April 29, 2013

DUI and the HGN ("follow with your eyes, not your head") Test

There is probably no sinking feeling that matches getting pulled over after having had a bit too much to drink. As often as people will have thought, only moments before, that they were okay to drive, there is a sudden concern, if not realization, that their own assessment may have been off a bit as they put the car in park and wait for the police officer to approach. No one can really smell alcohol on his or her own breath, but everyone knows when he or she is unable to walk a straight line.

There is, of course, a lot to a Michigan DUI traffic stop. As a Detroit DWI attorney, I've written rather extensively about many, if not most, aspects of the traffic stop. The fact is that you could fill several volumes about the various facets of being pulled over for suspected drunk driving. To keep our mission manageable here, and to keep your attention, as well, we'll limit our ambitions a bit and take a brief look at one small part of a DUI traffic stop and the field sobriety tests, the horizontal nystagmus gaze (HGN, or as often referenced by the police in the Metro-Detroit area of Macomb, Oakland and Wayne Counties, the "horizontal NSG") test. This is the test where the officer asks a person to keep his or her head still, and follow an object (often a finger, or a pen) using only their eyes. This test has a remarkable capacity to detect that a person is impaired by alcohol.

HGN 1.2.jpgThe HGN test measures how smoothly a person's eyes follow an object moved from one side of their field of vision to the other. As it turns out, absent any of a few particular medical conditions, a sober person's eyes will follow such an object rather smoothly, like a perfectly round marble rolling on a piece of glass. Alcohol affect the movement of the eyes, and as a person becomes more inebriated, his or her autonomic motor functioning likewise become impaired, meaning that they eyes will "jump" (kind of like that same marble being rolled over a sheet of grainy sand paper) and not track smoothly. This is completely outside of a person's conscious control, and no matter how sober or drunk someone may become, they never notice this from their own perspective.

It would be impossible to appropriately summarize the science behind the HGN test beyond pointing out that even the American Optometric Association has passed a resolution endorsing it as an effective test for alcohol impairment. The HGN test is generally believed to be the most reliable of all field sobriety tests. The flip side is that it is also almost generally impossible to independently verify, leaving proof of a person's performance on the HGN test as almost entirely a matter of believing what the police officer says (or writes in his or her report), or not. Not every police officer can administer an HGN test, however. In order to do so, the officer has to be specially trained to administer it. Given it's high degree of reliability and ease of administration at the side of the road, it's little wonder that more and more police officers are receiving this training.

The few exceptions to the scientific reliability of the HGN test as evidence of alcohol impairment don't often occur in real life DUI traffic stops. If you have a brain tumor (and then you'd have to prove that it's the kind that would affect your performance on an HGN test), a brain disease, or an inner ear disease, then this should be explored as a defense. Most conditions that would affect a person's performance on an HGN test would likewise prevent them from driving in the first place. Even then, the likelihood that such a person would be driving, and also drinking (remember, it's not illegal to drink and drive, it's only illegal to drink too much and then drive) is rather remote.

For a moment, let's skip all the lawyer-talk exceptions and exclusions and limitations and focus on the "real world." In the real world, if you're pulled over, and the police officer has you out of the car taking field sobriety tests, it's rather likely you've had something to drink. The National Highway Traffic Safety Administration has sanctioned, or validated only 3 field sobriety tests: The HGN, the heel to toe walk, and the standing leg raise. While many police officers do alphabet and counting tests, neither of them, nor any other test beyond the 3 approved by the NHTSA, really have any real legal weight.

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April 26, 2013

Michigan Driver's License Restoration - Changes in the DSM Diagnosis

In the previous article, I examined the new Request for Hearing form required as of April 1, 2013, by the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). This new form must be filed along with a Substance Abuse Evaluation and Letters of Support in order to begin a formal license appeal. I pointed out that the form only serves to make the license appeal process less clear, and in any number of places, asks for the same information provided by the substance abuse evaluator in the Substance Abuse Evaluation itself. As if that wasn't enough, the DAAD has (once again) completely missed the boat about alcohol and substance abuse issues by failing to prepare for an upcoming and dramatic shift in that field.

In just a few days (May of 2013), the American Psychiatric Association will release the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, 5th edition). This will replace the current edition (DSM-IV TR) and will change the entire landscape of alcohol and addiction diagnosis and treatment. The DSM is the "bible" of diagnoses. If a person is diagnosed as having anxiety disorder, autism, bi-polar disorder, depression or even schizophrenia, it is because he or she meets the specific criteria set forth in the DSM.

questionmark 1.2.jpgThe DAAD requires a DSM diagnosis as part of the Substance Abuse Evaluation form. Only a trained professional can make such a diagnosis. As it stands now, the Substance Abuse Evaluation form has a section that requires the evaluator to provide a DSM-IV diagnosis. That's perfectly fine, but it won't be once the new manual comes out in the coming days. Once the new manual is published, current diagnoses of alcohol abuse and alcohol dependence won't exist anymore.

This is worth repeating: The DSM-5 is expected to eliminate the diagnoses of alcohol abuse and alcohol dependence. In their place, a new category, called alcohol use disorder, will take over. This is really heavy stuff, and I will likely examine the implications in upcoming articles. This is, of course, very relevant to me, not only as a lawyer, but also as someone who formally studies, at the post-graduate University level, the diagnosis and treatment of alcohol and substance abuse issues. For now however, we'll just focus on how the DAAD missed this, and what that means.

