January 3, 2014

Michigan Secretary of State DAAD Tampering/Circumvent Ignition Interlock Violation

In my work as a Michigan driver's license restoration attorney, I have seen a dramatic increase in the number of ignition interlock violations listed as "tamper/circumvent." This is a horrible circumstance that is most often the result of a honest mechanical problem with a person's car and somehow ends up with him or her opening a letter from the Michigan Secretary of State to learn that his or license has been revoked again. The state likes to put it in a more confusing way, and say that it has reinstated its original action, meaning the revocation. However it's said, it means that the Secretary of State has yanked your license all over again.

In many of the numerous cases I've handled, my client has actually made contact with his or her interlock company before any work was done on the car. In some cases, a new battery is put in; in others, some other work has been done on the vehicle that results in a momentary power loss. Whatever the case, and despite taking all measures to avoid trouble, a person subsequently winds up with a violation notice and the temporarily unavoidable re-revocation of his or her license. This is one area, in particular, where I can add my voice to the chorus of affected drivers and agree, "This isn't fair."

DO NOT TAMPER 1.2.jpgFair or not, it is what it is. I could stretch this article into a book and still do little more than scratch the surface of the subject. The larger point is that once this has happened, you need to take action. There is no magic phone number to call. I can list examples all day of things that have gone demonstrably wrong, where my client has seemingly "made arrangements" with the interlock company before changing a battery, or having work done on his or her car, and even where the mechanic has followed up with a call to the interlock company, only to wind up getting a "tamper/circumvent" violation anyway. For all of that, here is an actual real life best (or maybe worst) case example that illustrates how utterly broken the state's system really is, and how unnecessarily difficult it was to win:

My client noticed that his interlock handset continued to display a message ("drive safely") even after he turned the car off. Not wanting to run into trouble, he took the car to the interlock service provider to have it looked at. When he got there, he was informed that it was kind of his "lucky day," because the manufacturer (Draeger) had one of it's representatives in from Texas to help train the staff at the local facility. Needless to say, he handed over his car confidently. Likewise, a few hours later he drove it out of the shop every bit as confidently, having been given a receipt for his service indicating everything was in good working order.

Weeks later, after we had already filed for restoration of his full license, he received an ignition interlock violation notice for a "tamper/circumvent" occasioned by about a 4 minute power loss while the interlock company and the manufacturer's rep had his car. How could this be? We quickly arranged to have this violation heard with his full license hearing, figuring that the receipt showing that the interlock company had his car (fortunately, it showed the time his car was brought in and the time it was returned to him) when the power loss took place would be good enough. The receipt even had an embossed seal, making it indisputably "official."

The hearing officer wasn't satisfied with just that. I almost pulled my hair out, wondering what more he could want or we could get, insisting that we had proof that my client's car was in the interlock provider's possession when the violation occurred. The hearing officer didn't disagree with that, but replied that he had an interlock violation where, to use his exact words, a "backyard mechanic" had disconnected his unit for a few minutes and rigged things up so that when it went back on, he could provide breath samples whenever requested, with the machine having been altered in a way that it could not detect alcohol and would provide "zero" readings even after he had been drinking. I countered that what some devious guy did in his backyard was one thing, but that I doubted that the interlock company, with the manufacturer's rep on site, was going to do that to my client's car. The hearing officer insisted, however, that since the power loss was reported to the state, the manufacturer should have separately notified the state that it was responsible. While I agreed that perhaps the company should have done that, I argued that whatever it did or did not do, my client had proof that he didn't do anything to his unit...

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December 30, 2013

Michigan Driver's License Restoration or Clearance - Short Version

As a Michigan driver's license restoration lawyer with loads of articles and published information about the whole license reinstatement process and clearance process, I often wonder how I can come at my subject in some new way. Many of my articles about restoring (or clearing) a revoked Michigan driver's license are very highly detailed, but long and thorough. Others are broken into multiple installments and examine just one important aspect of winning back your driver's license. To be different, this article will be an attempt to overview the entire process of Michigan license restorations in a single and shorter installment.

If you accumulate 2 or more DUI convictions, your license gets revoked. You cannot just "get it back." You have to become "eligible," meaning that you must wait at least 1 year from your 2nd conviction if you lose it for 2 DUI's within 7 years, or at least 5 years if you lose it for 3 DUI's within 10 years. If you get caught driving and are cited for any kind of moving violation during the time your license is revoked, then you get another 1 or 5 years of additional revocation slapped on. If that happens, there is nothing you can do but wait it out.

back-to-basics 1.2.jpgThe Michigan DAAD (meaning the Michigan Secretary of State's Driver Assessment and Appeal Division) will accept the filing of a driver's license restoration appeal 6 weeks before your actual eligibility date. Right now, it takes about 10 weeks after everything is filed to actually get a hearing, so this means that your case will be heard about a month after you become eligible. Many people are not aware that the hearing officer does not inform you of his or her decision at the conclusion of the hearing, meaning you will be notified by mail, anywhere for 2 to 4 weeks later.

There is certain paperwork that must be completed and filed in order to request a license hearing. This includes a substance abuse evaluation completed by a licensed substance abuse counselor, at least 3 (I never go with less than 4) letters of support that must be notarized, along with a "request of administrative review," even if you're filing for a full hearing.

For people that have moved out of Michigan, there is an abbreviated process called an "administrative review," in which the paperwork for an appeal is filed by mail, but no hearing is held. About 3 out of 4 (7%) of administrative reviews lose. They are losing propositions. That same term, "administrative review" is confusing because the Michigan DAAD uses in two very different situations. Despite that lack of clarity, the hard reality is that if you actually want to win a clearance, the better choice is to come back to Michigan to do it right.

