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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June 10, 2013

Michigan DUI 1st Offense -The Drinking Problem you don't have - Part 2

In Part 1 of this article, we began examining the risk of being perceived as having a drinking problem you don't in a Michigan DUI charge. In this second part, we'll continue that inquiry with a closer look at how a 1st offense DWI can lead to a general perception that the person arrested must have some kind of problem with alcohol.

As a Detroit DUI lawyer, I am well aware of, and on guard against this all too common by-product of a 1st offense drunk driving arrest. Just being a Michigan DWI attorney isn't enough, however, and that's why I am formally involved in the University, graduate level study of alcohol and addiction issues, including how these problems, develop, how they are clinically diagnosed, and the various methodologies of treatment. This means I can protect you from being seen by the court system as having a drinking problem and defend you from any such lingering suspicion because I can argue like (and even with) a clinician; I speak their language, and I speak the language of the Judge, as well.

wineglass 1.2.jpgIf there's a flaw in the way Michigan courts process DUI cases, it's that too many people in the process "play" clinician, and none of them are. From arresting cop to Judge to probation officer, everyone has an opinion. The problem is that some of those opinions, particularly that of the probation officer or the Judge, matter. This is where my specialized knowledge can help your case.

When you step back and look at this part of the DUI process, what you really have is a probation officer playing substance abuse counselor. The probation officer has to give you what amounts to an "over the counter" alcohol-screening test, and then score that test. That's the whole of the process by which you are found to have or be at risk for a drinking problem. The probation officer is also tasked with interviewing the person, and then taking all that information and putting it together into a legally required written sentencing recommendation that must be sent to the Judge prior to the actual sentencing date. The law also requires that a copy of that recommendation be reviewed by the person being sentenced, with his or her lawyer, before the judge actually imposes the sentence, thereby giving the person the opportunity to object to anything that needs correcting, and to comment as to the probation officer's recommendation.

This is huge. In fact, this is, without a doubt, the most important part of a DUI case. We're talking about what the Judge is going to do to you. When someone looks around for information about a DUI, it's not because they want to know in case something ever happens down the road. People want to know, as in immediately, "what is going to happen to me?" Well, this is it.

In the real world, meaning the world where you're actually going to be standing in front of the Judge, what is going to happen to you is pretty much exactly what is recommended by the probation officer. Every Judge in every court, or at least every Detroit area court, follows the probation officer's recommendation as if it were a blueprint for what to do. There is simply no case where the Judge will disregard his or her probation department's recommendation on a wholesale basis. This is, after all, part of the probation officer's job. From the court's point of view, the probation officer is in the best position to decide what kind of counseling, education, punishment and/or supervision a person should get for a DUI. This is certainly the most practical way to handle things, but it runs roughshod over the clinical reality that the probation officer has no more specific training in determining your substance abuse needs as your hair stylist (no offense to hair stylists).

But I do. I work with the diagnostic criteria for alcohol issues every single day, pretty much all day as part of my driver's license restoration practice. I can analyze and discuss concepts of the etiology, diagnosis and treatment of alcohol problems that most probation officers don't even know exist. This means that I can protect you from being seen as having a drinking problem that you don't have.

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June 8, 2013

Michigan DUI 1st Offense -The Drinking Problem you don't have - Part 1

As a Detroit DUI lawyer, I interact with people facing a Michigan 1st offense drunk driving charge practically every day. Almost automatically, and without prompting, many of these people want to explain that they don't have a drinking problem. It almost goes without saying that being charged with DWI at least raises concerns about a person's drinking habits, especially from the court's point of view. At least someone facing a 1st offense can rightfully point out, in response, that nothing like this has ever happened before. That, however, is far from enough.

In this 2-part article, we'll look at how someone facing a DUI in Michigan, and particularly a DUI in the Detroit area, where I practice, will have to be proactive in refuting the kind of built-in, preconceived notion that they have, or at least are at increased risk to develop a drinking problem because they have been arrested for drunk driving.

Drinking Problem 1.2.jpgIn a Michigan DUI case, there is a process, required by law, to evaluate the person charged to determine whether or not he or she has a problem with alcohol, or if that person is at elevated risk to develop a problem down the road. In theory, one would think this would be good enough. After all, if you don't have a problem, then a competent evaluation will prove that, right? So you'd think...

