September 2013 Archives

September 28, 2013

The Real Penalties for Driving While License Revoked in Michigan

Part and parcel of being a Michigan DUI and driver's license restoration lawyer is being, almost by definition a suspended and revoked license lawyer, as well. In Michigan, driving while license suspended (DWLS) violates the very same law as driving while license revoked (DWLR), but the two offenses are very different, particularly because the long range consequences of driving while license revoked are so much more severe. In this article, we will focus on the Michigan Secretary of State administrative sanctions for a conviction of driving while license revoked, differentiating them from those that are spelled out in the criminal law.

To begin, I should point out that the consequences to be examined are the same no matter where in Michigan a person lives. While the range of court-imposed (meaning criminal) consequences of a driving while license revoked case are spelled out in the law, and can differ based solely upon the location of the court or the temperament of the Judge, our focus is going to be upon the mandatory (and therefore non-negotiable) sanctions that the Michigan Secretary of State must hand out when someone with a revoked license is caught driving.

Consequences 1.2.jpgIf you're license has been revoked, it almost always means you've had multiple DUI convictions. Anyone in this predicament knows that you never just "get" a revoked license back. Unlike a suspended license, where you will eventually become eligible for reinstatement after a certain period of time, or if you pay a certain amount of money, a person with a revoked license only ever becomes eligible to file a formal license appeal and have his or her case decided after a hearing in front of the Michigan Secretary of State's DAAD, or Driver Assessment and Appeal Division. Only when you've been approved (and that means proving, by "clear and convincing evidence," that your alcohol problem is both "under control" and "likely to remain under control") do you ever win back the privilege to drive, and even then you're placed on a restricted license and required to drive with an ignition interlock device for at least the first year.

This pretty much means that having lost your license for multiple DUI's automatically puts you at a disadvantage. Since my purpose here is to be informative, then I'd ask the reader to indulge me a bit and let me speak plainly, rather than try and tiptoe politely around the real issues. If your license has been revoked, the court sees you as dangerous. While no one has his or her license suspended for singing too loud in the church choir, you certainly don't get your license revoked because all you did was forget to pay a ticket. When you're license is revoked, it means that you've practically been on a mission to screw things up. That part of your life may be over, but not the consequences.

This is important because, as I have noted many times before, there are really two classes of people who wind up in court with a suspended/revoked license charge:

1. Those whose suspension/revocation results from one or more alcohol-related prior offense(s), and,
2. Everybody else.
When you go to court, it's about a million times better to be part of the "everybody else" group. In the previous article entitled "The Problem with Michigan DUI Cases," I tried to explain the trend that accounts for almost everyone facing a DUI being seen and treated as if they have a drinking problem. Here, in the context of revoked licenses, we're dealing with folks that have multiple convictions for DUI. Dragged back into court for driving when they are clearly not supposed to, there is a natural tendency on the part of any Judge to see such a driver as out of control and determined to do what he or she wants, regardless of laws or rules or anything like that. By contrast, if you're part of the "everyone else" category, that means you're license has merely been suspended, and often for something like not paying a ticket or getting too many points. Whatever else, that kind of person is seen as negligent, more than any kind of threat on the road.

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September 23, 2013

The "Problem" with Michigan DUI Cases

Whether it's a DUI anywhere in Macomb, Oakland or Wayne County, there is an undeniable negative vibe that is part and parcel of any Detroit area drunk driving charge. If you've already been in front of a Judge or Magistrate, then you've likely had your first taste of this. Anyone having to "test" as a condition of his or her release fro jail, for example, already feels that the whole "innocent until proven guilty" thing has been turned on its head. Beyond feeling like you have to prove your innocence, it feels like there is a certain sense that you have an alcohol problem just because you've been cited for OWI.

You're not misinterpreting things. When you get caught up in the world of a DUI, you can darn well count on having to labor under the presumption that your drinking is, or is at least at risk to become, a problem. To be clear about it, the whole judicial system, for better or worse, has gotten caught up in the agenda of MADD. It used to be that MADD's mission was to prevent drunk driving, but even it's founder quit years ago because she felt that organization had lost its focus and become far too "anti-drinking," rather than focusing on the prevention of drinking and driving.

