August 17, 2015

Michigan Driver's License Restoration and Interlock Problems and Violations

In a recent article about Michigan driver's license restoration, I took up the issue of ignition interlock violations and how to avoid them. Because the ignition interlock and problems with it are such a fundamental aspect of license appeals, I'm going to keep up the posts on this subject, and stay on a roll. In this installment, we'll shift our focus from the idea of an interlock "violation" and instead look at the very common situation where a person goes through his or her first year with the device without being notified of a problem but then, at his or her next hearing to remove the interlock and restore full driving privileges, has to explain an incident, like a positive breath test during that preceding year, that did not result in any formal violation, but still shows up on his or her final interlock report. In other words, simply not being violated during your time on the interlock does NOT mean you'll have smooth sailing when you go for your full license thereafter.

interlock-1.1.jpgThere are lots of reasons why you may have something like a positive breath test beyond the actual consumption of an alcoholic beverage, and an exploration of those goes beyond the scope of this article. The kicker comes when you have not taken a drink but still wind up with a positive breath test, or even a start-up failure. In fact, the Michigan Secretary of State's Administrative Hearing Section (now called the AHS, and until very recently known as the DAAD) allows 3 of these start up failures in any download period before it formally violates you and re-revokes your license. The technical term for a "re-revocation" of your license is the "reinstatement of original action." As I noted above, however, even though you don't receive an actual violation, you're going to have to explain every single incident or problem you've had on the interlock, including each and every positive breath test.

And if that's not bad enough, when a positive breath test shows up and is followed by negative results (.000), you have to prove that it was you, and not someone else, who provided the subsequent clean result. The Secretary of State instructs that any positive test result be followed up by a PBT or an EtG test for just this reason. This sounds great on paper, but most of the time, when someone has to deal with something like a startup failure, he or she is also dealing with being late for work, so this kind of follow up is easier said than done. A great solution is an interlock unit with a camera mounted on the handset. This proves who was providing each and every breath sample, and it obviates the need (and inconvenience) of having to find and go to a police station to get a PBT breath test. Nationwide Interlock offers this kind of unit for a just a few dollars more each month. And while I'm on the subject of interlock companies...

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August 14, 2015

Michigan Driver's License Restoration or Clearance - Guaranteed

I have been told, on numerous occasions, that my guarantee to win a driver's license restoration or clearance case was a big reason why someone decided to hire me. While I am grateful for that, I want to make clear that it is the quality of work that I do, and my confidence in it, that allows me to offer my guarantee in the first place. I'm proud of how my office does things; we do good work. It is just a given that anything of substantial quality begins with good ingredients. In my case, I always - and only - begin with a client who has really quit drinking and is genuinely sober. With this as a basis, I can, and do, mold every case I take into a winner.

Forge 1.2.jpgMy guarantee is simple: If you hire me, you will win your license back or get your clearance. If, for some reason, your appeal doesn't succeed the first time, I will represent you before the Michigan Secretary of State's Administrative Hearing Section (AHS; formerly the DAAD) until you do. The deal here is straightforward: I make my money winning these cases the first time, not doing "warranty" work and having to come back and try again the following year. That's double the work and half the pay. Thankfully, I have never had to go back a 3rd time. I have every bit as much incentive to win your license back as you want it back, and quickly, at that. The only "catch" is that my guarantee doesn't apply if a client lies to me or withholds essential information. To date, I have never used an exception to my guarantee, but then again, I win almost all of my cases the first time, so that's not a surprise.

That kind of success starts the moment you call my office. Beyond all of the answers and information we can and do provide over the phone, my staff screens any potential client to make sure he or she has honestly quit drinking. This is hugely important. In the real world, everyone wants and needs a driver's license. I get that, and so does the Secretary of State. Needing a license, however, doesn't get you anywhere. To win it back, you must not only show that you have really quit drinking, but that you have the commitment and the tools to remain alcohol-free for life. I will not take a case for anyone who has not honestly embraced sobriety. If you've gone through this, then you know how profound it is. There is a real story in every recovery, and no one who hasn't lived it can, by any means, fake it. This, however, is just the tip of the iceberg...

