August 12, 2013

Michigan Driver's License Restoration and DUI - Problems with Ignition Interlock

In my day-to-day work as a Michigan driver's license restoration lawyer and a Michigan DUI attorney, I deal with the whole panorama of problems that arise for the use of an ignition interlock unit, from false positive test results to the utter lack of any real "tech support" or help from the vendors. In fact, it's hard to use the term "ignition interlock" and not use the word "problems" in the same sentence. While the technology has come a long way over the last number of years, it's still fraught with innumerable problems. In truth, it's far more a matter of luck, rather than anything else, if and when someone drives a year or more driving with one of these units and things go smoothly.

A few days before this article was written, I attended an ignition interlock seminar put on by one of the vendors of these units. I learned a number of things, but chief amongst them, and somewhat to my dismay, is that I happen to know a lot more about these units than most of my colleagues. It's not that I'm any smarter than anyone else, but rather that I have loads of experience with these devices as part of my Michigan driver's license restoration practice. Unfortunately, or perhaps fortunately for the reader dealing with an interlock nightmare, virtually all of my considerable interlock experience is the result of problems caused by these units. It's likely that if you're reading this, you've run into some problem with yours, or are looking for someone that has.

InterlockDemo.jpgRather than laundry list what can go wrong with these units, I think that a few significant points from my recent seminar are relevant here. First, although the particular vendor hosting the seminar did a good job of showing how much these devices have been improved as a result of new and evolving technology, it had to be admitted that they are machines, and, as a result, they do, admittedly, malfunction.

Second, and perhaps most significant, there is really nobody who works with these units who has any comprehensive knowledge about them. That's not to say that there aren't engineers and other technical people at the design and manufacturing level who don't know what they're doing. In the field, however, in terms of lawyers, Judges, probation officers, Michigan Secretary of State Driver Assessment and Appeal Division (DAAD) hearing officers, and even service technicians, it seems that there is a decided lack of understanding about ignition interlock units, how they work, and how often they can be wrong, as well as why they can appear to be functioning normally and produce inaccurate results.

I left the seminar feeling like more of an expert than anyone there because I have a thorough knowledge of the legal situations in which ignition interlock units are used, the evidentiary standards that these units are supposed to meet, both in court and before the Secretary of State, meaning the DAAD, the standards of reliability that are (often incorrectly) attributed to them, and the practical and technical considerations that govern how they work in the real world.

Third, the science "behind" ignition interlock units is very different from the science behind the "DataMaster" breath testing machine used in police stations after a person has been arrested for a DUI. This is an area I intend to cover in another article or articles, but the key point here is that the DataMaster is supposed to give a very accurate reading of how much alcohol you have consumed. It goes without saying that there are limitations with that, and that is fertile ground for a DUI lawyer to challenge the evidence. Even so, we are told that the DataMaster can and does distinguish between "mouth alcohol," meaning residual amounts of trace alcohol NOT consumed but left in the mouth from things like food and mouthwash, and real alcohol that has been consumed by a person. I have personally attended seminars where that has been demonstrated to be untrue, but the larger point that relates to an ignition interlock unit is that even the manufacturers warn that the unit cannot tell the difference between trace alcohol from mouthwash or straight whiskey. As the presenter at my recent ignition interlock seminar explained their limitations, "These things detect alcohol. Alcohol is alcohol."

And for all of that, anyone dealing with an ignition interlock unit clearly did not win any evidentiary challenges to the DataMaster breath testing machine used in the police station in his or her underlying DUI case. That brings us to the present...

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August 9, 2013

Losing your Michigan Driver's License Restoration or Clearance Appeal

I don't lose license restoration cases. As a Michigan driver's license restoration lawyer, I provide a guarantee that, if I represent you, I'll win your case and get you back on the road. This makes me stand out as a Michigan license appeal attorney, and in a way that makes me proud of the success my standards and efforts produce. I have written extensively about the license appeal process, including the dangers of either trying it alone, without representation, or by hiring some lawyer who claims to "do" license appeals. I am way beyond having to drum up business, so when I caution anyone about trying to represent themselves, I really mean to help them.

In more than 22 years of handling Michigan driver's license restoration appeals, I have been hired more times than I can count by people who have tried unsuccessfully to win their own license appeals. My office is called almost daily by someone who has just opened his or her mail only to learn that they've lost a "do it yourself" case. In many of these cases, the person who filed the appeal really has quit drinking, and they find it hard to understand how they could lose. Frustrated, they get on the computer, find my blog or site, and then call my office, wanting to appeal. For many of these folks, money isn't an issue, either, at least at this point.

