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.

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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.

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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...

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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.

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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.

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March 8, 2013

Probation in a Detroit-area DUI

In my role as a Metro-Detroit DUI Lawyer, I answer every conceivable kind of question about the DUI process. One question that virtually everyone asks is about Probation. I'm asked everything from what "Probation" means, to what it entails, whether or not I can help my Client avoid it, and if any kind of exception can be made to accommodate some circumstance a person facing a DUI has. This article will be a brief, minimalist summary of what Probation means in a DUI case.

Within the more than 120 DUI articles I have on my Blog, some make a rather detailed examination of the whole Probation process, requiring 2 installments to do so adequately. This article will be the polar opposite of that. If I've had to learn anything the hard way, it's that not everyone is interested in the textbook treatment and microscopic analysis that defines most of my earlier articles.

Probation 1.3.jpgProbation is, first and foremost, an alternative to incarceration. In a DUI case, it is given as an alternative to Jail. To be clear, a person can be put in Jail for a few days and then be let out on Probation, but in most cases, and in this article, we'll be referring to Probation in lieu of Jail. Probation comes in 2 major types: Reporting, and Non-Reporting. You don't even have to know much about Probation to know that Non-Reporting sounds better, and it is; everyone wants Non-Reporting Probation. Probation is usually given in terms of either 12 months (most common), 18 months (more common in Oakland County), or 24 months (usually handed out in 2nd Offense cases).

Non-Reporting Probation simply means that you don't have to show up and report, in-person, to a Probation Officer. Sometimes (although rarely), it can mean that a person has to write-in periodically and either complete a form, or in some other way communicate with their Probation Officer, who is often just called the "P.O."

Here's the real skinny: In a DUI case, Non-Reporting Probation is a possibility in certain Courts in Macomb and Wayne Counties, but will never be given in Oakland County. If you have a DUI in any Court in Oakland County, you are more likely to win the Powerball Lottery AND the Publisher's Clearing House Sweepstakes on the same day than you are to get Non-Reporting Probation.

Reporting Probation is far more common. Reporting Probation requires that you go to the Probation Department (usually in the Court where your case was heard) and meet with a Probation Officer. Most of the time, this is done once a month, although a person can be required to report more or less often than that. Part and parcel of Reporting is that you fill out a form that asks if anything has changed since your last Report. Here, you're supposed in indicate if you've moved, changed jobs, or anything like that. You're also asked if you've had ANY Police contact.

The defining element of Probation is "Conditions." Probation is really a specific period of time during which you must not do certain things, and very often must do others. This is really no different that being hired for a job for a probationary period. The company wants to make sure you do certain things, like meet quotas, and NOT do others, like show up late, or miss time. In a DUI case, the standard conditions require that you pick up no new Criminal Offenses, and that you do not drink or use any kind of drugs. This is often backed up by some kind of breath or urine testing, to insure compliance.

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March 4, 2013

Avoiding the big risk in a Detroit-area DUI case - Part 2

In Part 1 of this article, we began to sketch out how a person facing a 1st Offense DUI charge risks being found to have, or to develop, an alcohol problem. We'll continue that examination is this 2nd part, and we'll look at some specific examples of how my knowledge of alcohol and addiction issues can help minimize the negative legal consequences a 1st Offense DUI Client faces in Court.

The study of alcoholism is a highly specialized field. Understanding the diagnostic testing procedure involves much more than just thrusting a multiple-choice test in front of someone and then reviewing their answers next to the scoring key. The upshot of delegating the responsibility of determining if a person has an alcohol problem, or is at risk to develop one, to a Probation Officer is that a LOT of mistakes are made. I know. I catch them all the time.

Risk 1.2.pngPerhaps the most common mistake made by a Probation Officer screening someone in a 1st Offense DUI case is that, although the person tests out as NOT being at risk for an alcohol problem, and because the Probation Officer, who has zero training in the actual clinical criteria for assessing the existence of such a problem, will use their "gut" and include something like this in the Sentencing Recommendation: "The Defendant's answers to the alcohol screening questionnaire coupled with his high BAC score suggests a potential drinking problem and indicates that Counseling would be beneficial," or "The Defendant's responses on the alcohol evaluation as well as the seriousness of this Offense indicate that Intensive Out-patient Counseling would be helpful in helping the Defendant to gain an insight into his drinking." This kind of generic-speak is absolutely non-specific enough to sound clinical, and almost profound.