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August 10, 2015

The Absolute key to Michigan DUI Cases

In my various DUI articles on this blog, as well as the DUI section of my website, I break down the Michigan DUI process and examine it in what is often painstaking, if not painful, detail. No matter how you analyze it, however, the most important part of any DUI case is what actually happens to you, meaning the sentence that is imposed upon you. In virtually every 1st offense DUI case and in most 2nd offense DUI cases, keeping you out of jail isn't really difficult for me to manage (in truth, staying out of jail is just about automatic in 1st offense cases). A far greater risk, however, is that you will be perceived by the court as having, or being at risk to develop a problem with alcohol. In fact, it is pretty much a given that, in any 2nd offense DUI, your involvement with drinking is seen as problematic and risky because, whatever else you can say about it, you're back again. To a Judge (and, really to society in general), a 2nd offense Operating While Intoxicated charge is a red flag that you have a troubled relationship to alcohol. This topic is so important that even though I took it up somewhat recently, we'll look at it again.

Empieza-el-test.jpgWhat winds up happening to you in either a 1st or 2nd offense drinking and driving case is, more than anything else, a result of whether or not the Judge believes you have, or are even at risk to develop, a problem with drinking. Lawyers can talk forever about all kinds of things like breath evidence and probable cause, but at the end of the day, your DUI experience will be most influenced by the court's conclusion you either do or don't have an alcohol problem, or are at increased risk for one. Beyond these simple conclusions, however, the real key to the court's perception of whether or not you have a drinking problem, or have an increased risk to develop one, is how you do (meaning how you score) on the legally required alcohol assessment test. This is a written test you take that is "scored," and that score is used to "fix" where you supposedly place on the continuum of an alcohol use disorder, from no problem to serious problem, or anywhere in-between. Like so many things, however, we tend to overlook the basic in the mistaken search for the more complicated. Here, as always, simpler is better. This is an absolute and simple truth, but because it doesn't sound glamorous, it doesn't sell as well, making it the most overlooked (and most costly thing to overlook) aspect of properly defending a DUI case.

This is a fact you can take to the bank: What happens to you in any DUI case that goes through the court system will have more to do with your score on the alcohol screening test than any other single factor, and usually more than all the other factors of your case combined. And since that's the way it is, then it means the single most important thing you can do is to perform well on that screening test. This is where I come in, and this is where my specialized training can directly help you. Because of my investment of time and money, I have a thorough knowledge of the diagnostic processes used to determine if a person has, or is at risk to develop an alcohol problem. In the real world, the people in the court system likely have little or no real understanding of the diagnostic criteria that underlie the screening test, other than there is an answer key to tally up the point value of your responses and arrive at your "score," which is then used to determine where on the continuum of alcohol problems you supposedly place. Because of my formal education, I know exactly how this process works, the concepts involved, and how make sure you understand how to do as well upon this evaluation as humanly possible...

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August 7, 2015

How to Avoid an Ingnition Interlock Violation in Michigan (or, how you Should Have)

In my role as a Michigan driver's license restoration lawyer, I handle a lot of ignition interlock violation cases. While I am glad to be able to help a person who winds up in a violation situation, I cannot get past the fact that most interlock violations could have been avoided in the first place. I get no delight in taking someone's money because he or she stumbled into a predicament by accident or oversight. In this article, I want to remind the reader that the Michigan Secretary of State's Administrative Hearing Section (or AHS, and until recently known as the DAAD) provides a "Notice of Proper Interlock Use" form along with the order granting back your restricted license, and that you absolutely should read that form, then read it again and do as it instructs.

SSR 1.2.jpgIgnition interlock violations are a huge pain. I have examined them in various other blog articles as well as in the specific interlock violation section of my website. The sad irony here is that as much as I want this article to be a guide to preventing a violation from occurring, many readers will come upon it after a violation has already happened. When it occurs, you will be formally notified of an interlock violation by the Secretary of State in a letter that also tells you your license will be revoked all over again in a few days. The language used here can take a few minutes to figure out, because the technical term for a re-revocation is "reinstatement of original action," the "original action" being the initial revocation of your driver's license. The worst aspect of this notice is that the action has already been taken. There is no way to stop it; you can't just call someone to straighten things out. The only thing you can do is file an appeal within 14 days to schedule a hearing so that you can try to win your license back - again. If you do not appeal, your license will remain revoked and you will have to start all over again from scratch.