The problem is that "the system," meaning the court system, has a way of functioning somewhat different in reality than it's supposed to in theory. This should make immediate sense to anyone who is required to test for alcohol (and/or drugs) as a condition of bond after a DUI arrest. What happened to your "presumption of innocence"? How did you go from supposedly being presumed "not guilty" to being ordered to not drink, and then having to prove, at your own expense, that you're not? While this isn't the worst thing in the world that can happen to you, it does provide a pretty accurate example of how very different things actually are from how they're "supposed" to be.

A fine, if almost funny example of this occurs if you call the IRS. Once you get on the phone (and on hold), you'll hear lots of messages explaining that your wait is because all available representatives are on the phone with other "customers." Are they kidding? Maybe in their pamphlets they call taxpayers "customers," but no one I've ever met chooses to do business with them. In the real world, we're "taxpayers" at best, and "victims" at worst, but never, at any point, does anyone call himself or herself a "customer" of the IRS.

In the "real world," DUI cases, as most things, can be examined from those 2 perspectives: How things are supposed to be, meaning how they're explained in books and theories, and how things are really done. In driver's training, we're taught to keep our hands on the steering wheel at the 10 and 2 o'clock positions, to keep 1 car length for every 10 miles and hour we're going between our vehicle and the car in front of us, and to never exceed the speed limit. When is the last time you did 70 miles an hour on the freeway and left 7 car lengths between yourself and the car in front of you? In the real world, you're all but expected to go about 40 miles an hour in a 35 mph zone. You get the idea. With DUI charges, it's the same thing; the way things are handled in the real world is entirely different from how it's made out in books and TV. Let's explore how things really work...

Continue reading "Michigan DUI 1st Offense -The Drinking Problem you don't have - Part 1" »

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June 3, 2013

Michigan Driver's License Restoration - Substance Abuse Evaluation Preparation

It was recently pointed out to me by another lawyer that the way I begin a Michigan driver's license restoration case makes the way most other lawyers do it seem backwards. I begin every license appeal or clearance case with a 3-hour meeting, the primary focus of which is to prepare you to undergo the substance abuse evaluation. Apparently most, if not all, other lawyers meet with you after you've had it completed. While I can't even begin to understand doing things that way, it perhaps explains why I'm the only lawyer (that I know about, anyway) who provides a first-time win guarantee.

This is a very important point. The substance abuse evaluation that must be filed to begin a license restoration case is really the foundation of a license appeal. If you stumble at this stage, you've lost the case before it has even begun. The information contained in the substance abuse evaluation, as well as the "tone" of that information, shapes your whole case. This is about a lot more than just getting a "good" or a "bad evaluation." The evaluation will provide a glimpse, in a kind of longitudinal way, of your recovery. Yet there is really no way an evaluator can summarize your journey to sobriety if you can't describe it first. That's what I'm here for.

3-o-clock 1.2.jpgThus, for 3 hours, we'll go over the substance abuse evaluation form line by line. I have my own "substance abuse evaluation checklist" where I make notes to give the evaluator to make sure no important details are left out. Details are significant, but there's much more to the story than that. In fact, there's the whole story that needs to be told, and that's where I help.

I call this your "recovery story" because, in every sense of the word, how you made the transformation from drinker to non-drinker is a story. Those who have spent time in AA probably feel a lot more comfortable with the "story" part of this, having spoken of their journey to abstinence at the tables. For others, they'll undoubtedly appreciate the help in setting things out and seeing the chronological progression from their early (almost always teenage) drinking days to the end of their drinking career, right up to their embrace of sobriety.

Make no mistake, there is a story here, and when we start peeling back the onion, it's usually dramatic and profound. In more than 20 years, I've never had anyone sit back and describe, without emotion, how they sat back one day and did a balance sheet with continuing to drink on one side, and no longer drinking on the other, and then just decided to stop because it was the logical choice. When someone decides to quit drinking, there has usually been quite a bit of drama leading up to that point.

Here's where I bring a lot more to the table than any other lawyer, including anyone else who describes him or herself as a "license restoration lawyer." I study the whole process of alcohol problems, from their onset to their diagnosis, and right up through treatment. I am actively involved in the formal University, post-graduate studies of these issues. I know the language of the counselors who do these evaluations. I understand nuances in the evaluation process that some people don't even know exist. Because I speak the language of substance abuse counselors as well as the language of lawyers, I can make sure that the evaluation covers the appropriate and necessary clinical bases, and that it is legally clear, and sound, as well.

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May 31, 2013

Life has a way of Getting in the way of life...

