October 2013 Archives

October 14, 2013

Michigan Driver Asessment and Appeal Division Standard of Proof

Winning your Michigan driver's license back after 2 or more DUI convictions requires that you file the proper documents and presenting evidence to the Michigan Secretary of State Driver Assessment and Appeal Division. To succeed in a driver's license restoration hearing, you must show, by what is called "clear and convincing evidence," that your alcohol problem is under control, and, even more important, that it is likely to remain under control. As a Michigan driver's license restoration lawyer, my file cabinets are full of cases for people that have hired me after having tried to do this before, without my help, and then lost. Whatever the reason or reasons given for those denials, in each and every case it amounts to having failed to prove one or more of them by clear and convincing evidence.

This article will be about "clear and convincing evidence." If you've tried a license appeal before and lost, this will help you understand why. If you haven't tried yet, then this will enable you to really size up the level of proof it takes to win. To be precise, "clear and convincing" means the standard of proof that your evidence has to reach in order for you to prevail. A standard of proof is, to a large extent, an arbitrary thing. The hearing officer will judge whether or not your evidence is "clear and convincing." In a perfect world, this would be a consistent and measurable standard, like 12 inches, or 16 ounces, but "clear and convincing" is, to a certain degree, inherently subjective, like "beautiful" or "delicious."

Scales 1.2.jpgThus, as we try and explain a concept that eludes a precise definition, we should first clarify its application. In other words, if we ditch the overly academic and legal baloney for a minute, we can cut to the heart of the matter and talk about how things work in the real world. There are really two things you have to prove in a license appeal: First, that your alcohol problem is under control, and second (and really more important), that your alcohol problem is likely to remain under control.

I could write a whole book about proving that your alcohol problem is under control, but the bottom line here is if you lost an appeal because you failed on this point, you should blame your lawyer. If you didn't have a lawyer, then you should blame yourself for that poor choice, and think about it every time you have to bum a ride. This is basic, foundational stuff for a license restoration lawyer, and, at least in my office, something that is my responsibility to get right, and then double check before a case is ever filed. Failing to prove that your alcohol problem "is under control" really means that a critical error was made in the preparation of your case, and the same error was made all over again in not catching it before it was filed. As mistakes go, this is equivalent to a surgeon amputating the wrong leg on a patient, and then shrugging before he lops off the other.

The main task in a Michigan driver's license restoration case is to prove that your alcohol problem is likely to remain under control. Here too, we could spend eternity analyzing and explaining things, but for purposes of this article, we can just say that you to prove that you're a safe bet to never drink again. That simple definition, however, belies the complexity of having to convince a hearing officer that you yourself truly believe you can never again consume alcohol, and that you have the commitment and tools to follow through with that. Let's talk about how that's done...

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October 11, 2013

Michigan Secretary of State Driver Assessment and Appeal Division Ignition Interlock Violations

Changes in the way the Michigan Secretary of State's DAAD, or Driver Assessment and Appeal Division, handles alleged ignition interlock violations have cause a dramatic increase in the number of violation cases I have seen. Chances are that if you're reading this, you're either facing a DAAD interlock violation, or, in some way and for somebody, this topic is important to you. This article will address the specific class of violations that occur after someone has won restoration of his or her driving privileges from the DAAD (usually after multiple DUI's) and is still on a restricted license and required to use the interlock device.

Although the law requires a person that wins his or her license back after an appeal hearing to drive with the interlock for a minimum of 1 year, lots of people who get "violated" are either very near or already past that first year at the time something goes wrong. It is important here to emphasize that an interlock violation is very serious business. I say this as someone who frankly detests alarmists and lawyers who use scare tactics. However, in the context of an ignition interlock violation, you not only risk the long-term loss of your privilege to drive, but also being seen by the DAAD as having consumed alcohol and/or tampered with the interlock unit after you were approved for a restricted license. If the violation is ultimately sustained, it's going to make winning your license back a lot harder next time. Frankly, it doesn't get any worse than this.

Interlock Dude 1.2.jpgThis is worth repeating: If you lose here, you are way farther behind than just having to start all over again. You're going to be seen by the DAAD as someone who won a license back and then either drank again, or tampered with the machine, which, to the state, just means you drank again and tried to hide it. Good luck coming back the next year, or anytime, for that matter, and trying to use your old sobriety date.