Loser 2.2.jpgSuch people almost sound like the perfect clients, don't they? Except that, in just about every single instance, all the money in the world can't fix the damage done by someone handling his or her own appeal. The same also holds true when some lawyer for whom license restoration appeals are not the basis of his or her practice tries their hand at one. License appeals are governed by what I call a "million little rules," and even knowing most of them isn't good enough. If you're going to win license cases with anything other than luck, you have to know all the rules and the nuances involved in their interpretation. For my part, I seldom bother looking over a lost case with any intent to take the case and appeal the matter to court because almost every time, the appeal has been botched in some way by the person who handled it, lawyer or not.

Amongst the most frequent reasons resulting in a denied appeal are problems with the substance abuse evaluation, variances or lack of specificity in the letters of support, unsatisfactory testimonial answers by the person filing the appeal, or pretty much anything to do with witnesses. As I see it, only an amateur will call someone in to testify as a witness. I never call witnesses, and I not only win virtually every case I take the first time, but back up my claims with a guarantee.

However it works out, when someone loses, we can safely say that things didn't go as planned, and the person thereafter has 2 options: Wait until next year to try again, or appeal to court. Then it's left to me to tell them that appealing to court is almost never an option, or at least one that has any chance of success. Usually, they'll sigh, and then ask "So I just have to wait until next year, then?"

"Yes," I'll say. Invariably, the person will sigh again, thank me for my time, say they wished they had found my blog and site before they filed their appeal, and then tell me they'll be calling back when their next eligibility date approaches. And they usually do. Even though this is the cycle I live over and over, and even though it's how I earn my income, I wish I could find some way to break it by getting to these people before they go off and do their own license appeal. It's not that there's any more money in it for me; it's just that there's a license in it sooner for the vast majority of those people hell bent on trying the "do it yourself" license appeal only to find themselves ensnared by things they had no idea even existed. There's a decent chance that if you're reading this, you're in that group. And if that's the case, there's an equally good chance that you want to call my office anyway and just ask about your case, hoping that it's somehow different. This is particularly true if you've made the rather commendable transition from drinker to non-drinker. I can certainly help you figure that out...

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August 5, 2013

Suspended/Revoked License (DWLS/DWLR) Charges in the Detroit Area

Almost everything I do in my role as a Michigan driver's license restoration attorney and a Detroit-area (meaning Metropolitan Detroit, Tri-County) DUI and suspended license lawyer has something to do with automobiles and traffic stops. Everyday, I represent either someone trying to win back a Michigan driver's license (or at least obtain a clearance of the Michigan hold on their driving record), someone facing a DUI, someone charged with driving on a suspended license in the Detroit area, or even a person charged with possession of marijuana (or other drugs or weapons) found as a result of a traffic stop. In short, virtually everything I do involves motor vehicles. Many of my clients are trying to get back on the road, some face being taken of the road, and others just got in trouble while on the road. Still, there's a theme here...

When a person has had his or her Michigan driver's license suspended or revoked, and then gets caught driving, they are often unaware the potential long-term dangers that lie ahead. This has nothing to do with going to jail; I keep my clients out of jail as a matter of my day-to-day work. Instead, the real danger of a suspended or revoked license charge involves additional suspensions and added costs and financial penalties that can go on forever, and continue to multiply. There's an old saying to the effect that once a person gets caught in the system, they seem to be stuck in it forever, and while I don't completely agree with that, the cold truth is that once a person gets caught driving with a suspended or revoked license, unless things are made better and fixed right away, he or she can get become ensnared in a tangle that never seems to let go. As some people put it, once you're on the roller coaster, you can't get off.

Suspended 1.2.jpgIf there's a brutal lesson to be learned here, it's that the best time to hire a suspended license lawyer like me is the first time you face such a charge. Too many people, acting on the mistaken belief that a first offense for driving on a suspended license isn't that big a deal, will just go with a public defender, or, worse yet, will handle things on their own. Meanwhile, while their first concern is staying out of jail, they'll lose sight of the long range consequences that the wrong kind of plea deal can bring, and will accept a plea bargain that simply avoids jail, and/or even avoids points on their driving record, not realizing that such a disposition will, in many cases, cause their license to be suspended or revoked further.