But it isn't. The fact is, things like a person's BAC score are NOT part of any diagnostic criteria used to assess whether or not they have an alcohol problem. Nor is the "seriousness" of any particular DUI Offense. In fact, the "diagnostic criteria" (set forth in what is know as the "Diagnostic and Statistical Manual," or "DSM," and published by the American Psychiatric Association) speaks only of "recurrent" legal problems. It does not, as a matter of fact, differentiate a single, low BAC DUI from a single, four-times the legal limit high BAC DUI causing death. In fact, 2 DUI'S register as "recurrent," whereas a single DUI that kills a whole family does not. It's that simple, or at least it should be. This is the kind of stuff I have to deflect every day.

It seems to me, given that this affects exactly what will happen to you, your Lawyer should have expertise in this field. If not, then you have effectively surrendered control over your fate to non-experts "playing" in a field in which they have no credentials. You should not have to let someone without the requisite formal training in Substance Abuse issues decide whether or not you have, or are at risk to develop a drinking problem, and make determinations about what kind of help you do (or don't) need, yet the "system" is set up to do just that. I can help prevent that.

This problem is compounded because the Probation Officer who administers the alcohol-screening test and does the interview thinks he or she is an expert, despite the indisputable FACT that their experience with alcohol issues is limited exclusively to Criminal and DUI cases. This gives them a Criminal, and not a clinical perspective. On the one hand, while Probation Officers really have no business taking anything except a Criminal perspective, the fact that the Courts delegate the responsibility for alcohol screening to them requires them to at least "play" clinician.

Continue reading "Avoiding the big risk in a Detroit-area DUI case - Part 2" »

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March 1, 2013

Avoiding the big risk in a Detroit-area DUI case - Part 1

The real risk in a 1st Offense Drunk Driving case is that a person has (or the Court, at least, concludes a person has) a drinking problem that is finally interfering with normal life functions, like driving. From the point of view of a Judge, and therefore extremely relevant to what I do every day as a Michigan DUI Lawyer, every single 1st Offense DUI is either a one-shot, out-of-character incident for someone, or it's just the first of more to come. When you think about it for a moment, that concern is relevant to every DUI case that has ever been brought. To put it another way, every single person facing a 2nd or 3rd DUI charge had to have had a 1st Offense, as well.

It goes without saying that absolutely everyone ever Arrested for a 1st DUI says, "it won't happen again." Moreover, absolutely everyone who says that means it at the time they say it. Do you really think there's anyone who ever really intended to get Arrested for another DUI? Of course not! Therefore, the measurement of the likelihood that a person will be a repeat Offender, or not, has nothing to do with how much they insist, "It won't happen again."

gamblingwiththedevil 1.2.gifThe most effective (and perhaps only) way to measure the risk that a person will pick up another DUI is to assess their relationship to alcohol. Part of the whole problem with DUI cases is that, by far, most people who face this charge are not "Criminals." My Practice is a good example. I am a higher-end DUI Lawyer; I don't compete with the "lowball" cut-rate Lawyers, and I offer a degree of service they don't even know exists. Accordingly, my Clients are far more "high end" people. I represent Professionals in all fields, and absolutely none of my DUI Clients is a risk to commit something like an armed robbery, an assault, or to steal a car. My Clients may technically be facing a Criminal charge, but they are not Criminals.

We all know, or should know, at least, that one's status as being a law-abiding, taxpaying citizen is not exempt from the reaches of a drinking problem, and the incidence of problematic drinking amongst those people ever Arrested for Drunk Driving is statistically MUCH higher than it is for the population at large. This explains why, depending on the Court system in which your case is pending, you might be required to "test" for alcohol to enforce a "no drinking" condition of your Bond, or release from Jail. Unlike crimes driven by drug addiction, poverty of other types of desperation, Drunk Driving cuts evenly across the most highly-educated and high-income brackets. In fact, you can't be that destitute in the first place to have access to a car....