The rule governing license appeals begins by specifying that "the hearing officer shall not order that a license be issued to the petitioner, unless the petitioner proves, by clear and convincing evidence, all of the following...." This is a negative mandate, meaning that it essentially requires the hearing officer to look for a reason to deny the case, rather than look for reasons to grant it. This is not just because the state is "mean," either. Once you have picked up 2 DUI's within 7 years, or 3 within 10 years, you are, by law, categorized by the state as a "habitual offender," meaning that you are presumed to have an alcohol problem. This presents a big problem for a lot of people, but the hard reality is that you will never get your license back if you try a license appeal and try and argue that you don't (or at least didn't) have a drinking problem because the state automatically designates anyone with multiple DUI's as having a troubled relationship to alcohol.

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December 27, 2013

Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 2

In part 1 of this article, we began looking at the "big picture" in a Michigan DUI case, trying to separate all the scare tactics that too often obscures the much more palatable reality in a 1st offense case that you're almost certainly not facing any jail time. We learned that a Detroit-area DUI case is not the end of the world, and that by hiring a local Michigan DUI lawyer (meaning one who practices exclusively in Macomb, Oakland and Wayne Counties) like me, even many of the potential "real world" negative consequences can be avoided. We saw that those that cannot be avoided outright are manageable, at worst. Beyond that, we looked at the first 4 of what I have called the "5 most important" aspects of a DUI case. Those included the cost (and yes, aggravation) of having to hire a DUI lawyer, observing that, on the one hand, there is little benefit to be had from the cut rate services of the low bidder kind of lawyer, while on the other hand, there is certainly little or nothing worthwhile to be had from spending too much for a lawyer, either. This is especially true in a 1st offense OWI case.

We noted that the DUI itself is going to be expensive, that barring a dismissal of the case, there will be at least some restriction of your Michigan driver's license, and that the whole process is (by legislative design) inconvenient. Here, in this 2nd part, we'll pick up where we left off and look at the mandatory alcohol screening test, the required interview with the probation officer, the probation officer's duty to write and forward a written report to the Judge recommending what your sentence should be, and how that all interacts to determine what matters most in any DUI case - what actually happens to you.

Rainbows 1.2.jpgAbove and beyond the 4 things we've discussed in part 1, the 5th, and most what I think is by far the most important aspect of a Michigan DUI case (unlike a misplaced concern about going to jail, which we noted almost certainly is not going to happen anyway), is that you ARE at risk to get shuffled into some kind of "alcohol classes" or counseling, even in a 1st offense situation. This is my home territory, and where I can help you in a way unsurpassed by anyone else.

In my own travels around the internet, I noticed that some DUI lawyers, for example, highlight their training with the datamaster breathalzyer instrument used at the police station. This "training" typically consists of a 6-hour, one-time class put on by the Michigan State Police. The sad reality here is that, unless your case can be won at trial because of a faulty or mistaken breath test, or it can otherwise be dismissed for that reason, a lawyer's knowledge about this machine, even if he or she can take it apart and rebuild it blindfolded, is essentially worthless to you. A DUI lawyer might as well advertise that he or she has a black belt in karate, because that will provide about the same degree of help in your DUI case.

By contrast, being able to speak with authority about what does, and, more importantly, in the context of facing a DUI, what does NOT constitute an alcohol problem, can make all the difference in the world to what actually happens in your case. It is highly unusual for a lawyer to have this kind of knowledge and training, but I do, and that can bring an unparalleled advantage to your defense.

This is key. This really is the "meat and potatoes" of any and every DUI case that isn't "knocked out" for some technical reason. The chance that you will actually go to trial and have a Judge or jury find you "not guilty" of any and all charges is statistically remote. If you want to plan intelligently, then hoping for a miracle isn't the way to go.

Unless your case is simply thrown out of court, there is a 100 percent chance that you are going to be screened for a potential drinking problem, because it is required, by law. The court must order that your history with alcohol be closely examined, and it will order you to refrain from drinking. It is also quite likely that you will be subjected to some kind of alcohol testing to make sure that you don't drink while this "no drinking" order is in place. In a DUI case, the entire focus of the court quickly shifts from your arrest to your relationship to alcohol. This is where and why the real risk in a DUI case is getting wrapped up in all kinds of alcohol classes and counseling and even AA. This is the part of the case where I can make things better, and help you avoid the expense and inconvenience of unnecessary education or treatment. Here, I bring highly specialized and entirely unrivaled educational background to the table that can directly help you and clearly separates me from the rest of the pack of "Michigan DUI lawyers."

Continue reading "Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 2" »

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December 23, 2013

Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 1

Some of my blog articles and website sections are really just detailed examinations of a particular aspect or two of a Michigan DUI case. Sometimes I'll focus on the evidence, or the traffic stop, or a bond condition like having to test for alcohol (and sometimes drugs) while the case is pending. In other articles, I will examine the mandatory alcohol-screening test that's part of the court process in every drinking and driving case before the sentencing, or even the sentencing itself. It's been a while, however, since I've taken a step back and done a more general overview and looked at the big picture of what's really important and "what happens" in a typical DUI case.

This article will attempt to do that. In particular, and because I limit my DUI practice to local cases pending in Macomb, Oakland and Wayne Counties, we'll examine the 5 most important things about a Michigan DUI based upon my real world experience in these Detroit area courts. To do this properly, we'll divide this article into 2 installments. The first, (and shorter) installment will cover 4 of those 5 topics, and the second and longer installment will focus on the 5th, and what I consider most important topic.