Worse yet, if you don't appeal the violation, you will essentially "confirm" that the allegations against you are true. Even if you do appeal, you have to win, and the Secretary of State is very tough on violations. I'd be less than honest if I didn't point out that they have gotten even tougher in recent years, in part because they try hard to point out to people how to avoid these situations in the first place, and also because so many people show up confessing that they didn't exactly read the Notice of Proper Interlock Use. As I noted at the outset of this article, the notice comes attached to the order granting your original driver's license restoration appeal. On the flip side, it is difficult to say that you actually read it when you didn't do what it so clearly instructs. Let's take a look at the exact form the Secretary of State Provides:

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August 3, 2015

Michigan Driver's License Restoration, DUI and Criminal Lawyer - Hire by Phone

Over the last few years, I have had an increasing number of clients retain me over the phone, before they ever even meet me or come to my office. This article, like the previous, will be another departure from my usual informational installment, because instead of talking about Metro Detroit-area DUI cases or Michigan driver's license restoration appeals, I will examine things from my side of the desk, and the somewhat new way that I'm being hired. What's so interesting to me is that I had nothing to do with this. I never "offered" it as an option. Instead, it grew out of this blog, more than anything else, and is really a thing of its own creation.

phoner1.2.jpgMy website and this blog contain a lot of genuinely useful information about DUI, driver's license restoration and criminal cases. In the criminal setting, I have a rather eclectic concentration in DUI (drunk driving), DWLS/DWLR, embezzlement and indecent exposure cases. I publish 2 articles every week, and I examine my subjects in careful detail. I write about things like the stress a person arrested for a drunk driving goes through, the experience of getting sober, and how that's a necessary requirement to win back your driver's license, and how embezzlement cases and indecent exposure cases work in the real world. I don't write to impress other lawyers; my goal is to speak through the written word with the same conversational voice I have if I'm sitting across a table from someone. Apparently (and I'd be lying if I didn't admit to being rather proud of it), a lot of people identify with this.

So much so, in fact, that some years ago, it became clear that my "voice" was reaching people in a way that when they'd call my office, they were more than content to book appointments without ever talking to me first. That was certainly different, at least back then, because lawyers essentially thrive with the understanding that the way to get clients is to bring them in for the free consultation and have them "sign up." In other words, the object of getting a new caller on the phone is to get him or her to agree to come in and "discuss" the matter further. That was never the way I operated, anyway, because I always preferred to do all my consultation stuff over the phone. I've been fortunate enough throughout my career to be too busy to have time to bring people in just to "kick the tires." If you're looking to hire a lawyer, we'll answer your questions right when you call; there will be none of this "come on in so we can talk about it" stuff...

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July 31, 2015

The Traffic stop in Michigan DUI, Criminal and License Cases

Whether it's a drunk driving (DUI), driver's license restoration, driving while license suspended or revoked, or even a drug possession or indecent exposure charge, the overwhelming majority of the cases I handle can trace their beginnings to the operation of a motor vehicle. Criminal and driver's license cases as a result of something that was done in or with a car is something that I deal with every day, and almost all day long. A traffic stop can give rise to all kinds of legal issues (the most important of which is called "reasonable suspicion"), but the reality is that, beyond those issues, almost everyone I represent has found him or herself in trouble for something related to a vehicle. In driver's license restoration cases, I help get somebody back into the driver's seat. In all other situations, I help someone get out of trouble. In this brief article, I'll take a step away from my usual, informational installment and take a look at things from my side of the table, as the lawyer.

Thumbnail image for MSP Fall 1.2.jpgConsider this: A somewhat niche and unique aspect of my practice concentrates in indecent exposure cases. Almost every exposure case that I handle has taken place in a car. And while I've had a few "drunk boating" cases in my career, with but a few exceptions, every DUI case that has ever come into my office originated in a 4-wheeled vehicle. In today's world, everyone has a cellphone. The police can, and often do get a real time report of illegal activity (from a drunk driver to a driver exposing himself) from a cell phone tip. I've had countless cases where a tipster has remained on the phone so the police could locate a drunk driver as the caller followed him or her. "Suspicious activity" calls normally get a pretty quick police response, as well, especially in the suburbs. When you're 19, you might wonder why anyone would be concerned about your car driving around the same neighborhood at 1 in the morning; when you're a homeowner, you wonder what that car is up to, and when you're the police officer who stops the car and finds a bunch of kids with alcohol and/or marijuana, you wonder how they could be so clueless.