I wish this process is as easy as saying "bring me a whole bunch of money and I'll make the violation go away," but it's not. Remember, I'm the guy who guarantees that if I take your driver's license restoration case, I'll win it. Things are much darker and different here, when a violation has been issued. The only guarantee you have when facing an ignition interlock violation is that there will be a lot of work involved in defending it.

Let's back up for a moment and talk about what first happens when the state receives notice of a violation. Technically speaking, if it's what's called a "major violation" (and you would never have been notified if yours was anything less), the SOS (Secretary of State) will "reinstate" the previous action, meaning reinstate your license revocation. The language can be confusing, but the result is plain enough: once the SOS gets wind of a violation, they yank your license. There is no way to stop this from happening. The ONLY thing you can do is request a hearing to challenge the violation. If you win, the violation is dismissed, and your license is reinstated again. If you lose, then, to put it realistically, you're basically screwed.

Recently, I attended an interlock vendor's seminar. I walked in thinking I would learn a lot, and while I did learn a number of things, I was literally astounded at the complete lack of understanding many of the other attendees (all lawyers) had regarding how interlock units function and malfunction. This is where my being a Michigan driver's license restoration lawyer makes a difference. I'm not just "familiar" with the interlock; I work with issues involving it everyday. While I may not have previously considered myself an expert, by comparison to some of the questions I heard asked at that seminar, I sure felt like one. This isn't a knock against anyone else, but when your fate depends on the information generated by one of these machines, any lawyer you consider hiring better have a thorough working knowledge of them.

Beyond just knowing how these machines work, especially in cases involving positive breath samples, a lawyer has to have a very good working understanding of the chemistry involved in BAIID testing in general, as well as how the human body processes and metabolizes alcohol. I do. Beyond just being a lawyer, and even a license restoration lawyer, I am actively involved in the formal University, post-graduate level study of alcohol and addiction issues. This requires a fundamental understanding of pharmacokinetics.

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October 7, 2013

Michigan 2nd Offense DUI - Staying out of jail and Making Things Better

As a Michigan DUI lawyer, I handle a lot of 2nd offense cases. I think that a good part of the reason why is that many people who've already had a 1st offense DUI read some of my articles and recognize the accuracy of how I explain the court process. In addition, because the whole issue of alcohol, and particularly your relationship to it, is the focal point in a 2nd offense DUI case, my expertise in addiction and alcohol issues is of immeasurable value. The bottom line is that anyone facing a 2nd DUI charge knows that things are serious, and that it's important to get he best help you can.

While there is certainly a lot to a 2nd offense case, the hardest reality is that getting thrown in jail is a real possibility in this situation. That needs to be avoided at all costs, and it is unlikely that the level of expertise needed to produce the best results will come from the "low bidder." For me, it is the convergence of a rather unique skill set that enables me to provide the best opportunity to stay out of jail and minimize all of the other consequences that are on the menu when you're facing a 2nd offense. Someone who has been through the process before doesn't have to take what I say on faith.

gettingArrested 1.2.jpgIn the bigger picture, it would just be more profitable for me to say what people want to hear in terms of making a 2nd offense DUI all better. However ignoring or refusing to look at and address the main issue a 2nd offense presents is not a strategy. To be completely honest about it, when you've been charged with a 2nd offense DUI, you are invariably seen as either having a drinking problem, or being extremely likely to have one. To put it another way, just about every Judge, at least in the Detroit area, will think that it's highly unlikely that your drinking is not a problem. I cannot even fathom how a lawyer would not begin his or her representation, which is supposed to translate into "help" for the client, from this premise. To ignore this reality is not only disingenuous; it's dangerous. Some think that simply ignoring this whole topic is good for business, in the sense that talking openly about it, as I do, might "scare" a prospective client away.

Think about it for a moment; do you really thing that there is any Judge who will look over from the bench and see a person with a 2nd offense DUI and just figure it's bad luck? If we're going to make things better for you, the first thing we need to do is take an honest look at your situation, and facing a 2nd offense DUI is a unique and troubling situation. At a minimum, you have to admit that a 2nd DUI represents some kind of ongoing problem when it comes to choices made, particularly choices about drinking, and driving. And from the new Judge's point of view, whatever the other Judge in the first case did, it clearly wasn't enough to put a stop to the behavior.