Rainbow 1.2.jpgAbout the most important "big picture" thing to first point out is that a DUI charge does not mean going to jail, nor does it represent the end of the world. When I looked around on the internet and at many of the legal sites of lawyers that handle DUI cases, a few things struck me, but none so much as the "doom and gloom" that seems to surround this whole subject. It seems that it has become a marketing tactic for some lawyers to try and scare the reader nearly to death, and then offer their services as the best way to save the person from all the terrible things that can happen.

This kind of "scare tactic" approach must work to at least some extent (why else do so many lawyers do it?), but the honest truth is that, almost without exception, you're not really at risk to go to jail in a 1st offense DUI case in the first place. If the only thing you're worried about is getting locked up, then the $1500 cut-rate lawyer will do the same thing as the $10,000, over-priced lawyer. This is so important that it should be repeated: Almost without exception, you are not really at risk to go to jail in a 1st offense Michigan DUI (OWI) charge. This is the reality no matter what lawyer you hire. While I am in business to make money, I have no heart to lie and pretend that even with my special skill set, it will be the difference between your going to jail or not. Especially in a 1st offense Detroit area DUI, the truth is that you are almost certainly not going to jail.

The surprising truth is that even in a 2nd offense Michigan DUI, jail can very often be avoided, if things are handled properly. The point I'm driving at is that there is little to be learned, and little value to be had, from any lawyer that talks about or focuses too much on potential negative consequences. In the realm of DUI cases, there are many scary sounding and theoretically potential legal consequences, but in the real world, most of them never come to pass, and certainly not all of them together. It is a given that a person facing a DUI - whether a 1st, 2nd or even 3rd offense - is frightened. It seems to me that if you're in a position to help that person realize that some of his or her apprehension is misplaced, you ought to do that, and help calm them down, rather than working them all up and making things even worse.

High BAC charges are a recent introduction into Michigan law. While a high BAC charge sounds scary, the actual "enhanced" penalties fall far short of catastrophic. About the biggest actual risk in a high BAC charge is that your license will be suspended for 45 days. Again, in terms of "real world" outcomes, I've never had a high BAC client go to jail, and have been able to reduce the high BAC charge to something less severe in the vast majority of cases I've handled. In other words, if you've been charged with high BAC (sometimes called "OWI enhanced"), and even if the evidence in your case is rock solid, it is quite likely that I will be able to negotiate the charge down to something that avoids the theoretical, potential license sanction, anyway. This is why I don't charge more money for a high BAC charge than a standard 1st offense DUI.

Continue reading "Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 1" »

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December 20, 2013

Michigan Hold on Your Driving Record - Out of State License Problems - Part 2

In part 1 of this article about a Michigan drivers license hold that prevents you from obtaining or renewing a driver's license in another state, we began our discussion by highlighting that being really and truly sober is a necessary prerequisite to winning. I pointed out that, as a Michigan driver's license restoration lawyer, I provide a guarantee that if I accept your case, I'll win it. I also made clear that I require a person to be genuinely sober before I'll take his or her case, but once I do, the client will have the assurance and satisfaction of knowing that they'll only pay me once to get back on the road legally.

In this second part, we'll conclude our discussion about the empowerment real world evidentiary value that being able to tell the truth in a license appeal brings to the whole cause, and then we'll move on to examine the license appeal process, both in my office and at the state level, as well as why you'll have to come back to Michigan if you want to do this right, and how long the process takes.

Mich Space pic 1.3.jpgImplicit in our discussion of really being sober and why being able to be honest about that is that there is a certain but very real power in being able to stand strong and know you're telling the truth. I will stand by my client with every fiber of my heart and soul when I know he or she is really sober. By contrast, there is just no way I could ever feel that person who still drinks is somehow getting "screwed" by the system, when the first thing that system requires to return a license is that he or she has truly quit drinking.

Beyond that, part of getting sober is becoming honest, first with yourself, then with those around you. Here again, if you "get it," you understand this. If you don't, then this discussion seems like a lot of hot air, anyway. Whatever else, I thrive off of that empowering feeling when a license appeal is all about a person having really made the change from drinker to non-drinker and we're going in to tell the truth. And as anyone who has made that change knows, giving up drinking really involves a whole panorama of changes, from who you hang around with, to what you do with your time, how you think, where you go, and how you relate to the world around you and the people in it. In fact, the transition to recovery is really the culmination of countless other changes in your life. You can't fake that stuff. Ironically, if you've actually gone through the process of getting sober, you fundamentally understand that, whereas if you merely think you understand the process of getting sober, you really don't.

Proving that you're sober is best done at an in-person hearing. Administrative appeals (meaning appeals by mail) are losers. About half of my out-of-state clients are people who have tried an administrative appeal before, often more than once, and lost. The numbers are frightening: 74% (about 3 out of 4) administrative appeals are denied each year by the Michigan Driver Assessment and Appeal Division. This means your chances are 1 out of 4 to get back on the road, and 3 out of 4 that you'll be unable to drive for another year if you try the appeal by mail. It may be a headache to come back to Michigan, but it beats having to arrange rides for another year, or hold off on a job where having a license is necessary.

This means that if you're really serious about winning a clearance, coming back to Michigan to get it done is important. I require it. Nearly ½ of my clients come from out of state, and each week I meet with someone who now lives elsewhere. I have refined this part of the process nearly down to a science:

Continue reading "Michigan Hold on Your Driving Record - Out of State License Problems - Part 2" »

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December 16, 2013

Michigan Hold on Your Driving Record - Out of State License Problems - Part 1

The State of Michigan has put a hold on your driving record, and now you cannot obtain or renew a driver's license in another state. At first, you wonder if there is some administrative mistake, or if there is some number you can call, or fee you can pay to get it "taken care of," because you think that Michigan Secretary of State doesn't understand that you've moved away and don't want to come back. You do your research, and you come to learn that because you had 2 or more DUI convictions when you held a Michigan license, or, because your 2nd or subsequent DUI conviction occurred in Michigan (and even if you never held a Michigan license), the hold on your license cannot go away until you obtain what's called a "clearance."