Of course, there are legal issues involved in the pulling over of motor vehicles, but the real world truth is that very few cases ever get tossed out of Metro-Detroit courts for an illegal traffic stop. Here is the big question I get asked all the time: "Don't the police need probable cause to pull me over?" The answer, and it may surprise you, is "No." The police merely need a "reasonable suspicion" to pull someone over. Once you're pulled over, they'll need probable cause to arrest you for something, but that's a whole different matter. The point here is that the law does not require an officer have "probable cause" to pull over a vehicle. Everything that happens thereafter, however, flows from that stop...

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July 27, 2015

DUI 1st Offense in Michigan - Dealing with the Stress

In this article, I want to return to the subject of a 1st offense DUI, and look at it from the inside, meaning how it feels to be the person facing it. In Michigan, we technically have no such offense as "DUI," so the phrase means either an OWI (operating while intoxicated) or a High BAC charge. For most people, a DUI is usually their first (and, hopefully last) real contact with the criminal justice system. It is stressful. I have seen many a grown man cry on the police car video, while being arrested, and it is not uncommon for people to cry in my office, as well. This is actually a good thing, because it means the person takes it seriously and is not callous or otherwise experienced at being arrested.

Thumbnail image for Anxiety-levels 1.2.jpgI think it's vitally important to know that it's okay to be nervous and it's okay to be afraid. You have all kinds of concerns and they are a natural part of what you're going through. You need to be able to feel better about your situation and have your concerns addressed and questions answered. While it is my goal here to alleviate your fears, it is highly unlikely that just reading "everything will be alright" (even though that's true) will make your worries just disappear. All the assurances in the world aside, it is important that you get accurate and honest answers to your questions, and not just blanket, broad-brush "feel good" promises. Remember, you're the one stressing out. This is not the time to be shy and wait to inquire about what matters most to you like it's some kind of polite afterthought. Write your questions out so you remember them. In my office, for example, a client is always welcome to come in with a friend or family member for support and/or to ask questions.

For many people, the police lights in the rear-view mirror make the stomach drop like a big roller coaster. Still, you experience this illogical hope that maybe you'll get through the traffic stop just fine. This explains why just about everyone, when asked by the officer if he or she has had anything to drink, responds by replying "a couple" or "two." Everybody says this, or something like it. Most people, however, begin to get a sense that this situation won't just blow over when they get asked out of the car. Usually, field sobriety tests follow next. A few minutes later, when the officer instructs you to put your hands behind their back, you get this raging flood of volatile emotions, including a mix of outright fear, regret and despair: How is this going to work out? I'm supposed to go home!

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July 24, 2015

Getting Sober - Michigan Driver's License Restoration and DUI

On both my website and this blog, I have written rather extensively about how sobriety is a necessary requirement to a successful license appeal. This is also the big turning point for someone facing a DUI, and who is determined to make it his or her last. I've tried to describe sobriety, distinguishing it as a state of being, rather than merely the state of not being intoxicated. In this article, we'll take one step back from all of that and look at the decision to really get sober. For anyone in recovery, this will always be amongst the most important decisions of his or her life. There is absolutely nothing that can compare with the gravity and impact of the choice to become clean and sober. In almost every case, the decision to quit drinking comes as a result of some emotionally significant, and usually negative event. In other words, no one quits drinking because it was working out so well. To be clear, lots of people quit drinking all the time, and often, many times, as well. Here we're talking about those decisions to quit that actually stick.

wpid-wp-1416178422589.jpegFor most people, the path of true recovery involves any number of false starts. The primary catalyst for someone to really "put the plug in the jug" is often described as an "epiphany moment," a "light bulb moment," or, more simply, as "hitting bottom." However one describes it, there comes a point when a person just "knows," in the core of his or her soul, that enough is enough. AA people sometimes describe this as "being sick and tired of being sick and tired." For just about everyone that gets to this point, drinking isn't fun anymore, and hasn't been for a while. Every attempt to cut down, control or manage one's drinking has failed. When you get honest with yourself, you see your drinking as having been the common denominator to many, if not all, of your life's problems. You don't rack up another drunk driving, or lose your license because your drinking is just fine. You've moved way past the ability to deny or rationalize any more, and you stand at the fork in the road: Continue drinking, and watch your life go down the tubes, or quit drinking.