To put this in perspective, one of many other anticipated changes in the DSM-5 will be the elimination of Asperger's syndrome as a separate diagnosis. Somewhat related to autism, anyone who has a child receiving treatment for Asperger's syndrome will suddenly find that their insurance company will no longer pay for such treatment once the new manual is published. After all, how can you be covered for a condition that no longer exists? Of course, most of those with a diagnosis of Asperger's will be re-diagnosed under the expanded continuum of Autism disorders, but the point is that, until that's formally done, there will be no insurance coverage.

In the same way, we may expect some fallout for anyone receiving outpatient treatment for alcohol abuse when that diagnosis is eliminated. Sure, such a person may very well be thereafter diagnosed as having "alcohol use disorder," but the one thing we can say for sure is that once the DSM-5 comes out, "alcohol abuse" will no longer exist. How then, can the state ask for and make legal decisions based upon clinical criteria that no longer exist?

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April 22, 2013

Michigan Driver's License Restoration - New Form

The requirements for winning a Michigan driver's license restoration or clearance case changed on April 1, 2013. The Michigan Secretary of State's Driver Assessment and Appeal Division, known as the "DAAD" (and formerly known as the "DLAD") has added a new form that must be filled out and filed as part of a Request for Hearing, Substance Abuse Evaluation and Letters of Support in order to begin a license appeal. As is always the case when the state changes something, the result is usually more red tape or increased costs. At least in this case, there is no cost increase. The same cannot be said about red tape, however.

This new form will undoubtedly cause problems for anyone trying a license appeal on his or her own. While only a few pages long, it would take several installments to cover the requirements and potential pitfalls of this new form, so I'll save a more in-depth analysis for a potential future series of blog articles. For now, we can at least look at a few key points.

paperwork 1.2.jpgHaving already worked with this new form for nearly a month, I can safely say that it represents a stunning achievement in lack of intelligent thinking. While I can understand that there may be someone simple and uniformed enough to draft something rather dumb, I am, frankly, surprised that anyone reviewed it and approved a form this idiotic.

In one place, the form asks for beginning and ending dates for any term or probation or incarceration a person had as a result of a DUI conviction. A few sections down, it asks. "Have you ever abstained from alcohol or controlled substances while incarcerated, on probation or on parole?" We all know plenty of people drink while on probation, but I'm not aware of any Jail that serves alcohol. Are you kidding me? Who is the genius responsible for that question?

In another place, it asks about the date a person last used alcohol. It goes on to ask for the "Name of alcohol consumed." This might seem to mean "what kind" of alcohol, but only a few sections earlier, as it asks about a person's former drinking habits, it specifically requests the "kind" of alcohol a person used to drink, and how often. Already, I'm seeing people describe the night of their last drink as having been a combination of beers and shots and/or mixed drinks. For many people with a few years of sobriety to their credit, thinking back to their last drink doesn't produce a crystal clear memory of what they last consumed. "Kind" of alcohol is one thing, but how many people name their drinks? "This one is 'Charles,' and that one is 'Kathy.'"

These are just a few examples amongst many. Instead of providing clarity to the process of license restoration, a person filing an appeal is asked about things already covered by the substance abuse evaluation, as if the state is just waiting for someone to say something that doesn't exactly match up so they can deny the appeal. Remember, the whole point of a driver's license restoration is to prove, by what the state calls "clear and convincing evidence," that your alcohol problem "is under control and likely to remain under control." This means that you have to prove you haven't had a drink for the statutorily required minimum time (that can range; in my Office, I require at least 12 months of sobriety), and, more importantly, that you have the tools necessary to back up a commitment to never drink again. Winning a license appeal means proving that you're sober, and also proving that you're a safe bet to remain sober for life, meaning that you'll never drink again.

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April 19, 2013

Guaranteed win in your Michigan Driver's License Restoration case

I guarantee that I will win any Michigan Driver's License Restoration or Clearance case that I take. As I describe it, "it's that simple." Despite the clarity of my guarantee, and the fact that, rather unlike the stereotype of a typical Lawyer, I do not have some long list of exceptions or a bunch of fine print limiting how it works, my office still gets call from people who essentially ask, "what's the catch?"

There is none; it's that simple. In fact, the only limitation I place upon my guarantee is if someone lies to me, or holds back essential information. And to be very clear on that point, I spend 3 hours with a new Client at our first face-to-face meeting, not only going over every line of the state's Substance Abuse Evaluation form, but also completing my own Substance Abuse Evaluation Checklist form, as well. Essentially, this precludes anything from being "forgotten," or "not clear."

Guaranteed 1.2.gifA few months ago, I had a case that, to be polite about it, involved a "fib", and it served as the inspiration for the article immediately before this one. I represented a guy in a License Appeal who first told me, and then the Evaluator that completed his Substance Abuse Evaluation, that he had gone to AA for about 8 of the last 9 years 3 to 4 times a week, and then reduced his attendance to 1 or 2 times a week for the last year. He was adamant about that, and even brought a letter from his AA "sponsor."

When we "prepped" for his Hearing, I was clear about how his AA attendance would play a role in his case. Then, when we got to the Hearing, the particular Hearing Officer that was deciding his case asked him about a few of the AA steps. Not only couldn't the guy repeat one word of any of the steps the Hearing Officer asked about, but when the Hearing Officer asked if he could repeat any part of any of the steps, he choked. Later, he admitted that he had really overstated his involvement with AA (that was not a surprise). He was, however, really and truly sober, and while that's far from enough to win, I'm certain the Hearing Officer knew that, whatever else, at least my Client was not still drinking. This would have been the classic case where I could have explained that my guarantee doesn't really apply, but that's not how I do things. I'm sticking with my Client, and will handle the next License Hearing without additional charge. I know my Client is really sober, but I'll just have to make darn sure that he is far more accurate in describing his involvement with AA next time.

