuit court by specifically forbidding hardship appeals. Given that the "knowing someone" angle is a dead end, let's look at how things really work...

Continue reading "Michigan Driver's License Restoration or Clearance Eligibility" »

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July 5, 2013

Michigan Driver's License Restoration - What to do to win your License back After a 2nd or 3rd DUI - Part 2

In part 1 of this article, we began looking at how and why the time between a person's last DUI, assuming that it's a 2nd or 3rd offense, and the time he or she becomes eligible to file a license appeal, is important. Given that your license will be revoked for multiple DUI's, and because the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) will be looking at what you did between the date of your revocation and the time you file a license appeal, making good use of that time is important. We identified that the most important part of a Michigan driver's license restoration appeal is proving, by clear and convincing evidence, that your alcohol problem "is likely to remain under control," meaning that you will essentially be required to prove that you're sober.

In this second part, we'll pick up by considering how that is done. The idea here is to use the time from your last DUI productively, so that it will help pave the way for winning your license back, either through a license restoration appeal, or through a clearance of the Michigan hold on your driving record that stands in the way of your getting or renewing a license in another state.

to-do-list 2.1.jpgGetting sober, however, is a journey. This is why a very basic piece of beginner's advice in AA is "fake it 'till you make it." That works for AA and even has some role in pre or early recovery, but it takes much more than "faking it" to be successful in a license restoration appeal before the DAAD. This will become clear as we separate these things out a bit. As a Michigan driver's license restoration lawyer actively involved in ongoing, formal education in addiction studies at the post-graduate, University level, I bring both a legal and clinical understanding to this subject. That's not meant to sound fancy; I bring it up because my special background gives me such an advantage in the field of Michigan driver's license restoration cases that I provide a guarantee that if I take your case, I will win it. This first-time win guarantee means that I am every bit as invested as you in winning your case and getting you back on the road the first time.

It would seem that our real goal, after a person's last (meaning 2nd or 3rd, or even 4th or subsequent) DUI is to nudge or urge them from the denial stage into the recognition stage that his or her drinking has become a problem. The difficulty with this is simple: The harder you try, the farther you push someone away. It is an established fact that about the least successful way to get someone to recognize a problem with their drinking is to nag them. Screaming and yelling and intellectual appeals and cost-benefit analysis presented by well meaning family and friends are almost guaranteed to have zero effect. Yet a simple line passed on from therapist to a client of mine says it better than all the slogans of AA or observations in college textbooks: Anything that causes a problem, is a problem.

When you're dealing with your 2nd or 3rd DUI, the only question to ask is, "what's causing this problem?" The answer, at least to anyone whose thinking is not impaired by denial, is obvious. This, of course, really highlights the conundrum and frustration of an alcohol problem, because, for the most part, everyone on the outside can see that a person's troubles all stem from his or her use of alcohol, while the very person affected blames the police, "the system," or some external source of pressure or stress.

Yet there is a role for the "fake it 'till you make it" approach in the whole license appeal process, and in the very way that the AA people mean it. And to be clear, none of this has anything to do with actually going to AA. AA is a great program that helps a lot of people, but in the final tally, 2 out of 3 people who maintain long-term sobriety do so without staying involved in AA. As the previous 2-part article on this blog explains, AA is helpful, but absolutely NOT necessary to win a Michigan driver's license restoration case. More than half of the people for whom I win back a Michigan driver's license, or for whom I win a clearance are not involved in AA by the time I take their case.

Continue reading "Michigan Driver's License Restoration - What to do to win your License back After a 2nd or 3rd DUI - Part 2" »

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July 1, 2013

Michigan Driver's License Restoration - What to do to win your License back After a 2nd or 3rd DUI - Part 1

As a Detroit DUI lawyer and a Michigan driver's license restoration attorney, I spend almost every minute of each working day dealing with both the short and long-term legal consequences of Michigan's drunk driving laws. My focus in DUI cases is beating the charge, or at least keeping my client out of jail and minimizing consequences, if not avoiding them outright. In a Michigan license restoration or clearance case, I concentrate on winning back the privilege to drive for someone who has lost it because of multiple alcohol-related driving (DUI) convictions. There is a time gap, and really a "life gap," between these two events, however. It can take years, and it can certainly feel like a lifetime, from your 2nd or 3rd (or 4th or 5th, for that matter) DUI conviction to when you can file a driver's license appeal in the hopes of getting back on the road, legally.

This 2-part article will take a look at some things you should be doing (or should have done) between your last DUI conviction and the time you become eligible to file a license appeal. This is important stuff, because what a person does and does not do in the months following a 2nd or 3rd DUI conviction that results in a license revocation plays a key role in whether and/or when he or she can later successfully restore his or her driving privileges. One thing you can take to the bank, no one has ever lost a license appeal for having done too much.

To-do 1.2.jpgAs it turns out, the "gap" between your last DUI conviction and the time you become eligible to file for restoration of your license is a very real, often difficult period. Many people will just "endure" it, doing little more than just waiting for it to be over. Unfortunately, too many lawyers play no real role during this time period, either, and just wait and hope for a call from a returning client who, by the mere passage time, finds him or herself eligible for a license appeal. That kind of ignorance misses things on multiple levels, because being "able" to win a Michigan driver's license restoration case requires a lot more than merely being "eligible."

Given the indisputable fact that what a person has or has not done in the time since their last DUI becomes the very focus of their license appeal, it would be incredibly short sighted for me, as a Michigan license restoration lawyer, to just sit and wait and hope that anyone who calls will have used his or her in-between time wisely. Because the general scope of this article is rather broad, we'll confine our examination to a more summary review of those things people in the real world are likely to actually do, or at least have a chance of actually doing, that will help them win a license appeal after his or her license has been revoked. Even a cursory look at this subject, however, will involve packing a lot of information into these pages. As a result,in order to do this subject justice, these installments will be a bit longer than usual. While this is by no means intended to be a comprehensive examination of this subject, by the end of this article, you should get the general "gist" of things.

First, we need to define our inquiry a bit. When you're convicted of a 2nd or 3rd offense DUI in Michigan, you are automatically categorized as a "habitual offender." There is no higher offense in Michigan than a 3rd offense DUI. A 5th DUI is still charged in court as a "3rd" DUI, so when I use the term "3rd," it can mean anything from a person's actual 3rd offense to his or her 5th or 6th offense, and even numbers beyond.

This "habitual offender" label carries more than just a regrettable designation. The habitual offender laws require that your driver's license be revoked as a result of a 2nd or 3rd DUI conviction. "Revoked" means taken away for good. In the case of a 2nd DUI within 7 years, your license is revoked for life, and you are not eligible to file an appeal for at least 1 year. In the case of a 3rd DUI within 10 years, you must wait at least 5 years before you may begin the appeal process. This is very different than merely having your license "suspended." Suspended means that the license will reinstated upon a certain, specified date, or, for example, if a particular sum of money is paid. You can't just apply to get a revoked license back; you must go through a formal license appeal process with the Michigan Secretary of State's Driver Assessment and Appeal Division (known as the "DAAD") to win it back. Until that happens, you won't get your license reinstated, no matter how many years, or even decades it's been since you lost it. Accordingly, the use of the word "lifetime" when we talk about your driver's license having been revoked is completely accurate and absolutely literal.

Continue reading "Michigan Driver's License Restoration - What to do to win your License back After a 2nd or 3rd DUI - Part 1" »

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