Accordingly, it would be ludicrous to think that the Judge in your 2nd offense case will be thinking that perhaps the 1 year of probation you got in your 1st offense case was just too much. The new Judge is going to be wondering what he or she has to do to make the point and get the drinking and driving to stop. About the last thing the new Judge is going to buy is another "it won't happen again" promise. That pretty much amounts to nothing more than "been there, done that." Instead, the new Judge will be waiting to hear what else you have to say, and show. And you better have something. That's where I come in.

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October 4, 2013

Win your Michigan Driver's License Restoration case, Guaranteed

Because I concentrate my practice in handling Michigan driver's license restoration cases, I am frequently asked a question like this: "What do you think my chances are?" If you're my client, the answer is "nothing less than 100 percent." When I take a Michigan license appeal or clearance case, I guarantee I'll win it. While there are a million little rules governing Michigan license restoration cases, the single most important thing, probably a million times more important than anything else, really, is that you have honestly quit drinking. As long as I have that to work with, I can make virtually any case a winner.

I charge a respectable $3600 fee for my services, but in exchange for that, you are guaranteed to get back on the road. And to be clear about it, I make my living winning these cases the first time, not going back later to do any kind of "warranty work." Some lawyers charge less than me, but none offers my guarantee, and none requires sobriety, like I do, before accepting a case. In other words, you can't hire me just by paying me. I make sure anyone I represent has moved past his or her alcohol problem and really quit drinking. I play by the rules and I win fair and square. My integrity is not for sale.

auto keys 1.2.jpgIt certainly takes a lot to win a Michigan license appeal. Many people find that out by trying to do it themselves first. Some people lose the first time they try, and then try again. Lots of my clients are people that have tried before, often more than once. Some even had a lawyer, although obviously not any kind of "driver's license restoration lawyer." It seems to me that the whole reason you'd be spending money on a lawyer is to actually win your case, and not just "improve your chances" of winning. That would be like buying a new refrigerator and asking the salesman what the chances are that it would keep running. When you plunk down the money for a new refrigerator, you expect it to work, and, if something goes wrong, then you expect your warranty to cover getting it fixed. It shouldn't be any different for a driver's license restoration appeal.

I certainly have all the confidence in the world about my ability to win any case I take, but I say that without being overconfident, or "cocky." If my client has really transitioned from drinker to non-drinker, I can take care of everything else. First, however, the client absolutely must be sober. That's no less a requirement than a submarine cannot have any leaks.

The real task of winning a license restoration or clearance case is to understand the legal framework, or the "million little rules," as I call them, of the DAAD (the Michigan Secretary of State Driver Assessment and Appeal Division), and then fit the clinical evidence of the client's sobriety into that framework. Perhaps one of the biggest advantages I bring to the table is ongoing, formal post-graduate level University training in addiction issues. Being a lawyer is all well and fine, and certainly a minimum to represent anyone in a legal proceeding, but I also understand things from the clinical side. I speak the specialized language of substance abuse counselors. I can discuss various aspects of different theories of recovery and treatment protocol that most non-clinicians don't even know exist.

This is hugely important, because not everyone who wants to win his or her license back is involved in AA. In fact, way more than half of my clients are NOT active in AA. Many of these folks had gone to AA for a while - some longer than others, while others have never gone. Pretty much everyone knows about AA, but knowing how and where it fits in the panorama of other treatment protocols that actually help people get sober, like brief interventions and cognitive behavioral therapy, gives me an unrivaled advantage in explaining, (and proving) how my client, whether he or she is in AA or not, meets the state's criteria of showing, by "clear and convincing evidence," that his or her alcohol problem is "under control," and, more importantly, "likely to remain under control."

This translates directly into making sure the substance abuse evaluation is done correctly. And that begins, in my office, with a 3-hour meeting just to prepare the client to have it completed. This means that I meet with each and every client for 3 hours before he or she ever sits down with a substance abuse counselor to be evaluated. Of course, I make the referral to a competent evaluator, as well. That's just for starters...

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