From the outside, the choice is obvious. On the inside, it's much harder. Just because something is good for you doesn't mean it's easy to do. Quitting drinking is about a lot more than just quitting drinking; it's about changing everything you do, everywhere you go, and just about everyone you hang with. When a person decides to drink no more, he or she is also deciding to change his or her entire social life. For all the analysis that has gone into the subject of alcoholism and recovery, we've spent comparatively little time acknowledging the fact - and it is a fact - that when a person with a drinking problem suddenly removes alcohol from his or her life, there is a kind of adjustment, or "mourning" period that takes place. You don't seamlessly go from hanging out at the bar every weekend to sitting at home all by yourself. Some people find support in AA, while others don't, and just tough it out, but the point is that the wholehearted decision to quit drinking triggers an avalanche of life changes that take some getting used to...

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July 20, 2015

Michigan DUI and Medical/Professional Licenses through LARA

This article will be about DUI cases and medical and dental licenses, although much of what we'll go over is likely to be relevant to other kinds of professional licenses, as well. As a busy Detroit-area, Michigan DUI lawyer, a significant part of my client base holds various kinds of medical licenses through LARA, the Michigan Department of Licensing and Regulatory Affairs. LARA regulates all health care professionals, including physicians, nurses, pharmacists, dentists and dental hygienists, amongst others. On top of all the things one must muddle through when facing a DUI, just about everyone who holds any kind of professional license will have the added stress and task of dealing with the agency holding his or her license, as well. The good news, however, is that almost without exception, this never turns out nearly as bad as it seems.

Deductible-Medical-and-Dental-Expenses-3.jpgIn fact, the whole element of personal stress is an important side effect of a DUI charge. Most of my clients are professionals of one sort or another, and none of them takes a drunk driving charge lightly. Given the more cerebral nature of my clientele, I probably answer a lot more questions, both specific and hypothetical, than a room full of other DUI lawyers. My clients come in with serious and valid concerns, and usually lots of them. For some people, the lawyer whose best description of him or herself as "tough" and "aggressive" is a good choice, but usually not for the type of client I represent. Instead, my clients usually come in feeling like a black cloud has parked itself over their heads. An important part of my job is to help my client understand that while these "doom and gloom" feelings are understandable, at least early on, they are (and will prove to be) misplaced.

There are several considerations that dictate the character (a nice, replacement word for "seriousness") of a drinking and driving charge. Chief amongst them is where the arrest took place. Location matters in a DUI case, and probably more than any other single factor. It goes without saying that no one plans to get arrested for drinking and driving. A DUI case is, more than anything else, an accident of geography, meaning where you happen to be. The simple takeaway here is that some places are much tougher than others, and it's always better, if charged with a drunk driving offense, to find one's self in a more lenient jurisdiction than not. Beyond the "where" of a DUI is whether or not any given case is a 1st offense, a 2nd offense, or a 3rd offense. Admittedly, most professionals don't wind up facing a 3rd offense (felony) DUI, but it does happen. There is indeed a reason why the "where" issue was addressed first: There are some places where a 2nd offender may feel less harshly treated than a 1st offender in a different court. This, of course, is the exception, and not the rule, but anyone looking to hire a DUI lawyer will notice that, as he or she calls around, one of the first questions asked by the lawyer or staff is "where"? Usually, the inquiry as to whether or not you have any priors will follow thereafter...

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July 17, 2015

Ignition Interlock Violations in Michigan - What's your Plan?

Ignition interlock violations are an unfortunate and all-to-common reality for many people. There is probably nothing worse than having won your license back from the Michigan Secretary of State only to later have it yanked from underneath you. Worse yet, many of the cases I see, and certainly all of those I take, are for people who have genuinely stopped drinking. For a person who is really sober, an interlock violation just seems "wrong," and it is easy to think that all you have to do is just get a hold of someone and explain things. The cold reality, however, is that once you receive the notice of violation in the mail, it informs you that the decision has already been made to re-revoke your license. The only thing you can do about it is to promptly file for a hearing and try to win your license back - again.

technical-problems.gifFirst, it is important to note that there is a time limit within which you must file for a hearing. In the case of an interlock violation, you must request a hearing within 14 days from the date your license is revoked again. Technically speaking, this re-revocation is called a "reinstatement of original action," that original action being the revocation of your license. If you don't file your request within 14 days, then you will not even have a chance to get your license back. When someone hires me, my staff will take care of filing this request, and I cannot imagine that it's any different in any other law office. If a person has not hired a lawyer, then he or she should still send in for a hearing before the 14 days runs out. Any lawyer who comes on board thereafter can always catch up.