Thumbnail image for Thumbnail image for problems 1.2.jpgAs a Michigan DUI lawyer who is also involved in formal University education at the post-graduate level in alcohol and addiction issues, I am specially equipped to stand up and argue for you and keep you from getting swept away by the tide of "you must have a drinking problem" sentiment that seem to dominate the thinking of everyone in the court system simply because you're facing a DUI charge.

Still, there is a reason that Judges and probation officers have, almost unconsciously, shifted over to such staunch anti-drinking positions. In this article, we'll look at how and why the everyday experience of a Judge or probation officer shapes his or her beliefs about drinking and people facing a DUI charge. In particular, we'll see that as much experience with alcohol issues as any Judge or probation officer has, every last bit of that experience is negative. There is no case handled by any Judge or probation officer where a person's drinking has not been, at least on the occasion that gives rise to the charge, problematic. Remember, every Judge or probation officer works all day, every day, with people whose use of alcohol was problematic enough to bring them into the legal system.

By contrast, those same Judges and probation officers have never so much as spent an hour of their working life dealing with situations where a person's alcohol use was not problematic. Non-problematic use if alcohol won't get you arrested. It only makes sense that if your drinking hasn't caused a problem, then you don't wind up facing charges for it. The person who has a glass of wine with dinner and doesn't get arrested doesn't have to go to court. As a consequence, it's only to be expected that many Judges and probation officers eventually form negative attitudes about drinking.

That's not to say that they're abstainers, or teetotalers, either. The point I'm making is that the negative attitude they develop about drinking is essentially created by and focused upon those who have been charged with a DUI, which, in Michigan, is actually called OWI, or Operating While Intoxicated. And while this article is about overcoming being perceived as having a problem, we'd miss the proverbial elephant in the room if we didn't acknowledge that there is a very good reason these attitudes develop and are sustained in the first place. Statistically speaking, a much larger percentage of people arrested for a DUI have an underlying drinking problem than the population at large. In other words, if you had 2 empty rooms, and you filled the first with 100 people chosen at random, and then filled the second with 100 people currently facing a DUI charge, it shouldn't come as a surprise that, as a group, you'd find a much higher incidence of problematic drinking amongst the DUI group than the group chosen at random.

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September 20, 2013

Michigan DUI Breathalyzer and the Breath test (PBT) Before your Arrest

In my role as a Michigan DUI lawyer, I often hear people use the term "breathalyzer" with indiscriminate reference to whether it was the initial test taken on the portable unit at the time of arrest, or the much more sophisticated test taken on the big machine at the police station. In this article, I want to focus on the role of the test taken prior to arrest. This test is called a "PBT."

"PBT" stands for "preliminary breath test." I don't know how people speak of it outside the Metropolitan Detroit area, but in Macomb DUI cases, Oakland DUI cases and Detroit OWI cases, people often use the term "PBT" as an acronym for "portable breath test." While this is not technically correct, it does accurately reflect that the machine used for a "PBT" is small and portable. And while we're clarifying things, it should be noted that in Michigan, there is no charge of "DUI," meaning "driving under the influence." Michigan law only makes out the charge of "OWI" (check your ticket or court notice), meaning, "operating while intoxicated." As much as "DUI" has come to be synonymous with "drunk driving," the term "PBT" has likewise simply come to mean the breath test given by a police officer with the handheld portable unit. Rather than stand on ceremony here, we'll just use the term as everyone understands it.

Shadow PBT Cop 1.2.jpgA discussion like this can sound rather well organized and clinical, but at the time a PBT unit with a straw is being shoved into your face, you're probably not thinking about the device's technical name or evidentiary limitations. If anything, you're probably just praying in your head some version of, "please let me blow under the limit!" Whatever else, if you're reading this, that didn't happen. Nor would it be fair, really, to expect any kind of "divine" intervention that would thwart the proper functioning of such an instrument and let a person who is over the limit somehow test out as being under. The machine did its job, the night took a turn for the worse, and now you're dealing with a DUI.