By the time you get to my website, or this blog, you have most likely already discovered that removing the hold requires filing a formal appeal with the Michigan DAAD, or Driver Assessment and Appeal Division. You may have already tried (unsuccessfully), perhaps even more than once, and have finally accepted that you're going to need a driver's license restoration lawyer to get a driver's license. Now, your questions focus on how quickly this can be done, and how much it will cost. This article will answer those questions. Before we get to them, however, there are a few other inquiries we need to make and issues to clarify.

MichiganSpace 1.2.jpgThe first thing to clarify is that no matter how badly you need a license, or how much you want it, you have to be able to prove to the Michigan DAAD that you're sober. In order to prove you're sober, you really need to be sober. This is not a point upon which a person can "scam" or skimp. The crux of a DAAD license restoration or clearance appeal is that you have really quit drinking. And "quit" means truly have quit, as in for good, and forever.

This is a huge point. Almost every day, my office receives a call from someone who wants to redefine the meaning of "sober" to fit his or her life circumstances. Thus, when Ann, my senior assistant, asks if a person is "sober," she'll often get an answer like, "Oh yeah. I don't go the bars anymore; I'll only have a beer once in a while if I'm watching a football game with my friends." I can reel off examples like this all day long: "I've been sober for almost 4 years, and the only thing I had was a champagne toast at a wedding," or "I don't hardly drink at all except maybe a glass of wine with dinner here and there." That's not "sober," as far as the Secretary of State (and just about every clinician in the world) is concerned.

Sober, in the context of winning a Michigan license appeal, means alcohol-free, and committed to reaming that way.

There's an old saying that you sometimes can't see the forest through the trees. This issue about sobriety is critically important to the state, and is even more important to me because I provide a guarantee that if I take your license appeal, I'll win it. I charge $3000 (payable in 3 installments of $1000) to get your license back or obtain a clearance. You will only pay me one time to get your clearance. My guarantee, however, requires honest-to-goodness sobriety. Once I join forces with a client, I'm in it for the long haul. And while I am in business to make money, I make that money winning all my cases the first time, and not having to come back a second time to do "warranty work."

Continue reading "Michigan Hold on Your Driving Record - Out of State License Problems - Part 1" »

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December 13, 2013

Michigan Indecent Exposure and Aggravated Indecent Exposure Lawyer - Real World Relief

Facing a Michigan Indecent Exposure charge is an incredibly frightening experience. There is no need for anyone to compound your worries by highlighting all the potential jail time and other negative consequences that can be imposed by the court. However bad this situation seems at the moment, things usually can be made considerably better, even in cases that seem, by all accounts, to be "clear cut." I hope this article brings a healthy dose of relief and reality to the subject, and helps reduce the anxiety a person feels as he deals with either an indecent exposure or aggravated indecent exposure case. For my part, I bring over 23 years' experience as a criminal lawyer in the Detroit-area (meaning Wayne, Oakland and Macomb Counties) with a sub-specialty in this field. I have, quite literally, handled more of these cases than I can count, so this article is based on real-world experience.

In browsing the web and looking at some of the available information about indecent exposure charges, I came away the distinct impression that much (really too much) of it was fear-based. It's been a while since I've written anything about what I do as a Michigan indecent exposure lawyer, and it seemed like all of my "informational" articles have gotten buried under pages of well-designed sites put by other lawyer who seem preoccupied with describing themselves as ever more "tough" or "aggressive" than the next guy. Hopelessly short on any real information or sense of optimism, these sites simply focus on all of the possible legal sanctions and punishments that can be handed down for either a regular or an aggravated indecent exposure conviction. It seemed like the only point to this exercise was to scare the reader so much he'd call right away.

Hope 1.3.jpgAbout the worst thing you can do is "jump" to any lawyer with more fear in your heart than information in you r head. As I noted, despite how things feel or seem, the reality is that they're probably not nearly as bad as you think.

That said, let's be clear, rather than naïve; a conviction for either indecent exposure or aggravated indecent exposure isn't something to brag about. For the most part, however, and with proper legal guidance, dealing with either a simple or an aggravated indecent exposure charge can be more like a bump in the road than any kind of crash. To put it another way, while this is a regrettable situation, it's not anything to be scared out of your wits about.

In that regard, there are two very important things to get straight in order to begin our discussion. If your case is handled "properly" (and this does not imply that you should be paying outrageous legal fees), then you will almost certainly be kept out of jail, and you will not be put on the Michigan sex offender registry. In fact, winding up on the registry isn't even a legal possibility in most indecent exposure cases. I have never had a client charged with indecent exposure, or even just aggravated indecent exposure, go to jail.

After all of my years of handling these cases, I understand how a person feels like a "black cloud" has gathered over his head when he has to deal with this situation. It seems like the negativity caused by having to face an indecent exposure charge has tentacles that reach into every corner of your life. Most people explain that, while it's hard to imagine that there is any light at the end of the tunnel, it is certainly impossible to see any while in the middle of the case.