The larger point here is that, absent something really profound, when I take your case and put my name on your paperwork, it becomes personal. I accept my Fee with the explicit understanding that in exchange for you paying it, I'll get you back on the road. This is not the kind of agreement that needs to be riddled with disclaimers and exceptions and all that bologna. That's half the problem with our world, anyway. When someone looks you in the eye and tells you something, you should be able to count on that. If you buy a new car, it comes with a warranty. The modern idea is that if you plunk the money down to buy or lease a new car, you shouldn't have to worry about it working or not; if there's a problem, it's covered. I work the same way. If I take your case, you'll only pay me once, and you're getting back on the road, period.

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April 15, 2013

Michigan Driver's License Restoration - Don't lie about AA.

I have pointed out in numerous articles on this blog and on my website that you don't need to be in AA to win a Michigan Driver's License Appeal. I guarantee I'll win every case I take, and the reality is that less than half of my Clients are active in AA. That translates to mean that more than half of my Clients, all of whom are guaranteed a win, are not involved in AA. Yet there exists a lingering notion that you have to be in AA to win your license back, or that it's "better" if you are. While active involvement in AA is never a bad thing, and can usually be made to work to your advantage, in the context of a Driver's License Restoration case, such involvement is absolutely not necessary.

This means that not being in AA doesn't present any problem in winning a License Restoration or Clearance case. Problems do arise, however, when people don't believe this and claim to be involved in AA when they're not, or otherwise exaggerate the extent of their involvement in and knowledge of the AA program. You can't fake this stuff.

pinocchio 1.3.jpgAt a Driver's License Restoration Hearing, you will likely be asked about your AA involvement. If you don't go, or haven't gone for quite a while, then you won't be pressed on the subject any further, except that some Hearing Officers may ask why. This isn't a bad thing, but as anyone who has ever gone to AA knows, the AA program teaches that once you begin attending meetings, you should always keep attending. While I entirely disagree with this sentiment, some of the program's more vocal advocates will call someone who no longer attends meetings, but is also no longer drinking, a "dry drunk." That's not only wrong, it's counter-productive. Fortunately, most people active in AA know that what works for one person may not work for another, and don't hold such a misguided view.

If you never went to AA, then you'll have to explain to the Hearing Officer what you learned about your relationship to alcohol and how you internalized that. You'll have to describe the tools you've developed to avoid triggers and relapse and what changes you've made in your life to insure that happens. While this might sound like a tall order, it is precisely the stuff that I help with to insure you win. Remember, I guarantee you'll win, so I'll do whatever is necessary to make sure you're fully prepared for your Hearing.

If you did attend AA in the past, but no longer attend now, then the Hearing Officer is going to want to know why you stopped. This is not an accusatory question. Instead, the Hearing Officer will be looking to see if you simply got what you needed from your time in the program, or had some "issue" with it (many people complain about the "religious" aspect of AA) or simply found something better. Plenty of people find that, by the time they ever get to AA, they've just "moved on" and have established a busy, sober lifestyle.

One of the worst things a person can do, however, is to think that they've spent enough time around AA to make it seem like they are active in the program, or that they learned things that they cannot articulate very well. This may work for someone who has a few years of attendance to their credit, and only recently quit going, but not for someone who only went for a short time and hasn't been back for a long while.

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April 12, 2013

Predicting the Outcome of your Detroit-area DUI case

Almost every week, I get an email or two from someone who wants to know what's likely to happen in his or her Michigan DUI case. As a Detroit DUI attorney, I know how things work in all of the local Courts I go to, based upon over 20 years of experience. I don't handle drunk driving charges outside of Macomb, Oakland or Wayne County, and by limiting my practice in that way, I have increased my relevant experience almost exponentially.

Sometimes, I see a long email waiting to be read. As things work out in the real world, it more often than not it is the case that the more someone writes, the less interested they are in retaining my services. Like so many of my blog articles, this one was inspired by a recent experience. The day before this article was written, I found a long, descriptive email asking my thoughts on how the writer's DUI case would work out. The writer had hired a Lawyer at the recommendation of a friend, only to find out that the Lawyer wasn't very familiar with how things are done in the suburban Detroit Court where his case is pending.

making-predictions.jpgWithout fail, people will take the time to point out to me those things they think are important, or, they'll repeat what they've heard from their Lawyer, and now believe to be important. I don't know this guy's Lawyer from Santa Claus, so what he and I think is important could be miles apart. As I read on, I immediately formed some questions. What about this? What about that? I needed more information to even begin to form any kind of picture, and that's with all the detail this writer had already supplied.

Let's rewind for a second: This writer already has a Lawyer. At the end of my very long day, when I'm looking at maybe two hours of time for myself, how important is giving a second opinion to someone who is not, and certainly not going to be, my Client? Beyond that, before I could form any solid opinion, I'd need to see the evidence. I'd need to read the Police Report, and, if the other Lawyer was smart enough to obtain a copy of the Police in-car video, assuming it was relevant, watch that, as well.

I had to tell the guy that of course I can give a very accurate assessment of what's likely to happen, but I'd have to review all of the evidence to do that, and that would mean he'd have to be my Client. I didn't go on to tell him that I really have no interest in taking over a DUI case that's moved very far along because, in all truth, unless the previous Lawyer just happens to be a "DUI Lawyer," like me, chances are it wasn't handled in the same way I'd have handled it, anyway. To begin with the guy had taken on a case in a Court he wasn't familiar with, and that was a huge mistake, already causing problems. That's my rather lame attempt to nicely say that, more likely than not, his current Lawyer has already done other things I would consider mistakes, as well. DUI cases are hard enough, but to take one that's been botched up is a huge headache.