Earlier, we noted that the acronym "PBT" stands for "preliminary breath test." Key here is the word "preliminary." These portable machines are, by and large, reasonably accurate, but not accurate enough to provide bodily alcohol content (BAC) scores sufficiently reliable to be used against you in court. This goes to one of the more common misconceptions about PBT scores. In those cases where someone remembers what he or she blew in the back of the police car, it is not unusual for him or her to think that the number is part of the DUI charge. It's not. A PBT score is only used as part of the determination that there is "probable cause" to arrest you and take you to the station, where you'll be asked to perform the real breath test on the big machine.

There is a lot of science involved in a breath test and the machine used at the police station. Some people are willing to spend the money to challenge those test results. Yet for all that effort and expense, of all the people arrested for a DUI each year, less than .25% (meaning less than one-quarter of one percent) of them are ever found "not guilty" after spending a boatload of money on a drunk driving trial. In 2011, for example, about .17% of all DUI arrests in the State of Michigan resulted in a "not guilty" verdict. Whatever else, technical arguments about the scientific unreliability of breath testing doesn't sell particularly well with juries. Here, however, we're not focused on the science of breath testing at the police station, but rather the role of the handheld preliminary breath test.

In that regard, the biggest value of the PBT given at the time of your arrest is to determine, at least preliminarily, if you are over the limit and should be taken to the police station for further testing. From the point of view of a Detroit DUI lawyer, like me, the results of your PBT test also provide a benchmark from which to interpret your BAC scores obtained from the from machine at the station. In other words, if your roadside PBT score was .14, and you blow .06 at the station, or, conversely, if you blew .06 on the road, and then .14 at the station, something is likely wrong, and serious investigation is needed. Most of the time, a person's PBT score will be at least relatively close to his or her BAC score from the police station. Any difference or similarity has to do with how much alcohol the person consume, exactly when, and how his or her body metabolizes it. Thus, if Dan the driver slams 2 quick shots before leaving the bar and gets pulled over just as he leaves, his roadside PBT score may not reflect those last 2 drinks. By the time he gets to the station, however, his BAC will likely have increased significantly.

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September 13, 2013

Winning back your Michigan Driver's License After 2 or more DUI's

Being a Michigan driver's license restoration lawyer means that I answer a lot of questions about license reinstatements for Michigan residents, and that I explain a lot about the license appeal process, and what it takes to get your license back. To be clear, almost all of what I do involves restoring driver's licenses for those who have lost the privilege to drive because of multiple DUI convictions. There are some questions I'm asked all the time. As a result, I am aware that most people aren't clear on those points. Other questions only come up once in a while, and, perhaps because I work with license issues all day, every day, I sometimes forget that what might be obvious to me may be rather unclear to everyone else. One of these common questions deals with the kind, or type of license you win back when you win a Michigan driver's license restoration appeal.

When this issue comes up, it's usually asked something like this: "Is there a way I can just get a full license?" Sometimes, it's phrased more like this "I understand that most people have to get that machine in their car and blow in it. Is there some way we can request to not have that?"

Interlock Install 1.2.jpgThe question arises because most people have kind of heard, at least in the background somewhere, that when you win a Michigan license reinstatement appeal, you only win back a restricted license, and that you have to install an ignition interlock unit (variously and more commonly called a "breath machine" or a "blow and go") in your vehicle, but they're not really clear on the details. I have a little good news for anyone who has bothered to check out my website or any of the other driver's license restoration articles on this blog; the answer to this question is clear and simple.

If you win a Michigan driver's license restoration appeal, you must drive for at least one year using an ignition interlock, and you may only have a restricted license. If you live in Michigan, there are absolutely no exceptions. Having clarified that there are no exceptions to discuss, let's now take the time to explore what all of this "restricted license" and "ignition interlock" stuff means.

First of all, you must be a Michigan resident to win back your driver's license. If you have moved out of state and no longer reside here, the Michigan Secretary of State cannot give you back any kind of license; that's up to your new state. Normally, you'll find out that your new state won't issue a license because of Michigan's "hold" on your driving record. In order to remove that hold, you have to obtain what's called a "clearance." The process of obtaining a clearance is virtually identical to having your Michigan license restored, except that a Michigan resident wins back a license, whereas a former resident is granted a clearance that removes Michigan's hold and allows his or her new state to issue its license. For the remainder of this article, we'll confine our focus to a driver's license that is restored for a Michigan resident.