At the time, this often doesn't seem so serious, and the person thinks he or she can either get rides of the next year or years, or will be careful (and lucky) enough to not get caught driving, if they must. But this doesn't usually work out. As far as luck goes, anyone having to think about these things in the first place will require a drastic change in luck right out of the gate. To put it another way, if luck had anything to do with it, you wouldn't be in this boat to begin with.

The reality of life is that you need to drive. With only the rarest of exceptions, not being able to drive limits everything you can and/or will do. The longer you're without a valid license, the more you won't be able to do, like look for or accept a better job, or the more chance you'll have to take to get and hold on to those things. While there are lots of exceptions, it does seem that once a person gets caught driving without a license, things begin to pile up, and those things almost always involve more suspended and revoked license charges. Everyone to whom this happens was rather sure that it wouldn't, but then it did. It's just better to do things right the first time so that you can keep your license, or, if you don't have one, get it back sooner, rather than later.

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August 2, 2013

Detroit DUI means Metro-Detroit, Tri-County area Drunk Driving

Amongst the things that define a DUI lawyer, or really any attorney, for that matter, are two somewhat different, and often confused things: Where one's office is located, and where one practices. These are decidedly not the same things, although the "where" part makes them sound interchangeable, at first. In the geographic sense, for example, I am a Macomb County DUI lawyer. In terms of where I practice, however, I rather often elect to define myself as a "Detroit DUI lawyer." What I really mean, of course, is that I'm a Metropolitan Detroit, as in Tri-County (Macomb, Oakland and Wayne), DUI lawyer. Specifically I not only practice regularly in the courts of the Tri-County area, but I only practice here. This means that I do not defend against DUI charges outside of Macomb, Oakland or Wayne Counties. Consequently, I can use my intimate knowledge of how things are done in all of the courts in the greater Detroit area to your advantage.

I think this is rather vitally important. While I have written about the significance of location in a DUI case both on my website and on this blog, almost by necessity, those articles have tried to explain to someone facing a DUI why the "where" part of his or her case is so important to him or her. I thought I might turn the tables a bit here and present things from my side, as the DUI lawyer. This article will be a bit different than my usual examination of how cases work. Instead, and as I like to do from time to time, I will pull the curtain back a bit and give the reader something of an "inside look" at the practice of law (here, our focus will be on handling a DUI case) from the lawyer's point of view.

Mapper 1,2.jpgPerhaps the best way to do this is to remind the reader of one of the first questions he or she is asked when calling or emailing around to the various DUI lawyer's you're screening. If you haven't started making calls to or emailing lawyers yet, keep this in mind as you do. Pretty much every DUI lawyer will ask where your drunk driving arrest took place amongst his or her very first questions. There's a reason for this, and it doesn't have to do with mileage, either. Where your case is pending, at least to an experienced DUI lawyer, like me, provides an entire framework for how things will play out your case.

Consider these facts: If you're arrested in any of the Oakland County cities covered by the 48th district court in Bloomfield Hills, the 52-3 district court in Rochester Hills or the 52-1 district court in Novi, you will almost invariably be required to submit to alcohol testing as a condition of your bond following your arraignment. The same holds true if you have been arrested for a DUI in St. Clair Shores, even though it's located in Macomb County. However, if you were arrested in any of the cities covered by the 41-B district court in Clinton Township, the 41A district court in Shelby Township, the 42-2 district court in New Baltimore, the 39th district court in Roseville, or in the 41-A district court for the city of Sterling Heights,, there is almost zero chance of that. In fact, if you were arrested in any of those latter places, you probably won't even have to go to court for an arraignment.

That's only the beginning. When I find out where a case is pending, my mind immediately goes to the Judge or Judges presiding in that court. While it's my job to get along with every Judge before whom I appear, any lawyer who pretends to be equally happy with every Judge before whom he or she appears is doing just that; pretending. In some places, that means I hope a certain kind of DUI is assigned to one Judge, while another kind of DUI is given to a different Judge.

Make no mistake about it, either; DUI cases are as different as flavors of ice cream. Some DUI cases involve accidents. Others come about because of a cell-phone tip. Some people have really high BAC scores, while others aren't too far over the limit. Some Judges have more of a "thing" with one kind of case over another. When a prospective client tells me, for example, that she blew a .21 and was arrested in city X, I know that, no matter how strong the evidence in her case turns out to be, things will still go a lot smoother than if, by contrast, she only blew a .16 but was arrested was in city Y. "Where" makes a huge difference in a DUI case.