In the case of an interlock violation, the stakes are higher than just winning back the ability to drive again. If a person does not file for a hearing, or loses at a hearing, then the violation allegation(s) against him or her essentially stand as true. If, for example, it is alleged that Debbie the driver had 3 start-up failures within a few weeks, and she loses her hearing, her case file reads as if she got caught drinking and had her license re-revoked. The ramifications here are huge: Debbie's old sobriety date will no longer count. Whenever she tries to get her license back again, she will have to very clearly address the prior violation as part of her new case. Even if Debbie simply missed the deadline to file for a hearing on her violation, the fact that she didn't show up and contest the matter doesn't look good. Putting up a good defense is not only key to winning (or, in the case of an interlock violation, not losing), but also has important implications for the future, and that even extends to unsuccessful violation appeals...

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July 13, 2015

Michigan OWI 3rd offense Charge (with 1 or 2 old Priors)

Under Michigan's DUI laws, a 3rd offense OWI charge at any point in your life is a felony. This often comes as further bad news for someone who remembers when a 3rd offense could only be charged as a felony if a person had 2 prior drunk driving convictions within 10 years. Since 2007, however, the 10-year period for prior DUI's has been eliminated, meaning that a person who is charged with a 3rd DUI crime at any point in his or her life will face a felony. Once someone learns this, the next question, almost asked instinctively, is something like, "Doesn't the fact that I haven't been in any trouble for ___ (fill in the blank) years matter," or "Doesn't it matter that my last one was ___ (fill in the blank again) years ago"? The short, simple answer, at least as far as the 3rd offense DUI charge goes is "No." However, in terms of outcome, meaning the actual results of the case, the answer is decidedly "yes, it does matter."

Thumbnail image for Thumbnail image for Thumbnail image for Naslovna 1.2.jpgIn this article, we'll take a brief look at the situation in which a person who has 2 prior DUI convictions, and where one (or both) occurred more than 10 years ago (and maybe even way longer that that) finds him or herself charged with a 3rd offense (felony) drinking and driving charge. Without question, everyone who gets released from jail after a 3rd DUI arrest walks out in a kind of state of shock. For most people, the words "felony" and "prison" set off huge alarm bells. No matter how long between DUI's, the court system will just assume that the person has had a drinking problem since his or her first DUI all the way up to this most recent offense. By contrast, when a person picks up his or her 3rd DUI after a long time between any of the 2 priors, he or she may think this shows that his or her drinking is or has not been some kind of out-of-control problem. Things always look different from the "other side." Believe me, the Judge will see a problem; the performers facing the audience always experience the show differently than the audience in the seats looking at the stage.

In terms of experience and perspective, remember that the court system handles an endless stream of DUI cases and sees every kind of drinker, from people who get a single DUI and never get in trouble again to people who rack up 3 DUI's in a single year. The court system is inherently biased toward the belief that most DUI drivers have, or at least have an increased risk to develop a drinking problem. By the time someone is facing a 3rd offense charge, every Judge out there will conclude, as a matter of fact, that the person has a troubled relationship to alcohol. This means that if you're going to save your neck in this situation, you will either get in step with this way of thinking, or get rolled over by it, and let me be perfectly clear: Unless you get really lucky and the police botched your case so bad that the Judge just tosses it out of court, this is where your efforts and attention must be directed if you want to see the best and most lenient outcome possible in your case...

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July 10, 2015

Real Sobreity is key to Winning a Michigan Driver's License Restoration Appeal

The most important thing you need to win a Michigan driver's license restoration appeal is real sobriety. You must have honestly quit drinking, and done so for good. The whole point of the license appeal process is to make sure that anyone who is even considered for re-licensure has genuinely stopped drinking, and has the commitment and tools to remain alcohol-free for life. In legal terms, this translates into 2 issues: That your alcohol problem is "under control," and that it is "likely to remain under control." Once you've proven that you have stopped drinking, the more important consideration is that you will remain a sober, non-drinker, from there on out. In this article, I want to talk about sobriety, and how really being sober is a lot different than just not drinking, or not being drunk.