To win any kind of license appeal, you are legally required prove to a Michigan Secretary of State Driver Assessment and Appeal Division (DAAD) hearing officer, by what is described as "clear and convincing evidence," that your alcohol problem is both under control, and likely to remain under control. Doing that requires navigating what I call (rather accurately, I believe) a "million little rules." I explain this in painstaking detail on my site and in numerous articles on this blog, but the simplest summary we can use here is that you have to prove that you're sober, and that you have the commitment and tools necessary to remain sober. To put it another way, you have to prove that you've quit drinking for good.

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September 9, 2013

Should I get into Counseling or Treatment for a 1st Offense DUI in Michigan?

Anyone facing a 1st offense drunk driving charge has lots of questions. In fact, as each hour passes, every unanswered question sprouts even more questions. This article will deal with just one of the questions that, as a Michigan DUI lawyer, I'm asked quite frequently: "Should I get into some kind of counseling?" While my answer is most often a simple "no," there is a longer explanation behind it, and that will be the focus of our current inquiry.

To begin, I have to define a few things, beginning with me:

alcohol dice.jpgFirst, and technically speaking, I am a Michigan DUI lawyer because I am a licensed Michigan attorney. More accurately, I am a Metropolitan Detroit, Tri-County area DUI lawyer. Specifically, that means that I am a DUI lawyer who only handles cases in Macomb, Oakland and Wayne Counties. This means that I know how things work in the courts of the Detroit area. All of my experience is here, and after 23 years, I've certainly accumulated a lot of it. If you're facing a DUI in Macomb, Oakland or Wayne County, I know the difference between one court and the next, and even between different Judges in the same court. The other side of the coin, though, is that while I suspect things might be similar beyond the Detroit area, I don't really know.

Second, a "1st offense DUI" means, rather obviously, any DUI charge if you don't have any priors. Yet even if you do have a prior offense, as long as the conviction for it occurred more than 7 years before the arrest for your current charge, the new case can only be brought as a "1st offense." That 7-year mark is critical because the law begins measuring the date of your last DUI from the date of conviction, meaning the date on which you pled guilty.

Third, a "high BAC" charge, sometimes written up as "OWI enhanced," or otherwise known as "super drunk" is still a 1st offense. In fact, legally speaking, you can only be charged with this "enhanced" DUI if you are a 1st offender. Of course, as noted above, if you had a prior more than 7 years ago, any subsequent charge is a 1st offense. To be clear, it doesn't matter what your BAC results, if you have had a prior DUI within 7 years, you cannot be charged with the "high BAC" or "enhanced" OWI.

Fourth, and following from above, the technical name for a drunk driving charge in Michigan is really OWI, which stands for "Operating While Intoxicated," and not "DUI." There is no legal term called "DUI," nor is there a charge named "DWI." While people use these terms rather freely, you will never see anything except "OWI" or "Operating While Intoxicated" on a ticket or any official paper issued by the state, or by a court. After years of using the technically correct term, I finally gave up and gave in and now use "DUI" just like everyone else.

Fifth, the terms "counseling" and "treatment" are often used interchangeably. For the most part, this is okay, but the reader should recognize that someone staying at an inpatient facility and being given medication to ease the effects of alcohol withdrawal is being "treated," and not "counseled." By contrast, someone meeting with a substance abuse counselor once or twice a week is in "counseling," and not really being "treated." For simplicity's sake, we'll stick with the common, interchangeable use of the term counseling and treatment, having at least noted, at the outset, that they can, technically speaking, refer to different rehabilitative modalities.

A lot happens when you're arrested for a DUI. The first 24 hours following your arrest is stressful. As soon as you think of one thing, another pops into your head, and soon enough, your head is practically spinning. Of course, everyone wonders if there is some way to just make the whole thing go away. What if the officer didn't read me my rights? Maybe they can cut me some slack because I have a good record and a good job and this is really going to screw me up...