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July 26, 2013

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

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

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

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

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

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

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July 15, 2013

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

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

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

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

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

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

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

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July 12, 2013

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

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

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

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

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

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

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

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

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

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

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July 8, 2013

Michigan Driver's License Restoration or Clearance Eligibility

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

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

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

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

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

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

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July 5, 2013

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

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

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

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

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

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

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

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

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July 1, 2013

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

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

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

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

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

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

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

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

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June 28, 2013

Michigan Driver's License Restoration - AA or no AA? - Part 2

In part 1 of this article, we began a review of how AA attendance can be helpful, but is absolutely not necessary to win a Michigan driver's license restoration appeal. As a Michigan driver's license restoration lawyer, I work with both a clinical and legal knowledge of the principles of recovery every day. I have to make sure that we prove to the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD), by "clear and convincing evidence," that your alcohol problem is "likely to remain under control." This means that we have to fit the clinical indications of your transition from drinker to non-drinker - meaning your recovery - into the legal confines of proving that you're a safe bet to never drink again. And we have to do it in a way that conforms with the understanding of the hearing officers that make the final license restoration decisions. To accomplish this, I have to know specifically what kind of proofs each hearing officer is looking for.

Put more simply, we need to prove your sobriety to a hearing officer's satisfaction. Not drinking is a start, but real sobriety also involves an understanding of the need for and a real commitment to stay alcohol-free. Nothing has come close to exploring and explaining the idea that a person simply cannot control or moderate his or her drinking, and therefore must stop completely, like AA's fist step. This cornerstone concept of AA really shapes and defines the whole idea of getting over a drinking problem, and is a familiar context in which to examine a person's commitment to sobriety, even if the person doesn't go to AA.

Groupies 1.3.pngThink of it this way: If I were to talk about a specific license appeal and say we've "hit a home run," or we've "struck out," don't those descriptors help define your understanding of what happened? You know, almost by instinct, that in the "home run" case, we won, and in the case where we "struck out," we lost. Using these familiar terms is helpful by way of description of our success or failure, but it doesn't mean that we're actually playing baseball. Thus, the concept of sobriety is at least described, often enough, in "first step" terms, even for those who don't know the first thing about AA. The bottom line is that future sobriety is directly correlated to an internalized belief that you cannot drink again.

Of all the gifts that AA has passed down into the world of recovery, nothing comes close to its first step. While the language itself ("We admitted we were powerless over alcohol-that our lives had become unmanageable") is rather esoteric to the outsider, the translated meaning is simple, direct, and clear: You have to stop drinking. At some point, everyone in recovery learns this one basic fact - moderation does not work. Some people rack up an entire series of life problems, including multiple DUI's, trying to control or cut down or otherwise manage their drinking, but sooner or later, those who get better come to realize that the only way to control their drinking is to not drink at all. You can call that a recognition of your powerlessness over alcohol, or you can consider yourself completely empowered over alcohol, as long as you choose not to drink, but semantics aside, it's the same thing: Recovery begins when the drinking ends.

If you stick around AA long enough to learn some of the nuances of the first step, you'll hear all kinds of things. Many, if not most, of these "first step" idioms have little to do with the actual language of the first step, but have become so attached to the whole concept of the "first step" that they seem eternally bound together. Of particular help to the newcomer to abstinence is the whole "one day at a time" phenomenon. You don't have to go to AA to learn this. Should you find yourself sitting in front of a knowing counselor or therapist, or in the right rehab program, you may very well learn that early in a person's recovery, when the prospect of never drinking again seems incredibly hard to grasp and rather scary, it can be very helpful to just segment the commitment to not drink into 24 hour periods. You learn, in other words, to take it "one day at a time."

Therefore, if someone expresses to their counselor, or to a table of AA members that they don't know how they'll get through the rest of their lives, including every future holiday season, without so much as a glass of wine, they'll be taught about one day at a time. "Can you get through today without a drink?" will often be the reply, to which the person will respond "sure." "Then just focus on today. You can worry about tomorrow, tomorrow." This simple little trick has helped countless people string enough days together to add up to weeks, then months, and then years.