That will pass. Beyond my experience, I bring both a background (my bachelor's degree is in psychology) and current involvement (I am formally involved in a post-graduate certification program in the psychology department at the University of Detroit Mercy) in the field of psychology. This is particularly useful because it allows me to protect my clients from being perceived by the court as either a criminal, or as having some kind of mental health problem. Neither of those labels is helpful. In the vast majority of indecent exposure cases I've handled, the client has been suffering from some kind of "frustration," and not an underlying mental health disorder. This can be an anxiety or stress situation, or it can be the result of some dysfunction in his sex life. In fact, it can be as simple as a person just not having an adequate sex life. Whatever the case, these circumstances are usually the underlying realities that boil over and cause a person to "act out" in a way that leads to an indecent exposure charge.

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December 9, 2013

Michigan Embezzlement Lawyer - The Realities of Defending the Case

As a Michigan embezzlement lawyer, I have a somewhat unique criminal practice. Unlike the more "traditional" criminal attorney who handles a wide range of cases, I concentrate in just a few sub-specialties, one of which is embezzlement. I believe that in order to effectively handle an embezzlement case, a lawyer has to understand the client's side of things every bit as much as he or she must know the law. Unless the evidence in a case is so completely lacking that the Judge is about to dismiss it for being so weak, it becomes imperative for me to get the prosecutor and the Judge to see my client's side of things, as well. This is a difficult, but necessary task.

Let's be clear about that; there isn't exactly a large pool of sympathy to tap into for a person charged with this crime. If a lawyer simply accepts that as the whole reality and tries to plow forward anyway, he or she will have little or no chance to make things better for the client. This is a key point for me. While being "tough" and "aggressive" are necessary qualities to being an effective criminal lawyer, they are far from enough, and even farther from being the most important, in the typical embezzlement case. A bouncer at a bar is tough, but you wouldn't place your future in his hands. A used car salesman is normally aggressive, but that same skill makes him little more than annoying.

Real World 1.2.pngBy contrast, intelligence, experience, skill and tact are far more important qualities to successfully resolving something like an embezzlement case than just being "tough" and "aggressive." This is particularly true when a person (or a lawyer) thinks those are the best terms to describe him or herself. Here, you need the finesse of a skilled tactician rather than the bang of a dull hammer.

In that regard, it is usually the first order of business for me, in resolving an embezzlement charge, to blunt, or soften, the intensity of the ire normally felt by the victim that in turn is incorporated in the prosecutor's case. In other words, I have to calm things down a bit. I have to "mediate" things so that my client gets through the case intact. Most of all, I have to keep my client out of jail. When these cases start, the police and prosecutor's side is usually a bit "hot." I need to cool things down before we start off.

To be sure, some embezzlement cases "sound" strong, but lack enough evidence to convict a person. In those cases, fighting, and being "tough" and "aggressive" are important. However, one of the ironies of my practice is that, despite having published a number of articles that clearly advise anyone contacted by a detective (or a company lawyer, or loss prevention officer, or anyone asking questions, for that matter) to simply exercise his or her right to remain silent, many people find me, and those articles, after they've spoken to someone, or even written out a statement. While these admissions are not necessarily carved in stone, the reality is that they often come in circumstances where the other evidence is pretty strong, anyway.

If you're reading this and you've already admitted to something, you can take comfort in the fact that, in all the countless Michigan embezzlement cases I've handled, I've never had one where the only, or even the best evidence was the person's own statement or admission against self-interest. In other words, while it's better to remain silent, I've never seen anyone get convicted ONLY because he or she admitted something. Even so, if you haven't yet been charged, do yourself a favor and don't say anything. Often enough, I'm hired early on and I can be the "heavy" who asserts my client's right to remain silent to the police, or other inquiring party. This is one less uncomfortable thing my client has to deal with.

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November 22, 2013

Losing a Michigan Driver's License Restoration case for Being too Honest - Part 2

In part 1 of this article, we started looking at what happens in a Michigan driver's license restoration case when someone has lost a prior appeal and provided a date he or she last used alcohol that was untrue. This usually comes to light when the person gives a different last use of alcohol date in a new Michigan license restoration appeal that proves the date given in the first appeal to have been untrue. As a Michigan driver's license restoration lawyer, I have had to deal with this situation before. Unfortunately, it is not as rare as one might hope. To some, it can seem that the Michigan Secretary of State Driver Assessment and Appeal Division, or DAAD, isn't punishing him or her, because telling the truth in the new case means a person was not truthful in the prior case, and that almost certainly assures a denial in the new case, as well.

We left off in part 1 at the point where a person will have given an untrue date in his or her prior, and obviously unsuccessful attempt to win a license appeal. Thereafter, of course, the person will have actually and really quit drinking, and as part of getting sober, decide to file another license appeal. Of course, now that he or she is sober, the person wants to be truthful about everything.

Thumbnail image for Pinnochio 2.2.jpgGetting sober is often described in terms of getting clean, and part of that getting clean is coming clean. It is rather inconsistent with getting sober to misrepresent when and how it happened. Many sober people will recall having lied about their drinking so often that it was done without thought. And to the people supporting the recovery of a family member or friend, it's not the past that matters; like the person in recovery, their focus is on the future. Forgiveness is forward-looking.

Some of these family members and friends, if they remember, or are otherwise reminded, will have to forgive that the now-sober person had them write a letter to the DAAD in the prior license appeal vouching for their sobriety that turns out not to have really been sobriety at all. Of course, happy and convinced that the loved one is really doing it this time, there will be no grudges or hard feelings. In fact, many of these supporters would be happy to write a letter again if that would help.

It won't. In fact, it would hurt.

In all fairness to the DAAD, you can imagine how that looks. Even if you give the letter writer every benefit of the doubt, he or she still turns out to be a person who vouched for something that was completely untrue. At a minimum, that person is unreliable as any kind of witness. It's best to forget about ever using him or her again to write a letter of support. For some people, this can present a real conundrum because if they had previously submitted support letters from a spouse or partner, parent or parents, and a best friend, all those close witnesses are now burned, and useless. Now, a person will have to reach beyond his or her "inner circle" for support letters in the next appeal.