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September 6, 2013

Michigan Driver's License Restoration Lawyer - Clinical and Legal Training - Part 2

In part 1 of this article, I began outlining my views on what it takes to be a Michigan driver's license restoration lawyer. I pointed out that the primary legal issue in a license appeal, that you prove by "clear and convincing evidence" that your alcohol problem is likely to remain under control, requires fitting certain clinical criteria into a legal framework set up by the Michigan Secretary of State through its Driver Assessment and Appeal Division, or DAAD. In this second part, we'll pick up with my role, somewhat comparable to a psychotherapist's role, in going back and exploring the mental processes that were going on inside your head when you decided to quit drinking, and how you grappled with and eventually came to understand and internalize those recovery concepts that helped you become a non-drinker. More specifically, we'll look at how whatever you've learned about why you cannot drink is enough to sustain your continued sobriety and prove to the state that you're a safe and sober bet to put back on the road.

If you've been to AA, but no longer go, you may not remember certain phrases that nevertheless doubtlessly influenced your recovery. If you spent weeks or months, but not necessarily years in AA, you probably spent much of that time working the first step. Even if you hated AA, you likely came to understand that there is a ton of not-so-obvious meaning in that first step. It's wording is esoteric to an outsider: "We admitted that we were powerless over alcohol, and that our lives had become unmanageable." Of course you learned the somewhat obvious meaning that you must admit you have a problem, but newcomers are given lots of advice (this is sometimes a problem) about the other, subtler meanings of the first step, like taking it "one day at a time," and thinking of alcohol as "cunning, baffling and powerful." You heard phrases like "avoid wet faces and wet places," and that you just need "to put the plug in the jug."

Library 1.2.jpgFor some people, AA is a great match. Some of this may have to do with finding the right meeting, or at least finding a meeting without the wrong person. Almost everyone who has gone to AA has had an experience at some meeting or other with someone that has too strong a personality, or is just too opinionated, or is otherwise some combination of a blowhard, loudmouthed know-it-all. That kind of personality is a complete turn off. Unfortunately, some people don't take the time to look around for another meeting without Mr. or Ms. Obnoxious, and just write AA off because that kind of experience. As a license restoration lawyer, the entire palate of these things are as familiar to me as is my drive to work.

Understanding things like the background of AA, and how it was founded (by Dr. Bob and Bill W.,) and how the disease model of alcoholism came to gain favor, and how that was influenced by the work of E.M Jellinek is foundational to what I do. In order to win a license appeal in a world where about 1 out of 3 people in recovery are involved in AA, you better darn well be an expert of sorts in AA. Knowing that there are 12 steps, or even knowing those steps is a far cry from "knowing" AA. To fully understand something, you need to know the good and the bad, and understand how those things contribute to a client either being a good fit with AA, or not.

Accordingly, it is equally, if not more important to understand the other ways that people recover, given that 2 out of 3 will do it without continued involvement in AA. To understand the broader concepts of recovery, however, you must first understand the various theories of addiction. There is a growing body of scientific research in this field. I am familiar with all of the major theories of addiction because I have formally studied them. This becomes important in reviewing a substance abuse evaluation, for example, because each and every evaluator bases his or her findings on whatever theory they believe. As an example, I recently reviewed an evaluation wherein the evaluator clearly noted that the person was in the "maintenance stage" of recovery. She used this term formally, meaning she viewed the process of addiction and recovery from the perspective of what's know as the trans-theoretical model popularized by Carlos DiClemente. Unfortunately, she had given the client a "fair" prognosis for continued abstinence, a conclusion about which I disagreed. My formal, post-graduate addiction studies education allowed me to communicate with her, in the language of her profession, how and why I believed her prognosis to be inconsistent with her diagnosis. I know the trans-theoretical model (TTM) rather well.

By contrast to being an active AA member, some people just go through a term outpatient counseling and manage to quit drinking. Other people go for longer-term therapy. What matters is that you've come away from whatever you've done with a complete understanding that, in order to remain sober, you can't ever drink again. Because just saying so isn't enough to win a license appeal, I'll help you go back and explain what was going on inside your head as you became alcohol free, even if it's been a long time. To do that, however, requires that I understand the broad panorama of ways people come to understand the nature of their drinking problems, and the strategies and tools they use to make the transition from drinker to non-drinker.