By contrast, some people come to the point of quitting drinking knowing that they need to quit forever. This gets to the larger point of this whole article; different things work for different people. The key to getting and staying sober is finding the one that actually works for you, not what someone else says will work for you.

Continue reading "Michigan Driver's License Restoration - AA or no AA? - Part 2" »

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June 24, 2013

Michigan Driver's License Restoration - AA or no AA? - Part 1

As a Michigan driver's license restoration lawyer, I either win back your Michigan license or I win a clearance of Michigan's hold on your driving record that prevents you from getting a license in a different state. Specifically, I win an appeal of the Michigan Secretary of State's revocation of your driving privileges by challenging it at a hearing before the Driver Assessment and Appeal Division, known as the DAAD, and sometimes (although mistakenly) still called the "DLAD," even though that name changed to the DAAD a number of years ago. One of the most common questions I am asked about the whole license appeal process is whether or not a person needs to be going to AA in order to win. The answer is no, and this 2-part article will explain why.

On both my website and in the license restoration articles on this blog, I have given separate treatment to how and why AA attendance is not necessary to win a license appeal, as well as how a person's current attendance can play a helpful role in a Michigan license restoration case. This time, I am going to squeeze both of those perspectives into a single article. Accordingly, and to keep this piece of readable length, I'll be summarizing, more than explaining, certain elements of the license appeal process in order to make the larger point.

sharing 2.1.jpgFirst and foremost, it would be disingenuous to deny that being involved in AA is anything less than helpful in a Michigan license appeal. Everybody knows about AA, even if they don't know the first thing about any of its 12 steps. Helpful is a far cry, however, from necessary. AA is definitely not necessary to win a license restoration case. More importantly, not going to AA does not pose any kind difficulty to succeeding with your appeal, if things are done right.

For as much as we can say that AA "helps" a license appeal, we should really ask why. The 2 main legal issues in a license restoration or clearance case are:

1. That your alcohol problem is under control, and
2. That your alcohol problem is likely to remain under control.

This means, more than anything else, that you have to prove that you're not likely to ever drink again. To put it another way, you have to prove (and the state requires all your proof to be by "clear and convincing evidence") that you have the commitment and ability to remain abstinent from alcohol for the rest of your life.

Beyond the fact that AA is about the first thing that comes to mind when someone says "drinking problem," what is it about AA that's so special, and why, then, if it is so helpful to a license appeal, can we honestly say that it is not necessary? As we survey the landscape of Michigan license restorations and where AA fits in, we'll look for answers to these questions.

Continue reading "Michigan Driver's License Restoration - AA or no AA? - Part 1" »

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June 21, 2013

Detroit DUI - Your Personal Accomplishments Matter

In a recent update to the DUI section of my website, I addressed how critical the concept of "who you are" is in a Michigan Drunk Driving case. This article will be an adjunct to that. In my role as a Detroit DUI lawyer, the single most important part of my job is to protect my client's interests. It has long seemed to me that there is a tendency (more like a failure, really) amongst DUI lawyers to focus rather exclusively on the evidence in a case, without enough consideration of the person facing the charge. Your personal characteristics are an important asset that has crucial strategic value in the proper handling a DUI case, at least if you're a "solid" person with a good background.

To be sure, someone with a bad record, or who doesn't have much going for him or her would be better off skipping over any personal biography and just keeping the focus on the facts of the case. If you're a good person, however, that's just an incomplete way to handle a DUI case. Often enough, a person will think, if not ask, something like "Doesn't it matter that I have never been in any kind of trouble before" or "Don't you want to know about me?" The answer to both questions is a resounding "yes!"

GoodPerson 1.2.gifWithout question, NOT having been in trouble before is an asset. Yet the honest flip side to this, in a DUI case, is that simply not having any kind of prior record doesn't get you a free pass. Even so, it's the context in which your lack of any prior record is presented to the prosecutor and the Judge that matters. Let's consider how two different lawyers might do just that. Let's suppose our imaginary defendant, Donna the driver, is facing a 1st offense DUI in a local, Detroit area court, and that she's 40 years old, with no prior record. In each example, she has hired a lawyer who we'll join in the conference room, meeting with the prosecutor, during the pre-trial of her case:

Lazy Linda the lawyer tells the prosecutor, "My client, the one in this file," (pointing to a file on the prosecutor's desk) "has no priors at all" (meaning no prior record). That's it. Figuring that her client's lack of any prior record is her best asset, Lazy Linda thinks she's just pulled the trigger on her biggest gun.