Still, at some point, a sober person has to have completed the act of quitting drinking and beginning the recovery process. Part of that process involves taking an account of the damage done while drinking. Things like DUI arrests or divorces or job losses are obvious, and unforgettable. Other things are just lost in the mix. When someone loses a license appeal, there will be a record. In the best case, the person will have hung on to his or her old substance abuse evaluation, letters of support and the DAAD's order denying the appeal. In any case, if that information isn't available, it should be ordered from the state. I do this when a client with a prior loss comes to hire me for a new appeal.

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November 18, 2013

Losing a Michigan Driver's License Restoration case for Being too Honest - Part 1

Part of my passion for being a Michigan driver's license restoration lawyer is that these cases are won by telling the truth. Even so, there are occasions in the context of a Michigan driver's license restoration appeal where just being honest will result in an almost automatic loss. This article, divided into 2 installments, will examine that situation where being honest will prevent you from getting back on the road, at least for a year.

For my part, I absolutely and steadfastly require that a person have quit drinking before I will take his or her case. In exchange for that, however, I do guarantee that I will win any license case I file. Apparently, I am rather unique amongst lawyers for my unwavering insistence upon sobriety, but that also explains why I am unique in guaranteeing I'll win. Whatever else, I want no part of "pretending" anything. I don't have any "secret" side, nor can anyone "buddy up" to me and confide that he or she is still drinking, or even thinks he or she can still drink. I win my cases fair and square, by telling the truth and playing by the rules.

Pinnochio 1.2.jpgThe license restoration process in Michigan is all about being sober. Unfortunately, in certain license appeal situations where a person has filed a previous appeal, there can sometimes be a price exacted for being too honest, and I call this the "truth tax." This article will examine the situation where a person has filed (and lost) a prior appeal with the Michigan Driver Assessment and Appeal Division (DAAD) and in that prior appeal provided a date or gave testimony about the last time he or she used alcohol that wasn't true. In other words, we'll be looking at those circumstances where the date given for a persons last drink in a new license appeal means the date given in a prior appeal must have been untrue.

I firmly believe that when someone has rebuilt his or her life and made the extraordinary change from drinker to non-drinker, and ditched the drinking friends, and done all the other things that make the sober lifestyle so much different than the old, drinking lifestyle, there is an essence, or quality to their story that you can almost feel. In a very real way, when someone has gotten sober and begins to tell his or her story, they practically radiate truthfulness. There are certain experiences a person undergoes as he or she makes, and then sticks with the decision to change, that cannot be faked. Very often, these aren't intellectual things, but rather visceral experiences that are experienced every bit as much, if not more in the "gut" rather than the mind.

This isn't really unusual, because a necessary prerequisite to getting sober involves finally getting honest with one's self, and that can be a emotionally difficult process. It is conventional recovery wisdom that a person cannot be honest with anyone else until he first becomes honest with himself. Typically, once a person finally admits that his or her drinking is a problem, and finally decides to do something about it, there is a feeling like the floodgates have opened. Very often, in the recovery process, things are admitted, amends are made (sound familiar?) and the truly important relationships with family and real friends are patched up and strengthened. Part of getting better is starting with a clean slate, and there is a rather cathartic feeling that goes with "getting it all out."

Part of staying clean is not getting caught up in denial and lies. When a person moves past drinking, he or she learns to deal with life on life's terms. This means stepping up and taking care of business. It means no more BS'ing about everything. And when a person who is really in recovery is asked about his or her sobriety, he or she will almost always tell the unvarnished truth about it. That can be an obstacle to winning a Michigan License reinstatement in the situation we're discussing...

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November 15, 2013

Michigan DAAD ( SOS - DLAD) Hearing Officers

In the world of Michigan Secretary of State Driver Assessment and Appeal Division (DAAD) license restoration cases, there are numerous variables that I have to control. We've all heard the saying that "anything that can go wrong will go wrong." In a Michigan license restoration appeal uncontrolled variables are precisely those things that can (and often do) go wrong. Therefore, controlling them limits the potential for problems. This is why, for example, I spend 3 hours with a new client in order to prepare him or her to undergo the substance abuse evaluation, which must be filed as part of the paperwork to formally begin a license appeal. Beyond that, both my senior assistant and I carefully review each and every substance abuse evaluation before it's filed with the state to make sure that it is "airtight." This is another safety check to prevent something from going wrong.

One variable that cannot be controlled, however, is the assignment of a case to a particular hearing officer. What's more, unlike many other variables, where something is either "right," or "wrong," the hearing officer is neither. Instead, the hearing officer is a subjective, human element. He or she has a personality that is made up of core beliefs, experiences and preferences. Each hearing officer is a different individual, and who winds up assigned to your case can make a huge difference in how things go. At its most basic, your fate rests in the hands of another human being, with all of the idiosyncrasies and inconsistencies that make him or her human in the first place. Accordingly, there is a certain, unavoidable element of unpredictability when it comes to who will decide your Michigan driver's license restoration case.

Judges-Gavel 1.2.jpgCertainly, in a license appeal hearing, there is a certain, rather objective inquiry that each and every hearing officer will make. The 2 main issues to be decided in every license appeal are, first, whether your alcohol problem is under control, and second (and really more important), whether your alcohol problem is likely to remain under control. As much as there are differences between the various hearing officers, there is also considerable overlap in terms of the information needed to decide a license restoration appeal with these two issues in mind, and the evidence that supplies it. Yet for all of that, what one hearing officer considers "proof" that your alcohol problem is "likely" to remain under control may not even come close to satisfying another.