Quote 1.2.jpgTo win a license appeal, you have to show the Michigan Secretary of State, and its Administrative Hearing Section (AHS), the bureau that decides license restoration cases, that you are a safe bet to never drink again. When someone has lost his or her license for multiple DUI's, the Secretary of State will never get mixed up with any notion that he or she can safely have a drink once in a while. If you're ever going to win your license back, you have to prove that you and alcohol live in completely different worlds; different galaxies, really. This means that you must prove that you have gotten sober, and will remain sober. It's not good enough to show that you have just stopped drinking. You must show that you've quit for good; that you have, as the saying goes, put the plug in the jug.

Sobriety is, more than anything else, a state of being, or a state of mind. Almost everyone quits drinking after what is often described as "hitting bottom." Note, however, that I said almost everyone. There are some people (admittedly, a very small percentage) for whom the decision to stop drinking comes more slowly and more thoughtfully. However it's made, the next consideration is making that decision stick. It's easy to quit drinking, but much harder to stay quit. And as anyone in recovery knows, there is always this persistent little voice that always wants to tell you that it's okay to pick up. A client of mine once called that voice his "inner idiot." Another client said that being strong in recovery is the ability to not pay any attention to this little voice...

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July 6, 2015

1st Offense DUI in Macomb, Oakland or Wayne County, Michigan

For most people facing a 1st offense DUI in Michigan, the case marks their first adult contact with the criminal justice system. The sense of apprehension about what will follow can fill the coming days with a sense of fear and doom. In this article, I want to alleviate those misplaced concerns, not with the balm of patronizing reassurance, but rather with a simple overview of how things really work, and why that means, even in the most clear-cut of cases, that things aren't anywhere near as bad as they seem. We'll see that most of the things that people worry about don't ever happen, and that with some intelligent and proactive effort, we can avoid or minimize many of the other, less talked about consequences of a drunk driving charge.

Thumbnail image for tricounty_map 1.2.gifA DUI can, in theory, have up to 6 steps: Arrest, arraignment, pretrial, trial, screening and sentencing. In the real world (meaning in over 99% of cases), there is almost never a trial, and the arraignment stage can usually be skipped, as well. This means that most people will go from arrest to pretrial to screening, and finally to sentencing. Some courts will not allow the arraignment to be waived (skipped). This means, then, that you will go through 4 or 5 of the steps listed above. As noted, very few cases go to trial because almost none of those (0.17% - that's zero point one seven percent) ever win; more on that later. Accordingly, we wont waste any time talking about a trial that isn't going to happen anyway, and focus, instead, on the steps just about everyone will take.

Arraignment. You already know what happens between the time of your arrest and release, so there's little use in going over that. We'll begin with what happens after you get out of jail and get your car back. In some few cases, a Judge or Magistrate may have already arraigned you before you were let out of jail. In most cases, however, you will either be given a court date or instructions to follow up to learn when you're due in court. This first court date is called an "arraignment," and all it really amounts to is a proceeding where you're told exactly what charge or charges you'll face -OWI (Operating While Intoxicated), High BAC, DWLS (Driving While License Suspended) and/or Open Intoxicants in a Motor Vehicle. Also, your various constitutional rights are outlined. In most (although not all) local, Detroit-area courts, this arraignment can be "waived" by the lawyer you hire so that you don't have to go to court or do anything. Although not very common in 1st offense cases, some people wind up having to "test" as a condition of bond or release, meaning they have to provide breath or urine samples as required by the presiding Judge or Magistrate. This is one of those things that you understand rather well if (and because) you're doing it, and that we can otherwise explain later, if you're not and it becomes necessary...

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July 3, 2015

Driver's License Restoration Appeals in Michigan - The big Picture

I have written rather extensively about the need to be eligible to file for and then win a Michigan driver's license restoration or clearance appeal. In this article, I want to begin with an example of how a little-known facet of the license reinstatement process demonstrates a much larger, very important point: There are loads of little things that you will never understand by just learning the rules governing license appeal cases. Of course, your mandatory revocation period must pass before you can begin the license appeal process. Beyond that, the primary rule governing license appeals speaks of either 6 or 12 months abstinence as a pre-condition to win back your license, but that is only half the story. I recently wrote an article explaining that you must be off of probation to win a restoration appeal. The Michigan Secretary of State's Administrative Hearing Section (known as the AHS, and until recently the DAAD, and not that long ago, the DLAD) holds that anyone on probation or parole is living in what it considers a "controlled environment" because he or she is under orders to not drink, and therefore cannot really prove that such abstinence is voluntary. In the real world, this all boils down to mean that you need to prove more than a year of abstinence (I generally prefer to start with at least a year and a half), with a decent sized portion of that having accrued after your probation ended. You'll never get this just by reading the rules.