This means that a sitting Judge has to look past the SES (socio-economic status) of anyone facing a DUI, and really doesn't have to waste much time determining if a person is a "Criminal" or not. Whether the person before them earns their living digging ditches or doing heart-bypass surgery, the first concern of the Court is whether this 1st DUI represents a truly isolated incident, or is just the proverbial "tip of the iceberg." And given society's growing (if not media-fed) preoccupation with Drunk Driving, and the fact that being a Judge who is known as "tough" on Drunk Driving presents NO problem at election time (who'd vote for the candidate that's "easy," or "lenient," or "not as tough as the other guy" on DUI Drivers?), we've produced a recipe that sets anyone facing a DUI charge up for a trip through the meat grinder.

In a perfect world, the determination that a person either does or does not present a risk for a drinking problem would be made by someone with actual credentials to do that, like a bona-fide Substance Abuse Counselor. In the real world, a Probation Officer from the Court makes that determination. The Probation Officer is tasked with administering (and scoring) a legally required written test, called an alcohol assessment. Leaving this to a Probation Officer is not a good idea, and I'll address it in full detail sometime soon in another article. For now, I can at least identify a few valid concerns about having a Probation Officer do a Substance Abuse Counselor's work.

Continue reading "Avoiding the big risk in a Detroit-area DUI case - Part 1" »

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February 25, 2013

The Cerebral Michigan DUI Client

This article has been a long time in the making. One of the delights that I have as a Michigan DUI Lawyer Practicing in the Detroit-area is that most of my Clients find me as a result of doing their homework. I write extensively about how the DUI process moves along, how evidence is collected and evaluated, and how the Court system focuses the person's relationship to alcohol, to the point really, of separating the person from alcohol, at least while they're under the Court's jurisdiction. My Clients are readers. They respond to analysis, and often have thoughtful questions beyond "what's going to happen...?" To put it another way, I try and appeal to those for whom thinking is an asset.

The end result is, rather candidly, that I have a better class of Clients than many of my peers. And while that means things go well when I have a "thinking Client," it also means that my approach does NOT mesh particularly well with those who don't want to do any thinking, or don't often do much thinking, or otherwise just want to hand the keys over to some Lawyer and let him or her take care of everything. That may work if you hire an interior designer, or take your car to the mechanic and just say, "fix it," but in order to produce the best outcome in a DUI case, such a mindset is, at least to me, a pure liability.

einstein 1.2.jpgIf you are to facing a DUI charge and are lucky enough that there is some problem with evidence in the case, or how it was collected, then they "fix it" kind of Lawyer won't be a problem. Most people aren't so lucky, however. Consider this cold, hard fact: In 2011, there were 54,291 alcohol and Drug-Driving charges brought in Michigan. Of those, only 95 were beaten at Trial. Do that math. That's .17 %. That's LESS than two-tenths of one percent. If you're going to hire a DUI Lawyer and that's your plan, well, good luck with that.

If you have enough cerebral horsepower to contemplate another possible result in your case, then you're going to need a Lawyer who can help minimize the consequences. That's a rather broad statement, so we need to put some meaning to "minimize the consequences." Beyond just making things better, minimizing consequences means actually having a positive impact on crucial aspects of the case that will directly affect what happens to you.

In that sense, it means seeing if there is a way to force the Prosecutor's hand to drop the alcohol-related charge to a much less serious, non-alcohol related offense. If not that, then it can mean reducing the original OWI charge to something far more benign. Whatever happens there, it almost always means dealing with an alcohol assessment. This is a part of every DUI case that is required by Law. Prior to being Sentenced in any DUI case, a person has to undergo a mandatory alcohol assessment test. This is handled, in every Macomb, Oakland and Wayne County Court, by the Probation Department. The test itself is a written instrument theoretically designed to fix a person's place on an alcohol use continuum from normal, non-problematic drinker to problem drinker right up to late stage, chronic alcohol dependence. Doing well or poorly here will affect what actually happens to you more than anything else.

The alcohol assessment test is administered by a Probation Officer, who then "scores" it, and comes up with what essentially amounts to a diagnosis by fixing the person's place on that alcohol-use continuum. The problem is that someone can only really make a "proper" diagnosis if they have formal training (usually noted by the CAC, CAAC or similar credentials) in the alcohol and addiction Counseling field. Here's where I can help a lot more than any other Lawyer; I study this stuff. And I don't mean that I have read a few books on the subject, either. I am enrolled in the formal, post-graduate University level study of this subject. This has been a passion of mine for a long time (and before you even roll your eyes, don't you hope your Dentist is interested in things like permanent adhesives, enamel and filling materials?). It relates directly to what I do every day as a DUI Lawyer and a Driver's License Restoration Lawyer, where a person's use of and relationship to alcohol is the focal point of the case.