At least this guy had a Lawyer. Another source of frustration (or, more accurately, "time waster") are those long emails with all the details the writer thinks are important that begin with "My boyfriend..." or otherwise end with some mention of money "being tight." As I noted, I can't really offer any kind of fair "prediction" about anyone's case without all the facts, and to get a hold of all the facts, I have to be the Lawyer. Even so, I'd never email a Doctor with a long description of how something hurts, and when, and what makes it worse, and then ask for medical advice. That doesn't stop some people, though...

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April 8, 2013

How to Measure "Success" in a Detroit DUI Case

Sometimes, I like to pull the curtain back a bit on the whole Law business and give the reader a peak at some of the things that really go on behind the scenes. Depending on how you read this, I'm either giving an inside look at how Lawyers work, or I'm just putting my own spin on things to make myself look good. This article, focusing on Detroit-area DUI cases, might turn out to be a little of both...

It's no secret that the internet has "taken over" many aspects of our day-to-day lives. Newspapers are dropping like flies while online reading has soared. Video stores are disappearing faster than friends of Kwame Kilpatrick as streaming video displaces DVD rentals. The legal profession is migrating to the net as part of this rather seismic shift. Five years ago, websites for Lawyers were an afterthought. While not amongst the very first, I was certainly an early adopter. Now, everyone has a website, and a whole cottage industry to push those sites onto your browser has grown beyond belief.

Measurer 1.2.jpgThis can be a very deep topic, but the bottom line is that, as a Lawyer, you want a highly ranked site that gets Clients. To accomplish this goal, one must navigate the "rules" established by the search engines, with Google being the biggest player of them all. Thus, when designing or redesigning or optimizing a website, the real goal is to come up high on relevant Google searches. Google refines its rules from time to time, and when it does, every one follows suit. Where it used to be that having a basic but simple "Lawyer website" made you stand out from the crowd, now that everyone has a site, having good content is more important than ever. While that should always be the case, and given that about 60% of all internet searches are conducted through Google, this means that as a Lawyer, you want to make sure your site is "liked" by Google. Now that Google is screening for good, relevant and plentiful content, there are specialized companies offering services for Lawyers to have such content professionally written. Just Google "legal content writing" and see for yourself.

That kind of scares me.

I write all of my own content on both this blog and my website. That's not a boast, because I'm sure there are plenty of better writers than me out there, but the more important point is that I write for my particular Clientele. I know every word of my site and blog, because I've written every word of it. I certainly cannot compete with the "experts" who know how to lace such content with specialized "keywords" that make a site more highly ranked by Google, but I don't' think any one of them can compete with me when it comes to talking in real terms about DUI charges, and how they play out. There's no guy in LA who can write about the Court in Rochester Hills, or Troy, or Shelby Township, or New Baltimore or Detroit, first because as much as he might be a legal writer, he's not a Lawyer, and second, because he's not from Michigan, anyway.

One of the biggest things internet marketing specialists push to Lawyers is to load up your site with testimonials, or success stories. I have some real, honest to goodness testimonials on my site culled from the emails of grateful Clients, but I feel funny about asking people to write them. I have a few more "in the bank," so to speak, ready to use when the current batch gets old, but I'll only take them if they are spontaneous. When I see a boatload of testimonials on any site, I cannot believe that they're all spontaneous, or so well written, either.

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April 5, 2013

Detroit Criminal Lawyer Defined and Redefined

Recently, a number of social introductions have had me explaining what kind of Lawyer I am, meaning the kind of work that I do. No one asks a polite question like that and hopes for a long, boring answer. Accordingly, I have been forced to generally define myself as a "Criminal Attorney" and then quickly point out the things I don't do, in order to quickly "explain" myself. I do not, for example, handle rape or murder cases. I have a rather specialized Practice. I only handle Criminal and DUI cases in the Detroit-area, meaning Wayne, Oakland and Macomb Counties. Moreover, I stick to DUI's and cases like drug possession, suspended and revoked license charges, embezzlement and indecent exposure charges, as well as probation violations. This means I have decades of experience handling the same kinds of cases in the same group of local Courts, working with the same Prosecutors and appearing in front of the same Judges.

This allows me to charge my Fees in exchange for providing services based upon twenty-plus years of related, meaning relevant, experience. When you think about it, anything less and you're just paying your Lawyer's tuition. I've been fortunate to cultivate a practice that keeps me busy enough to be able to only have to work within my comfort zone, and years ago I marked that off as the kinds of cases I have handled regularly and that I like doing. I like handling embezzlement and indecent exposure cases; I don't feel the same way about domestic violence cases.

Lawyer Shadow 1.3.jpgDoes this mean that I don't handle "other" kinds of criminal cases? Of course not! Not too long ago, for example, I was called upon to represent a college-bound high school senior who, along with a few fellow teammates from his school, found himself running by some local railroad tracks. Well, "boys will be boys," as the saying goes. Taking a break from their running, these young guys got the idea that if a train cuts a penny in half rather cleanly, it could probably cut a few other things in half, as well. Looking around, they found a few things that seemed, at least at the moment, way more interesting than a penny, like a discarded car tire and some other debris near the tracks. Clearly thinking more like the kids they were rather than the adults they'd eventually become, they lined up some "stuff" on the tracks to see what would happen when the train ran it over. When they heard a train approaching, they hid nearby.

As he approached, the train conductor was afraid the train could be derailed as it ran over all the debris the boys had placed on the tracks. Unfortunately, by the time he saw it, there was no way to avoid running over it. He radioed ahead for the Police, who showed up, rounded up the boys, and charged them with Felonies, including attempting to derail a train. As serious as the consequences might have been, none of these boys, including my Client, ever thought about doing such a thing (which, of course, was part of the problem).