Andy Ambitious the attorney takes a different approach. He sits down across from the prosecutor and identifies his client as Donna. "Let me give you a little bio on her," he begins. "First off, she's 40 years old and has never been in any kind of trouble before; not even a recent traffic ticket. She is a nurse at [such and such] hospital, and has been there for the last 8 years. She's married, and has 2 kids. Donna has worked hard her whole life, and has always done the right things. She earned a nursing degree, got married and lived like every other law-abiding citizen. She had to take a break from school when she had her first kid, but she went right back and graduated with honors. On top of all that, she's a really nice person, and if you met her, you'd like her. She does lots of volunteer and community stuff; she helps out at all her kid's school's bake sales, and does all kinds of other stuff like that. She has literally freaked out over this; she's really paranoid about losing her license because she is sometimes on call at work. She is just the kind of person you'd want as a next door neighbor, and, believe me, as distraught as she is over all this, you can be sure it won't happen again. She's not a big drinker. This is totally out of character for her and what she normally does. This is her one mistake in life; she's earned a break."

It's obvious that "who she is" matters to Donna's case. Is there any question about the importance of using that to her advantage? Lazy Linda made the crucial mistake of turning control of the discussion back over to the prosecutor. Ambitious Andy, by contrast, not only kept control of the discussion, but was directing the outcome of it, as well. These fundamentals of persuasion don't occur in a vacuum; in any "discussion" where a resolution will be reached, there is always a leader. Either you're the leader, or not. There is no middle ground.

There is another aspect to this whole "who you are" subject, as well. It's called "social capital." Just like money, the more of it you have the better, and it's a serious disadvantage to be without it. Social capital refers to things like a person's place in life, and the support of community, family and friends available to them in times of need. A homeless panhandler with no job, few friends beyond those with whom he sleeps under the bridge and only enough worldly possessions to fit in a single grocery bag has no social capital. Donna the nurse has lots of it. While social capital is different than money, there is some correlation between the two. Typically, a person of middle class has a lot of social capital. Social capital matters in a DUI case.

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June 17, 2013

Michigan DUI and Driver's License Restoration Lawyer's Warning to Avoid Nyquil

In my day to-to-day work as a Michigan driver's license restoration lawyer and a Detroit DUI attorney, I spend most of my time dealing with alcohol, and the problems it causes. One of the biggest problems I run into is a positive alcohol test result. If you know what that means, then you're likely subject to some kind of testing, whether it be by ignition interlock, or because you have to provide a breath or urine sample somewhere. If you're facing a DUI in the Detroit area, or want to restore your Michigan driver's license, (or you need a clearance of a Michigan "hold" on your driving record because you want to get a license in another state), your relationship to alcohol takes on a primary role in your life. In the context of a Michigan license reinstatement case, where the central issue is that a person has quit drinking, my efforts are directed to understanding, and then explaining a your former relationship to alcohol, meaning how they made the transition from drinker to non-drinker. In a Detroit area DUI, I have to examine and help you define, and perhaps redefine, your drinking behavior.

In a 1st offense DUI, we'd hope, right out of the gate, that your drinking is not problematic, and that we can show that your arrest represents an isolated and out-of-character incident. In 2nd and 3rd offense cases, the law automatically presumes that a person has a troubled relationship to alcohol, so my efforts are directed to changing both the appearance and the reality of your alcohol use.

cold-medecine-scotch 1.2.jpgThat all sounds great. Yet in the real world, if you're in any of these situations, things aren't really that great. Chances are, you are being (or darn soon will be) tested for alcohol. You are expected to come up clean, and test negative. And for all of that, nothing can cause more immediate damage than a person testing positive for alcohol.

At its simplest, testing is mandated to make sure you're not drinking. It's trouble enough for some people to stay away from alcohol, I've learned. Most often, those who test positive for alcohol are either on bond, while their DUI case is pending, or on probation as a result of it. For whatever reason, a person will take the gamble and drink, figuring they either won't be tested, or enough time will have elapsed so that if they are, their result will be clean. Perhaps they think they have it all figured out; I never get calls from anyone telling me that they drank and didn't get caught. I'm called either when they do get caught, or, even worse, when someone tests positive for alcohol but has not been "drinking."