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February 22, 2013

Being Sober and Getting Your License Back - Michigan License Restoration

To win a Michigan Driver's License Restoration Appeal, you have to be Sober. It's been a while since I've written about this topic, and the number of recent inquiries from those who want to get their License back but haven't yet quit drinking means it's time to address it again. If you've had your License Revoked for multiple DUI's, you cannot get it back until you go through a process called a License Restoration. This is done through the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD), and requires certain legal documentation just to get started.

The most critical of those documents is the Substance Abuse Evaluation, which is a state form that needs to be completed by an accredited Substance Abuse Counselor. The form is completed as part of what really is a larger, clinical evaluation. Although the form is entitled a "Substance Abuse Evaluation," it is really just a summary listing of the more salient points learned during the actual evaluation. And for all of the information required to complete the Evaluation form, the key is that you are Sober, and will remain that way.

My Worst Day in Sobriety 1.2.jpgIn other articles, and on my website, I examine the License Restoration process and the numerous things that one must do to begin a License Appeal. In the interests of brevity, this article will focus on the key issue that is critical even before a person begins thinking "License Appeal." Being legally eligible to file a License Appeal has nothing to do with the most important eligibility requirement: Sobriety.

Of all the things a person must prove to win their License back, nothing comes close to having to prove Sobriety. I am sometimes asked by those trying to handle their own License Appeal, "How do I prove Sobriety?" I don't know how to tell anyone else to do it, but I know how to do it. It's what I do every day, and I do it well enough to Guarantee that I will win any License Appeal I handle. Whatever the recipe for proving Sobriety, you can't even begin to think about proving it unless you've gotten it, first.

The term "Sobriety" can have a few meanings, but within the context of a License Appeal, it has one specific meaning. If you're reading this, and you're really Sober, then you know what it means. If you are in, or have been to AA, and understand that you cannot drink again, then you understand Sobriety. If you think not having consumed alcohol today, or just not being inebriated has anything to do with real Sobriety, then you're lost...

My Office gets calls almost every day from people who have lost their License for multiple Drunk Driving convictions, but say they can still drink, or that they only have an occasional glass of wine with dinner, or that they have a beer or two every now and then. These people consider themselves "sober" because to them, that just means "not drunk."

To be Sober, in the sense that you can even begin thinking seriously about winning a License or Clearance (meaning an out of state case with a Michigan "hold") Appeal, you have to have decided to quit drinking. Permanently. You have to have, as the AA people say, "put the plug in the jug." You have to have made the decision to eliminate alcohol from your life, and live an alcohol-free lifestyle. And if you've done that, then you know every part of your life is immeasurably better now...

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February 18, 2013

What do you want to Happen in your Detroit-Area DUI case?

With more than 22 years of handling DUI cases in Macomb, Oakland and Wayne Counties under my belt, I know pretty much how a DUI case is likely to play out as soon as I've seen all the evidence. When a Client hires me after having been Arrested for a Drunk Driving charge, particularly when there is an accident involved, or they wound up in a ditch, it doesn't take a rocket scientist to figure out the case isn't likely to just go away. Some people will waste piles of money chasing false hopes and betting on legal strategies and tactics that only work out on paper, but never in real life. Unfortunately, there are enough Lawyers hungry for work to feed into those dreams, and they make a lot of money while doing it. But let's not let Lawyers be the only ones dumped on here; there are as many plastic surgeons out there raking in the cash by doing various injections and procedures with the promise of making everyone beautiful.

Let's face facts; if you're grossly overweight and wrinkled and otherwise weren't born with movie star looks, a brow lift and some liposuction isn't going to make you one of People Magazine's "50 Most Beautiful People." Yet hopefuls line up everyday to buy into what they want to see, rather than seeing the truth. Ditto for DUI cases. People will pay endless amounts of money to buy into the hope that their case is somehow going to be magically dismissed when there is about zero chance that it actually will.