I was contacted by the family and hired to represent their son. I managed to keep the whole thing completely off of his Record, and about 9 months after the case began, it was closed out and my all-the-wiser Client headed off to college, conviction-free and no longer on Probation.

The "attempted derailment" charge in that case was a first for the Judge, who has been on the bench a long time, and first for the Prosecutor, who has been at his job for over 20 years, as well a first for me. Even so, this case fell precisely within my range of experience, even though the exact charge is rarely ever brought. My point is that while it did not fall precisely within the description of the kinds of cases I regularly handle, it was something squarely within the scope of my broader experience and well within my "comfort zone."

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April 1, 2013

Winning a Michigan License Appeal Requires "Getting it."

In order to win a Michigan License Appeal after multiple DUI's, you have to "get it." I've written countless articles about how and why Sobriety is a first, and necessary requirement to win a Michigan License Appeal. I've made it clear that, in order to win your case, you must have really quit drinking, first. Despite all this information on my site, and the numerous articles saying much the same thing on my blog, I still get calls every day from people who admit to still drinking. Of course, once we ask about that, every one of them tries to qualify it by noting that they only drink "once in a while," or "occasionally." This misses the point that the whole first requirement of a License Appeal, or at least one that has any chance of actually winning, is that a person has stopped drinking for good.

"Getting it," means coming to the realization that you can no longer drink. It means having been beaten up by your drinking so badly that you can truly say you've had enough. In fact, if there's one thing that really separates those who get it from those who don't, it's that those who really "get it" have hit bottom.

gotItGuy 1.2.pngTo put his in perspective, the rules of the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) require that, in order to win a License Appeal case, a person must prove, by what it calls "clear and convincing evidence," that his or her alcohol problem "is under control and likely to remain under control." That means a person must essentially convince the Hearing Officer that they are a safe bet to never drink again. There is no middle ground or qualifier here: Either you've quit drinking, or not.

The truth is that any person who still hangs on to the belief that he or she can have the occasional glass of wine has not yet hit bottom. That belief conflicts with reality, as well. I "occasionally" light fireworks, usually on the Fourth of July and on New Years. I "occasionally" eat at McDonalds, maxing out at about 3 or 4 times a year. Those struggling with the belief that they can somehow find a way to control or manage their drinking will inevitably define "occasionally" with a much greater degree of frequency than everyone else.

However you cut it, "occasional" is a lot less frequent than "weekly." The larger point is that once a person's drinking reaches the point of becoming a problem (and the State presumes that's the case once a person racks up 2 DUI's within 7 years), the only accepted way of getting over it is to completely eliminate alcohol from the picture. Forever. Sober people understand this.

There is an identifiable starting point from which everyone gets sober. AA people sometimes describe it as "being sick and tired of being sick and tired." Substance Abuse Counselors characterize it as "hitting bottom." You can also think of it as a kind of "final humiliation," because in every case where a person throws down the gauntlet and declares that, "enough is enough," they have already felt humiliated, even if just privately, by the consequences of their drinking. I've heard people say that they realized their drinking had become problem when they kept on (in some cases "couldn't stop") drinking even though they recognized that it was causing them to live well beneath their own potential. For such people, drinking wasn't fun anymore...

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March 29, 2013

Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 3

In Part 1 of this series, we began our examination of the problems within a Substance Abuse Evaluation that will cause a License Appeal to fail. We looked at how even simple, little things like a name and address must be done correctly. After all, if these small details aren't correct, what does that say about the really important stuff? We then went on to review how important it is to accurately list all of your DUI's, your BAC results (if you can), any other convictions you have, and your treatment and support group (AA) history. I also noted that most of my Clients DO NOT currently attend AA.

In Part 2, we focused on the important role of the alcohol assessment test, and how the result of that test helps "suggest" a diagnosis. We also saw that a very common problem is the DAAD's over-reliance on that test result in determining a proper diagnosis. From there, we looked at how issues with a urine screen can create the appearance of problems that aren't really there, and how a person's prior periods of abstinence can similarly give rise to the appearance of being a chronic "quitter" who just can't stay "quit."

no_problem-LRG 1.2.jpgIn this final installment, we'll tackle the most important section of the Substance Abuse Evaluation, the prognosis. It only makes sense that the Evaluator's educated prediction about a person's ability to remain Sober is "the big cheese" of the whole Evaluation process. We will also see how the final section of the Evaluation, the Continuum of Care Recommendation, can upset the whole apple cart. While I'll go on to introduce this section as "last, but not least," it is precisely because this section is often given the least amount of consideration by an Evaluator that it can tank an otherwise good Evaluation.

Everything we've covered thus far in both Parts 1 and 2 of this article eventually and inevitably leads to the ultimate goal of the Substance Abuse Evaluation - the Prognosis. At its simplest, this is the considered and professional opinion of the Evaluator about whether the person's alcohol problem is "likely to remain under control." This is really the answer to the $64,000 question, so to speak. If there is any "it all comes down to this" aspect of the License Appeal process, this is it.

Here again, what sounds easy at first gets rather complicated. Over the years, a number of Clinics and Evaluators made a quick, albeit short-lived fortune writing up glowing Evaluations that gave only the best prognoses for anyone willing to pay their Fee. The DAAD caught onto this with lightening speed. Those operations have come and gone like yesterday's news.