In order to succeed as a Michigan driver's license restoration lawyer, I have to be able to look at a case before it's filed and conclude that the evidence I am about to file with the state is good enough for every hearing officer. I wish I could pretend that my ability to do this is purely a product of a superior intellect, but the unvarnished truth is that I learned some of these things the hard way. There is no better teacher than the school of hard knocks; anyone who's really sober knows that all too well. This means that at least you don't have to worry about "taking one for the team" because I've already done that for you long ago...

Let's go back to the substance abuse evaluation for a moment. As I review a completed form in my office before approving it to be filed, I am keenly aware that something which would be just fine with one hearing officer (and I am thinking of a very specific example of a hearing officer known for denying cases on the basis of what he calls a "questionable/insufficient substance abuse evaluation") would be an absolute deal-breaker with another. It is absolutely essential to know these things before your case is filed, because once that evidence has been submitted to the DAAD, there is no going back and fixing it.

After a case has been filed, the DAAD in Lansing will assign it to a local hearing officer. If things have been properly handled, the evidence will be solid, and none of it will be objectionable to any of the hearing officers in the state system. Even so, each hearing officer will approach the case, and the upcoming hearing to decide it, somewhat differently. Here again, knowing your hearing officer isn't just some kind of "advantage," it's absolutely necessary. In fact, one of the most important aspects of the way I do license restorations is the mandatory "prep" I do with each and every client before his or her hearing. Normally, I do this the night before the hearing, and spend about an hour reviewing the case with my client. Much of that hour is spent discussing exactly how the evidence in his or her case will be examined by the particular hearing officer deciding it.

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November 11, 2013

Michigan DUI and Probation Violations in DUI cases Involving ADD, Anxiety, Depression or Mood Disorders - Part 2

In part 1 of this article, we defined what is unfortunately an often overlooked but all too common problem in Michigan DUI cases - the existence of an underlying mental health situation involving things like ADD, anxiety, depression, or a mood disorder. This inquiry focuses on both those situations where a person is facing a DUI charge, and those situations where a person violates probation for a previous DUI case, by testing positive for alcohol or another substance.

We noted that this topic applies equally to individuals who do have, and those who do not have, any kind of alcohol or substance abuse problem. Our discussion led us to the stark realization that more understanding and appropriate treatment is given to a murderer (think of the convicted killer of John Lennon, and the guy who shot President Ronald Reagan) or serial killer than a DUI driver suffering from anxiety or depression.

Depressed woman 1.2.jpgNow, we'll shift our perspective a bit to that of the clinician. As a Michigan DUI lawyer involved in ongoing education at the graduate level in addiction issues, and with an undergraduate degree in psychology, this whole topic hits a nerve with me. I feel compelled to do more than just play the role of "DUI lawyer" in this type of situation, and because of my background, I am uniquely able to understand the larger dynamic at play when a DUI client presents with an underlying mental health issue. What's most alarming is that huge numbers of people in our modern society have to deal with things like ADD, anxiety or depression, but this seems to be overlooked by the court and probation people assigned to "handle" DUI cases. The point I'm making is that the presence of these conditions is not a small-scale phenomenon. You'd be hard pressed to find a family without some history of one of these conditions.

About the best thing a court can do to someone who has any kind of mental health issue, regardless of whether or not the person has a co occurring alcohol (or drug) problem, is to make sure the "right" therapist treats him or her. By "right," I mean someone who understands co morbid substance use and abuse issues. Sometimes, this isn't an issue because a person may have his or her own therapist. If someone does not, then it can take some work to find the "right" person, and even then, the therapeutic relationship begins somewhat precariously, with the knowledge on both sides that, because of the court's undeniable presence and role, it's a bit like an arranged marriage.

From the clinician's side of things, it is frustrating to have to send reports to the court about a client's progress, and to know that what is absolutely, everyday normal in the therapeutic world, namely, that a client will "slip" and have a drink, or use, is cause for punishment for a court-referred person and that such a person can actually be sent to jail. In other words, a person who is not on probation will work through his or her problems with the therapist and report an episode of drinking, or using, without fear of being punished. Progress, in the clinical sense, and in the real world, typically involves two steps forward, one step back, three steps forward, one step back. Very often, that step back can be a drink, or an episode of using. It happens; this is expected and understood as a normal part of getting better. Every therapist is intimately familiar with this, but that knowledge doesn't seem to make it through the courthouse doors...

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November 8, 2013

Michigan DUI and Probation Violations in DUI cases Involving ADD, Anxiety, Depression or Mood Disorders - Part 1

In more than 23 years as a Michigan DUI lawyer handling drinking and driving cases in the Metro Detroit area, I have seen certain patterns of behavior that are completely missed, or at least misinterpreted, by the court system. This has led me right back to the University campus where I formally study of addiction issues at the post-graduate level. I think it applies to everyone that, as you learn things, it changes the way you view the world. In the world of DUI cases, that means a whole lot of people seem to get steamrolled, or sold out, by a system that doesn't have the ability to understand their respective situations. Specifically, I'm talking about people with ADD, an anxiety disorder, depression, or a mood disorder who have been charged with a DUI, or otherwise wind up on probation for a DUI and thereafter face a probation violation for drinking or using a prohibited substance. This article will apply equally to those who do, as well as those who do not have, an alcohol (or substance abuse) problem.

We hear references to the kind of behavior in everyday conversation: "He's 'self medicating,'" or "she's depressed." There are detailed examinations in textbooks and plenty of research studies about the co occurrence of an alcohol problem and an anxiety, depressive or mood disorder, but our examination here will, by necessity, be much more topical and summary, even though this article will be divided into 2 parts. Technically speaking, the pairing of an alcohol (or substance) use disorder with another mental health issue is called a "co morbid" disorder.