This short article is presented to explain why my blog has gone "silent" these last few weeks. Having maintained a publication schedule of 2 articles per week for the last several years, I have been noticeably absent of late, and haven't put anything up on this blog. Normally, on Memorial Day, I write a short piece of gratitude for those who have served our country, but this time, my thoughts have turned more inward. Still, I think it is important that we not forget the sacrifice made by our wonderful service people here and abroad, past and present:

Thank you all and God bless you for your service.

Rose 1.3.jpgSince around the end of February, my attention has been required to care for my ailing father. As an only child, and with my dad having turned 90 in August of 2012, the demands on my time have virtually exploded since about February of this year (2013).

My dad died on May 23, 2013. He was a veteran, having served in the army. He was proud of the service he gave to our country, and I am proud of him. Because of the Memorial holiday, he was laid to rest on May 29, 2013.

While I am sad beyond words, I was at least able to be with him when he passed. I had prayed for that opportunity, and was lucky enough to have had the honor and satisfaction of having held each of my parents when they passed away. No one wants to see their parents die, but when that inevitability approaches, to know that they had the best comfort and companionship you can provide is reassuring.

My day-to-day world involves working on Detroit area DUI cases, winning Michigan license restoration appeals, and successfully handling the rather specialized criminal cases in which I concentrate, including embezzlement, indecent exposure, marijuana and suspended license charges. My practice is rather similar to my family life, in a strange kind of way. While some lawyers will handle a much wider spectrum of cases than me, I have chosen to keep the number of things I do to just a few. In my own family, I have no siblings, and my wife and I have just one child. In my practice, I focus on just a few things so that I can do them with an unparalleled expertise. My family, like my practice is small and intimate.

Losing my dad did not come as a surprise, or a shock, but it still hurts. I've always been very close to my parents, and as they got older, my role shifted to being more the parent than the child. When my mom died in 2008, my dad was already 86 years old. In the last few years, I've been in even closer contact with him, often seeing him daily and calling him on the phone to speak with him multiple times everyday, and handling doctors and medication and what seemed at the time like a million other things.

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May 3, 2013

DUI in Shelby Township (including Utica and Macomb Twp.)

The 41-A District Court in Shelby Township covers 3 municipalities: Shelby Township, Macomb Township, and the city of Utica. If you're arrested for a DUI in any of these places, your case winds up in the Court a Detroit DUI lawyer like me simply calls "Shelby."

Of course, it goes without saying that no one wants to face a drunk driving charge. I have often called any Michigan DUI charge "an accident of geography" because absolutely no one expects to go out and get a DUI in the first place, much less plans on where to get it. Sometimes, you wind up driving to different and distant places to meet up with others, and might, for example, drive all the way from Westland to Novi to Rochester to New Baltimore. You could get pulled over anywhere along the way, and given the (somewhat unlikely) route used in this illustration, you could find yourself in either one of the toughest or the most "forgiving" (as in "lenient") jurisdictions in the Detroit-area, or anything in-between.

Judge Doug 1.2.jpgThe point is that a DUI just happens where it happens. No one plans any part of it, although some would argue that a rather distinct lack of planning is the reason it happens in the first place. We'll let MADD deal with that part of thing; for now, we'll just stick to talking about "Shelby."

If you were going to plan to get a DUI, however, you'd certainly want to wind up in a lenient jurisdiction where the penalties weren't so severe and the Judge was nice. Shelby is that place.

Let's begin with the Judge. Having come to the Bench after working for a long time in private practice, Judge Douglas Shepherd brings a real world understanding to his position. This is hugely important, because it's a lot easier to understand people, if you're sitting on one side of the table, when you've sat on the other side, as well. Judge Shepherd, having been in private practice, knows that people charged with a DUI are often people who have made a one-time mistake, or even made the same mistake a second time. He knows that a DUI charge cuts across all groups, and that DUI defendants are your family, friends, neighbors and co-workers. Whatever else, we can't simply describe those charged with a DUI as "them." This is sometimes what the more judgmental amongst us do; these are also usually the first people to change their tune when it happens to them, or someone close to them. We think of that kind of judgmental person as being on a "high horse."

Not so with Judge Shepherd. He is, first and foremost, a decent and likeable man. You can't miss this. Look, it's no secret that when you encounter someone who is a real jerk (think of another 5-letter word that begins with the letter "a" and rhymes with "eggroll") it's a big turn off. Power is best used by those who use it the least, and that describes Judge Shepherd. I've been a regular in his Court since his election in 2000, and never once have I ever seen him make a case about him. Instead, he directs his attention to the matter before him, where it belongs. Intelligent and compassionate, he runs an efficient Court that pays homage to the first rule of everything: Common sense.

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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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