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September 2, 2013

Michigan Driver's License Restoration Lawyer - Clinical and Legal Training - Part 1

In the Michigan driver's license restoration section of my website, and within the more than 200 driver's license restoration articles on my blog, I analyze and examine virtually every facet of what it takes for a person to win a license appeal case in front of the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). One subject that could use a little more explanation, however, is what it takes to be a successful license restoration lawyer. With extraordinarily few exceptions, I win every case I take the first time around, and I back that up with a guarantee. There's more to this, however, than just being a sharp lawyer. I want to explain things from my side of the desk, and explain how I am different from any other attorney out there who merely "does" license appeals.

First and foremost, I define myself as a genuine Michigan driver's license restoration lawyer. I don't just "do" license appeals; I concentrate most of my law practice in them. It doesn't take long to figure out that I am rather passionate about this field. I don't mean to be judgmental, but there is just no way that some lawyer doing divorces can have a similar enthusiasm for the work he or she does in that field for the work that I do in mine. Central to my approach and practice is a specialized understanding of the onset, development of and recovery from an alcohol and/or substance abuse problem. Beyond claiming to be some kind of self-made "student" of this subject, I am formally involved in the study of addiction issues at the University, post-graduate level. This is critical, because in the real world, the entire crux of a license appeal is your recovery from a drinking problem.

Library Girl 1.2.jpgTherefore, just being a lawyer isn't really good enough, at least not in my book. And in my book, if I take your case, I guarantee I'll win it. To be clear about it, though, I will not take a case where a person is still drinking, or even thinks he or she can still drink. This costs me a lot of potential money, because there is no shortage of people who read some (and clearly not enough) of what I've written, see that I have a guarantee, and call my office ready to pay anything to get their license back. The first question my staff or I will have isn't about your ability to pay, but about your sobriety. If you're not sober, I can't help you win your license back, at least not yet. Perhaps, however, I can help you find some direction about getting sober.

This makes me unique amongst lawyers. It seems logical to me that if the development and/or diagnosis and/or recovery from an alcohol problem is the key issue in a license appeal, then as a license appeal lawyer, I should to have special education and training in those areas. Merely having handled a lot of DUI and license appeal cases doesn't make a lawyer anything more than familiar with them. Think of it this way: I am familiar with a television because I have watched a lot of TV. I know my way around a remote pretty well, but that doesn't make me an electrical engineer. Just because I watch a television doesn't mean I can open one up and fix it.

In the world of license restorations, your lawyer certainly needs to know everything about the law and how it's applied, but that's only the half of things. In a license appeal case, the law is applied to the story of your recovery from an alcohol problem. The state, meaning the DAAD, is going to scrutinize every shred of evidence you submit. The law essentially requires the DAAD hearing officer to look for a reason to deny your appeal, and that begins with the substance abuse evaluation that forms the basis of your appeal. Here's a newsflash: Many, if not most of the evaluations I see (this does not apply to the clinicians to whom I refer my clients) are not properly completed to the satisfaction of the state. That's not a negative reflection on any particular evaluator, because the evaluation form seems to ask for one thing, while the hearing officers seem, at least to anyone not really familiar with the process, to be looking for something different. It just means that an evaluator really needs to receive direct feedback on the specific information the DAAD really wants and what it considers important. I do this with the evaluators with whom I regularly work. What the DAAD "wants" is not obvious no matter how much you look at the form.

About half the new cases that come into my office are for people who have tried a previous license appeal and lost. Some of these are "do-it-yourself" jobs, and some involved a lawyer. Either way, in almost every such case, the person supposedly in control of the evidence didn't fully grasp the full scope of a license restoration appeal. This is where my kind of dual-purpose, specialized training is not only an asset, but becomes imperative, at least if you want to count on winning. As a lawyer, I have to make sure that the evidence is legally sufficient.

Continue reading "Michigan Driver's License Restoration Lawyer - Clinical and Legal Training - Part 1" »

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