big_picture_title_thumb-1.2.jpgThe point I want to make is that even if you are a lawyer and memorize all the license appeal rules, you wouldn't know about the "controlled environment" holding unless you spend your time slogging through the trenches of the license appeal world and all the court decisions that interpret the application of those rules. The whole concept of a "controlled environment" is not in the rules, but rather part and parcel of how they are applied and interpreted. This is precisely why so many "do-it-yourself" appeals to lose, and why it's hard even for a lawyer, unless he or she concentrates in this rather niche field, to win these cases. It's usually what you don't know that will trip you up in license restoration cases. No matter how long you've been sober, there is a specific process to follow here. You need to know exactly what to prove and how to prove it, and that can only be learned through extensive trial and error.

I know a lot about license appeals, but to be perfectly honest, almost all of it was learned the hard way. The good news is that there came a point many years ago when I realized that I knew enough to know when I don't know something, and to be able to assess a case and, if I accept it, guarantee that I will win it. Yet there is no denying that I had to earn - and learn - my way to that point. The problem for anyone who tries and loses a license appeal is that whatever you missed, and no matter how sure you feel you'll get it right next time, that next time cannot happen for another whole year. Sure, some people do get lucky and win, but most do-it-yourselfers do not. A person can only file 1 driver's license restoration or clearance appeal per year in Michigan, so losing means bumming rides for another 12 months...

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June 29, 2015

The Single most Important part of Michigan DUI Cases

It is very easy to get caught up in legal and/or technical examinations of Michigan DUI charges. After all, everyone arrested for a drunk driving charge hopes that a sharp lawyer can find some problem with the evidence and get the whole case dismissed. And while that certainly can happen, such an outcome has always been the exception, and not the rule. In fact, the cold, hard facts, as verified in the Michigan State Police Annual Drunk Driving Audit, shows that in 2013, the last year for which numbers are available, only 511 regular DUI cases were thrown out of court, compared to a total of 32,752 convictions for those same offenses. If you do the math, you'll see that a mere 1.56 percent of people charged with OWI (Operating While Intoxicated) and OWVI (Operating While Visible Impaired) were lucky enough to have their cases dismissed. Here's the thing: It is always important to exhaust every possibility to get your case thrown out, but as these numbers clearly show, it is just plain dumb to bank on that as your entire and only defense plan.

important 1.2.jpgInstead of hoping to be part of the lucky 1.5 percent (511) whose cases get thrown out of court, it makes far more sense to prepare to make things better in the statistically far more likely event that your case does not (32,752) get "knocked out" by the Judge. And for all the stuff about traffic stops, breath tests and whatnot, the single most important real-world part of every Michigan DUI case is the alcohol evaluation (this is a written test) that must be completed and "scored," by law, before the Judge imposes sentence. Let me try to simplify this a bit: The overwhelming majority (98.26%) of DUI charges result in a conviction. Almost all of these occur through a plea, or plea bargain. Every case, except those few that are not tossed out of court, must follow the legal process and go through certain steps. The step that is the subject of our discussion here is the alcohol assessment that is required under Michigan's DUI laws. This is sometimes called an "alcohol screening," "substance abuse assessment," "substance abuse evaluation," or just plain "screening" by different Judges, but it all means the exact same thing: You will complete a written test ("screening instrument") and your responses will be checked against an answer key to determine your score.

The belief is that your score somehow accurately (enough, at least, for the legal system) determines whether or not you have, or are at risk to develop, a drinking problem. These "findings" are then sent to the Judge so that he or she can order, at sentencing, any counseling, education or treatment that it is believed you need. There are about ten million problems with this kind of reasoning, absolutely none of which will do any good in the context of making your DUI case any better. However, the screening is so critically important in determining what actually happens to a person in a DUI case that it became an important reason why I returned to a University campus and undertook a post-graduate program in addiction studies. I needed to learn things from the clinical side, since the whole screening process is really a clinical undertaking, even though in DUI cases it is administered and scored by a non-clinician. Now, because of that formal, specialized training, I can have a far more substantial and positive impact on the actual outcome of DUI case than anyone without such knowledge. Of course, the power to decide what happens to you always resides with the Judge, but when I walk into any courtroom, I do so as the foremost expert on alcohol issues, and that makes me very useful (and unique) as a DUI lawyer...

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