Even with those concerns part of ancient history, there are plenty of other "prognosis" issues that arise with enough regularity to be considered relatively common. By Law, a prognosis must at least be "good." That means that with a prognosis of "poor," "guarded" or "fair," a License Restoration Appeal MUST be denied. To put it another way, you cannot win a License Appeal with anything less than a "good" prognosis. Many of those who ultimately hire me have already tried a License Appeal before and lost. Part of what I need them to bring in, when we meet, is the paperwork from any prior Appeal(s). It's not that I want to show off (okay, maybe I do a little bit...), but often enough, I'll pick up their prior Evaluation first. Within a few seconds of beginning to read it, and without ever having looked at their Denial order, I can tell them why they lost. When I see an Evaluation, for example, with the "fair" box checked in the prognosis section, I can tell the person that such a prognosis figured prominently in the reason for their prior denial. This is always met with an agreeing shake of the head, and then a question about why their previous Evaluator or Lawyer didn't know this.

Continue reading "Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 3" »

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March 25, 2013

Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 2

In Part 1 of this article, we began our examination of the things that can go wrong with the Substance Abuse Evaluation form that must be filed to begin a License Appeal, and how some of these errors can cause the Appeal to be denied without the DAAD ever having to consider the more important issues of whether the person's alcohol problem is "under control," meaning the person has stopped drinking, "and likely to remain under control," meaning the person is committed to and has the necessary tools to permanently remain alcohol-free.

We covered the proper listing of a person's biographical data, as well as their alcohol education, counseling and support group history. Here, in this second installment, we'll begin by examining the next part of the Evaluation form. This is called the "Testing Instrument," and refers to the written alcohol screening test a person takes as part of the Evaluation. This test is used to help come up with a diagnosis of a person's drinking problem. We're going to see how, in the Clinical world, this test is only part of the diagnostic process, and how the DAAD often places far too much emphasis upon this test, sometimes to the point of using the test result as the sole criteria for reaching a diagnosis, thereby undermining the role of the Evaluator and reaching an Clinically deficient conclusion.

NOPROB 1.2.jpgOne of the biggest problems that can cause an Appeal to tank involves the administration and interpretation of the written alcohol-screening test (the "testing instrument") used by the Evaluator. This is really a tricky subject. Only people with proper training and credentials should administer and interpret one of these tests. Some tests, however, are of the "over the counter" variety, and can be "scored" by anyone with a scoring key. This happens all the time when a person takes such a test as part of their Probation screening in a DUI case, before the Sentencing. Almost without exception, Probation Officers have no formal Clinical training or certification or advanced degree that allows them to do anything more than take a garden variety test you can get anywhere on the internet, thrust it in front of someone, and then add up his or her score and compare it to the provided scoring key. On these tests, a person's "score" suggests a diagnosis regarding their alcohol use. Such a "suggestion" related to a score on a written test is hardly any kind of proper Clinical "diagnosis," but the Court system, and, by extension, the DAAD overlooks this.

To digress for a moment, this is a subject that is very important to me. Beyond just being "interested" in it, I am enrolled and involved in post-graduate addiction studies at the University level. Imagine how I felt when, as part of my Clinical matriculation, it was presented, as a matter of fact, that the Judicial system in the U.S. is between 10 to 20 years behind understanding, much less using current Clinical protocols. I was embarrassed for my profession, although relieved to find out that everyone was just behind the curve, and not simply stupid...

This has meaning for the DAAD. It means that the best Clinical understanding most Hearing Officers have, particularly as non-Clinicians, is not only frighteningly incomplete, but anywhere from a decade or two out of date, at that. Yet these same people will examine a Substance Abuse Evaluation completed by a credentialed, licensed Clinician and essentially second-guess it. This means that in a world where streaming hi-def video is already making Blu-Ray obsolete, the DAAD is just learning how to work a VHS videotape machine. And while that sounds funny, it's anything but that when YOUR License Appeal is on the line.

Continue reading "Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 2" »

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March 22, 2013

Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 1

Michigan Driver's License Restoration Appeals are complex. They involve what I call a "million little rules." Miss one of these simple requirements, and your case will be rejected right out of hand. The frustration here is that many License Appeals lose without any consideration being given to whether the person has really quit drinking, and has the commitment and tools to remain alcohol-free. That determination is really at the heart of a License Appeal. Within the various sections of my website and blog, I have made detailed examinations of those two critical issues from every conceivable angle. In this article, I want to take a step back from the "meat and potatoes" of a License Appeal and look at some of the other, more technical (one might say "clerical") requirements, that, if not met, will still completely derail a License Restoration case. We'll limit our focus in these three installments to the Substance Abuse Evaluation that must be filed with the State to being a License Appeal.

The Secretary of State's Driver Assessment and Appeal Division (DAAD) operates under a very strict set of rules. I have written a whole numerous articles detailing how those rules work. One aspect that helps to explain why so many people who try a License Appeal on their own, or use some Lawyer who claims to "do" License Restorations and then loses, is the opening sentence of the ultra-important Rule 13:

"The hearing officer shall NOT order that a license be issued, unless the petitioner proves, by clear and convincing evidence, all of the following...(emphasis added)."
No Problem Alf 1.2.pngThis is a negative mandate. Specifically, it means that the Hearing Officers are instructed more to look for a reason to deny an Appeal, rather than a reason or reasons to grant it. The Hearing Officers are expected to review the paperwork in any case with a critical eye, and, make no mistake, they do just that.

A License Appeal begins by filing certain paperwork with the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). Required amongst those documents is a Substance Abuse Evaluation(please note that a new form will be required by the DAAD as of April 1, 2013). This is usually the first thing read by a Hearing Officer, and is really the foundation of any License Appeal. Of course, the first thing the Evaluation must properly list is the name, address, date of birth and Driver's License number of the person who submits it. All it takes in the busy world in which we live is for an Evaluator to be working on his or her computer, and then turn away for a moment, perhaps to take a phone call, and then overlook verifying a person's Driver's License number or correct address.