Almost every week, I hear from someone who has delivered a positive alcohol test but swears that he or she was not drinking. Most often, the story goes that they used mouthwash with alcohol in it, or they were feeling sick and took cold medicine with alcohol in it, sometimes without ever realizing that in doing so, they were "consuming" alcohol. The real problem is that, as much as I hear this story weekly, the people who monitor test results, meaning the Secretary of State, the court, or the probation department, hear it every day, and probably multiple times every day. The famous "Nyquil excuse" has become just that - an all too famous excuse. It has really come to lose any legitimacy as an explanation for a positive alcohol test. This, of course, presents a huge problem to anyone for whom it's the truth.

To put this in perspective, I have a flyer in my office that I received from a local, Macomb County probation officer that his department has posted on the window of its office warning against even trying the Nyquil excuse for a positive alcohol breath test. The information explains that a person would have to drink a rather large amount of Nyquil to achieve anything above a trace BAC result, and that before they were able to consume enough to produce such a high positive test result, they'd be on the floor experiencing seizures as a result of all the other ingredients contained in any kind of cold medicine. The flyer backs up its warning by citing the Michigan State Police toxicology lab its information source.

If I can get one thing across in this article, it's that you have to make an effort to avoid being in this situation. It is my hope that someone will read this article before they take a morning swig of cold medicine, rather than after.

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June 14, 2013

Michigan DUI Second Offense - Staying out of jail

This article is going to be a rather direct examination of what most people facing a 2nd offense DUI in Michigan have as their most important concern: Staying out of jail. As a Detroit DUI lawyer who limits his Michigan DUI practice to the metropolitan Detroit, tri-county area, I have a wealth of experience in these local courts and know how to avoid a jail sentence where and whenever possible. This article will NOT deal with sobriety court: That option is only available in certain places and it's a subject that has its own section on my website.

First and foremost, a DUI case is what I call "an accident of geography," meaning no one plans on getting arrested for drunk driving in the first place, so where it happens is never a matter of design. In that regard, certain courts are just tougher than others. Of the three local, Detroit area counties, the courts in Oakland are much less "lenient" than those of either Macomb or Wayne. That's just a fact. Even so, there are certain cities in Oakland County, like Royal Oak and Huntington Woods, that will seem much more "forgiving" than places like Bloomfield Hills or Rochester Hills. The same holds true amongst the various cities of Macomb and Wayne Counties, and, I imagine, for every county in Michigan with more than one District Judge. The essential difference is that if you had a choice, you'd always prefer to wind up in pretty much any court in Macomb or Wayne over as opposed to anywhere in Oakland County

Jail Hands.jpgLet's start with a dose of reality: The undeniable truth in a 2nd offense DUI case is that you look like you're a danger on the road. I defend DUI cases and keep my client's out of jail all day long by recognizing the way things really work. If you're going to have success at staying out of jail, you need a lawyer, like me, who darn well knows exactly what the Judge assigned to your case is thinking, and one thing you can count on is that there isn't a Judge (or really anybody, for that matter) who doesn't see a second time DUI offender as risky. This means that blundering into court and trying to explain that a second DUI charge is only a case of bad luck, and doesn't really represent anything to worry about, is worse than rolling into court with no plan at all.

Here's the rest of the bad news: The law essentially presumes that you have an alcohol problem in a Michigan 2nd offense DWI case. You are legally and technically classified as a "habitual offender." As a result, the court is required to order you into counseling. There's no way around it. In addition, the law requires that your driver's license be revoked and that you cannot even start the process to ask for it back for at least a year, and only then after you attend and win a hearing before the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). There, in order to win your license appeal, you must prove, by clear and convincing evidence, that your alcohol problem is under control and that it is likely to remain under control. There's a lot to all of this. If you're facing a 2nd offense, you don't need me to "rub it in," but surely you know this is a much bigger deal than a simple first offense.

Here, it's important to reiterate the focus of this article: Staying out of jail in a 2nd offense drunk driving case. We could make an endless examination of the nuances of 2nd offense cases, but here, we're only concerned with not getting locked up. The good news is that if you succeed on that score, you will be free to attend to and deal with all these other things. While none of this is fun, avoiding incarceration in a 2nd offense DUI is the first order of business to which I attend as your lawyer.

For the most part, this is manageable. With a few exceptions, going to jail is not necessarily automatic. Even so, you have to have a plan that takes into account the 3 key variables present in every 2nd offense case. That's where I come in...

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