Depressed blue 1.2.jpgThis is very heady stuff, even for those with doctoral degrees in psychology and extensive substance abuse training. Before we get into how alcohol and something like ADD, anxiety, depression, or a mood disorder affects people in the real world, it is worth noting that, if the research and analysis of data about how to best deal with these situations isn't even completely clear to the people with 50-pound heads and advanced degrees conducting research on University campuses, you can be sure no one at the local courthouse has any better solution.

The big problem is that the people (meaning Judges and probation officers) at the local courthouse must handle these situations. They have no option of just throwing their hands in the air and admitting defeat. To make matters worse, because of the incredible complexity of these combined and intertwined issues, the people to whom such cases are assigned (probation officers) don't even have a clue that they don't really know what's going on. In other words, because they don't understand the depth of the situation, they have no idea that they are in way over their heads. This is not a knock against anyone; treating co morbid disorders is far from fully understood, or in any way settled. My point here is that this kind of situation will exceed the resources and understanding of any court system, even though the court system has no choice but to "handle" it.

Unfortunately, what winds up happening is that the system just criminalizes and punishes people for being anxious, or depressed, or having ADD, or having a mood disorder. In many cases where a person suffers from one of these conditions, whether diagnosed or not, he or she may find some relief on occasion by drinking. We call this, appropriately enough, self-medicating. It often happens without any conscious awareness on the drinker's part. For whatever reason, this sometimes comes to light when a person has a few too many and gets caught driving. Suddenly, then, it seems as though the system seems to stand ready to pounce on him or her, as if their drinking is only about being self-indulgent and partying too hard.

A person in this position may very well not even have an alcohol problem, but that doesn't stop the court system from treating him or her as if they do. Similarly, it's quite possible that the person doesn't realize he or she has any kind of anxiety disorder, or is really depressed, but the system will blow right over that and attempt to treat a drinking problem that may not even exist. There's a popular saying that applies here - "It's complicated." As we'll see, that's an understatement of grand magnitude...

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November 4, 2013

The Role of the Substance Abuse Evaluator in Michigan DAAD (DLAD) License Restoration Cases

In a very real sense, the foundation of a Michigan driver's license restoration appeal is the substance abuse evaluation. In numerous articles on this blog, as well as in relevant sections of my website, I have written about the various requirements that must be met in order for the substance abuse evaluation to be considered good enough to win. I've also detailed what can go wrong, including what gives rise to, in the words of one of the Michigan Driver Assessment and Appeal Division (DAAD) hearing officers, a "questionable/insufficient substance abuse evaluation." In this article, we'll take a step back from the written evaluation itself, and turn our attention to the person who actually completes the form: the evaluator. Given the significance of the evaluation itself, it should be obvious that the role of evaluator who completes it is at least equally important.

In order to complete a substance abuse evaluation, an evaluator must have and list certain credentials. Nowhere, however, does the Michigan Secretary of State, nor the Driver Assessment and Appeal Division (DAAD) specify anything by way of minimum or required credentials. Despite this curious omission on the state's part, I've never had "credentials" become an issue in any of my cases. That's probably because within my practice as a Michigan driver's license restoration lawyer, I use a few select evaluators, all of whom are active substance abuse counselors with relevant graduate degrees. At least with the evaluators I use, "credentials" to complete a substance abuse evaluation are beyond question.

Therapist 1.2.jpgIf we take a step back and focus on the evaluator, it becomes clear that the underlying recovery philosophy of the evaluator is the thing that matters most in the DAAD substance abuse evaluation process. If there's one point I want to make in this article, its that the school of thought from which an evaluator bases his or her analysis can either make or break an evaluation for a particular client. At its simplest, this means if a person stays sober without AA, but the evaluator is a kind of "AA person," such a pairing will not likely produce a favorable evaluation. This problem can be avoided by using, as I do, an evaluator who employs a holistic approach that incorporates all of the various other schools of thought.

My own leanings in this regard are obvious; my interest in this subject arose in large part because my first legal assistant was a former substance abuse counselor who had a holistic approach to helping people get better. This woman felt equally at home endorsing AA for one person, but not another. Perhaps a bit ahead of her time, her outlook shaped my thirst for understanding and ultimately my return to the University campus where, with an undergraduate degree in psychology and a law degree already under my belt, I returned to the classroom for the formal study of addiction issues at the graduate level. This combined experience and training allows me to so completely manage the license appeal process that I guarantee a win in every Michigan license reinstatement case I file.

It wasn't that long ago that if you worked as a substance abuse counselor, you had probably been schooled in the disease model of alcoholism. AA subscribes to the disease theory. AA was long seen as the closest thing to a "cure" for a drinking problem. And while it is not my intention to be critical of AA, (I actually think it's a wonderful recovery and support system) the program does an enviable job of guarding it's turf, reminding attendees that "rarely has a person failed who has thoroughly followed our path." Regrettably, some hard-liners within the program become dismissive of anyone who manages to remain abstinent without regularly attending meetings, pejoratively calling such a person a "dry drunk."

Add to this the reality that a lot of substance abuse counselors are people who've had their own recovery. This, of course, means they not only intellectually understand what it's like to struggle with a drinking or drug problem, they know this stuff at the gut level. That is a good thing; you can read every book out there about how to ride a bike, for example, but none of that comes close to actually riding one. The same holds true for how many people feel about talking to a counselor alcohol and substance abuse issues. In point of fact, some of the best counselors are not in recovery, any more than the best orthopedic have broken most of their bones.

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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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