A real life example of the mess this can create occurs if a person, who now lives out of state, comes in for an Evaluation, bringing a driving record that lists their former Michigan address. One moment's distraction can result in the evaluator using the address on the driving record (this is usually the right address, for most people, after all) to identify the person being evaluated. This, in turn, can create a problem at the Hearing, when the now out-of-state person requests a Clearance of the Michigan hold on his or her driving record rather than the Restoration of a Michigan License, and the Hearing Officer points out that the Evaluation provides a Michigan address, and questions the person's true residency. While this doesn't sound like a big deal, the inevitable next question from the Hearing Officer is something like "what else isn't accurate or true in this Evaluation? Didn't you read it?"

Another common but simple mistake that will cause an Appeal to be denied right out of the gate is not listing all of one's DUI convictions. Sometimes, really old convictions don't show up on the driving record a person gets from the Secretary of State. Other times, out-of-state convictions don't show up, or at least not at first. In fact, sometimes, convictions show up years later. The workaround here is really simple: Tell the truth. List every DUI conviction you have. In cases where those convictions are really old, and/or out of state, disclose them with as much, or as little, specificity as you can. This is where I help. I have my own "Substance Abuse Evaluation Checklist" that I complete as I meet with my Client for about 3 hours BEFORE he or she ever has an Evaluation completed. I do this to make sure there are no problems with the Evaluation, and that nothing is left out or not properly explained or presented to the Evaluator. My Client gives this Checklist to the Evaluator. This way, I have no worries. I can rest assured that I've clarified, disclosed or explained everything.

Continue reading "Driver's License Appeals - Problems with the Substance Abuse Evaluation - Part 1" »

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March 18, 2013

The Role of the Hearing Officer in a Michigan License Appeal

It has been a while since I wrote about the various DAAD (Driver Assessment and Appeal Division) Hearing Officers who decide Driver's License Restoration Appeals for the Michigan Secretary of State. Within the context of any given Michigan License Appeal, the Hearing Officer is really the most important person in the world, at least while your file is on his or her desk. This article will examine, in general terms, the role of the Hearing Officer and some of the more important differences and similarities amongst them.

In a previous, 2-part article, I took a sort of "anonymous" look at the 5 Hearing Officers at the Livonia branch of the DAAD, where I have all of my License Appeals heard. The same 5 Hearing Officers are still there, and nothing has changed in the time since I published those installments, so there is really nothing to update about them. Yet the whole concept of the role of the Hearing Officer is so critical to how I prepare my cases (and very relevant to why I provide a win Guarantee) that it needs to be reviewed from time to time.

Mystery Man 1.3.jpgIt's easy to get caught up in the fixed, almost mechanical requirements of a Michigan Driver's License Appeal. The process starts with a Substance Abuse Evaluation. I start by spending 3 hours with a new Client just to prepare them to undergo that Evaluation. Letters of Support need to be written, and I spend a lot of time "correcting" and editing them. When all of this paperwork has been completed and reviewed and made "just right," it's filed with the State and a Hearing date is eventually given. Part of the notification of the Hearing date is the assignment of the case to a particular Hearing Officer. The Hearing Officer is the opposite of fixed, or mechanical. Different Hearing Officers have different backgrounds, concerns, life experiences and perspectives that influence how they evaluate the evidence in and ultimately decide a License Appeal. The Hearing Officer is, in that sense, a fluid variable in a License Appeal.

To complicate that even more, you don't know who this "fluid variable" in your License Appeal case will be until AFTER it's filed. My job would be much easier if I knew, in advance, to which Hearing Officer any particular case would be assigned. Precisely because the assignment of cases is random (and that really is the only way to make it fair), I have to consider the idiosyncrasies of all of the 5 Hearing Officers before whom I have my cases heard as I prepare each one.

This means, for example, that if a person has used any potentially addictive or mind or mood altering medication after the date of their last drink, I have to prepare the case as if it might go in front of the one Hearing Officer most concerned about that issue (identified as "The Doctor" in the previous 2-part installment about Hearing Officers) and before whom every "I" must be dotted and every "t" crossed. Not doing so could be a fatal mistake, even though there is an 80% chance the case may be assigned to one of the other 4 Hearing Officers. This means I have to get the proper Doctor's letter before the case is ever filed, and make sure the Evaluator receives a copy so that she can include its analysis in her Evaluation.

Accordingly, considerations about the Hearing Officer are relevant even before the case is ever assigned to one. This is why I have all of my cases scheduled in Livonia, because at least I only have to keep a handle on 5, albeit 5 very distinct personalities. Fortunately, regular and repeat experience in hundreds upon hundreds of cases before them has exposed me to the gamut of how they see things. Even so, as each case I handle has its own story, or theme, I have to review it in light of the way each of the 5 different Hearing Officers will consider it. This means I have to make allowances for and prepare for certain things that there is only a 1 out of 5 chance that we'll actually have to deal with. To put it another way, I have to take into account things that there is an 80% chance will never come up. But doing things properly means doing just that...

Continue reading "The Role of the Hearing Officer in a Michigan License Appeal" »

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March 15, 2013

Medical Marijuana means Losing your License Appeal

A number of recent inquiries have thrust the whole issue of a medical marijuana card squarely within the context of a Driver's License Restoration Appeal. On top of that, a few of the Hearing Officers before whom I appear have recently been asking if a person has a medical marijuana card, or has ever applied for one. Medical marijuana laws do conflict with other laws, and the resolution of such conflicts is still unsettled in many of those situations. However, unless and until there is ever some hard and fast ruling to the contrary from one of Michigan's Appellate Courts regarding License Appeals and medical marijuana, don't expect to see the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) approving any License Appeals for someone with a medical marijuana card.

For the most part, the underlying reasons for this should be rather obvious. In an earlier article about Sobriety, I pointed out that people who are truly sober understand the meaning of "Sobriety," whereas people who don't really understand the meaning of "Sobriety" will mistakenly equate it with simply not being drunk, or not drinking to extremes. "Sobriety," in the sense we're discussing here, is more a state, or state of mind, than just the absence of intoxication. In this way, "Sobriety" implies that a person previously had a problem with alcohol has decided to give it up for good.

MedPot 1.2.jpgBecause the language we're using here is precise, we must differentiate the general concept of "abstinence" from the more specific meaning of "Sobriety." Abstinence means to abstain. If we're talking about someone who has had a struggle with alcohol or drugs, abstinence simply means, "not using." Thus, a person can be put in Jail, meaning they've been forcibly separated from the ability to drink alcohol for a given period of time. Even if they desperately want a drink, and count the days until they're let out and can drink again, that period of time during which they were in Jail and could not drink is a period of abstinence.

Such a period without alcohol is NOT, however, a period of Sobriety. This distinction is a good litmus test for the reader's understanding of "Sobriety." If you understand the above example, even if more by instinct than anything else, then you have a concept of the real meaning of Sobriety. In that sense, Sobriety requires abstinence, but abstinence does not require Sobriety. In order to be a real candidate to win a Driver's License Restoration Appeal, this should all make perfect sense. If it does not, then we've got some work to do...

Part and parcel of the process of becoming sober means acquiring a basic understanding of certain notions about alcohol (or drug) use. When a person's use of alcohol or drugs becomes so problematic that they have to separate themselves from such use, they learn that they must give up using all potentially addictive and mind or mood altering substances. It is a given that if the alcoholic is separated from his booze, but has access to something like Xanax, he or she will soon enough use it as a substitute. The same thing applies when a person with a drug problem is separated from drugs, but has alcohol available. A person with a drug problem will always be told that he or she must not only abstain from his or her substance of choice, but also not drink alcohol, either. In countless cases, such individuals have replied that there is nothing to worry about, because they never liked alcohol anyway, only to wind up transferring their addiction to alcohol as a substitute, and usually in a relatively short period of time.

The bottom line is that once a person develops a problem with ANY substance, be it either alcohol or drugs, getting better, as in recovering, necessarily involves abstaining from the use of any other potentially addictive or mind or mood altering drugs. You can't "get sober" by giving up getting drunk, only to start getting high instead, nor can you "get clean" by giving up getting high, only to start getting drunk, instead. This is pretty basic recovery stuff. Anyone who has spent any time in any kind of outpatient treatment program or around the tables of AA should know this. And that means that if a person knows this, they know that marijuana (or any potentially addictive or mind or mood altering drug) should be avoided at all costs, unless absolutely medically necessary and without suitable alternative. Thus, a person undergoing a brutal cycle of chemotherapy may have a much better "medically necessary" or "without suitable alternative" argument for using marijuana than someone who claims chronic back pain.

Continue reading "Medical Marijuana means Losing your License Appeal" »

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March 11, 2013

Getting your Driver's License back in Michigan after Multiple DUI's

Being a Michigan Driver's License Restoration Lawyer generally means that I Restore the Driver's License for someone who has had it Revoked for multiple DUI convictions. In many cases, the person has moved out of Michigan and cannot obtain (or renew) an out-of-state License. Whether the person lives in Michigan or not, I can help if the person cannot get a License because of 2 or more Drunk Driving convictions. Of course, it is also necessary that the person has quit drinking, as well. Sobriety is not optional.

The formal description of this kind of legal work is called "License Restoration." Technically, I Restore a Driver's License that has been Revoked as a consequence of multiple DUI's. This is a fairly narrow and specialized field. Essentially, if you lost your License after 2 or more DUI cases, have quit drinking, and need to get back on the road, I'm they guy.

Deb License.jpgUnfortunately, way too many people see the words "Driver's License" and "Restoration" and think I'm the general "fix-it" guy for any kind of License problem. While there are some situations that I fix above and beyond multiple DUI Revocations, there are 2 situations that I never touch:

1. If your License has been Suspended because you owe money to either the State or a Court, I cannot help. Your License is being held until you pay the money you owe. It's that simple. Some people will email me, asking for advice, or if there is anything I can do. Here is the complete extent of what I can advise: pay the money. If you don't have it, set up a payment plan. If you can't do that for whatever reason, then get the money. If you can't get the money, then you're out of luck. Even if there was something I could do (and there isn't), how would someone with no money pay for it, anyway?

There are countless reasons why a person can wind up owing money to a Court, or to the State. Believe me, I've had the longest emails detailing every conceivable screw up and mistake justifying why a person doesn't owe what they supposedly do. While I know it can seem unfair, I can't help. I only handle Revocations for multiple DUI's, or Suspensions from Drug cases or Breath Test Refusals. If the basis for your not having a License has anything to do with owing money, you'll have to work that out on your own. Thus, if your License has been taken, or is being held because you owe money, the ONLY thing you can do to get it back is pay the money.

2. If your License has been taken away for multiple DUI's, but you have not quit drinking, I cannot help you. I GUARANTEE that I'll win any License Restoration case I take, but a necessary prerequisite to my taking a case is that a person has really quit drinking. This is not a "technical" thing, either; if you still drink, however infrequently you may claim, or you still think that you can have a drink every once in a while, then you haven't truly quit drinking. Winning a License Appeal requires proving Sobriety (this has nothing to do with AA, and most of my Clients don't go to AA), and that means demonstrating that you have made the transition from drinker to non-drinker and intend to remain alcohol-free.

Continue reading "Getting your Driver's License back in Michigan after Multiple DUI's" »

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