 Cuffs 1.4.jpgTo be clear, I get cases "knocked out" all the time. But this can't happen in every case, nor does it happen just because you really want it to. If you're in the ditch, and the Police have to wake you up while you're sleeping behind the wheel, it's probably not a wise decision to spend your hard-earned money trying to beat that kind of case, unless there is an honest problem with the breath or blood test. Naturally, everyone hopes to have their case "knocked out," in the same way that everyone wants to be a millionaire, or wants to be beautiful and famous and special. Just wanting something doesn't make it happen, though.

Looking for a DUI Lawyer is a lot like looking for a job. You have to define what you're really looking for, and what you'll be happy with. In the world of DUI cases, a person is going to have to temper what they want with a healthy dose of reality. You need to do some homework. There isn't one Lawyer out there who is the right Lawyer for everyone. Representing a person involves (or at least should involve) heavy-duty communications and, at least for a time, a close working relationship.

Consider the relationship between a Patient and his or her Heart Surgeon; there is little to no emphasis on communication or a working relationship, precisely because there doesn't need to be. If you're the patient, you're draped on the operating table so the Doctor only sees the area he's working on (ever wonder why they do that? Now you know...) and doesn't get caught up in anything but the mechanical, technical aspect of the task to be accomplished. It does no good to have the Surgeon see that the patient is young or old, male or female; it's a chest cavity that needs to be opened and a heart that needs to be fixed. If your Surgeon is a nice person, all the better. If he is a jerk, but saves your life, it couldn't matter less, really. It's not like you have to have long, deep conversations with your Heart Surgeon, or agree on a strategy other than "fix it and sew me back up."

It's nearly the opposite in a Lawyer-Client relationship. If there is any hesitation to communicate fully or clearly on either side, then things only go downhill from there. Very often, this is more the Lawyer's fault rather than the Client's. Particularly in the case of younger, or inexperienced Lawyers, there is a reticence to dash the Client's hopes, and a feeling of not wanting to disappoint the Client, or, worse yet, lose the Client by telling them something they don't want to hear. Yet that is only a recipe for more disappointment, down the road. If you're facing a DUI, you need to be rather honest with yourself to help you find the right Lawyer:

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February 15, 2013

How AA Helps a Michigan Driver's License Restoration Appeal, Even if You Don't Go

Within many of the articles on this blog, and in various places on my website, I often point out that being currently involved in AA is absolutely NOT required to win a Michigan Driver's License Restoration Appeal. I go to great lengths to make clear that more than one-half of my Clients are NOT actively involved in AA at the time we begin the License Appeal process. Just by the numbers, however, the majority of my Clients have had, at some point in their lives, at least a little contact with AA. Even though this may have been what seems like a million years ago, having had any spent any time in AA, however far back in your past, can really help in a Michigan License Appeal.

Before I explain, let me reassure the reader who has never been to AA that, while helpful, past AA attendance is absolutely not necessary to win a License Restoration case. Remember, if I represent you, I guarantee a win, and AA attendance does not figure into that at all.

AA Poster 1.2.jpgAs a point of interest (actually, of great interest to me), it is generally accepted in academic circles that the Judicial system (and the Michigan Secretary of State's Driver Assessment and Appeal Division falls into that category) is 10 to 20 years behind the times in terms of understanding and using modern treatment protocols in alcohol and drug-related cases. This means that the modern trend in alcohol treatment has long ago moved away from the "AA for everybody," one-size-fits-all type approach to dealing with alcohol problems, having evolved instead to an approach that utilizes treatment tailored to the needs of the individual. The DAAD is, at least, beginning to catch up...

Yet as far along as new treatment ideas have evolved, AA remains an anchor in the whole conceptual world of Recovery and Sobriety. The notion that the only viable method for overcoming a drinking problem was to seat the drinkers around a table to tell their stories and work the 12 steps seems simple-minded now, but for a long time, it was the only thing that did work, and the only protocol for which there was demonstrated success. In the same way, certain surgeries that used to be invasive and involve lots of cutting, stitching, hospital stays and long-term healing have been replaced by much more efficient methods, including out-patient, minimally invasive procedures that have a person home for dinner that same day with a "butterfly stitch" in the place where the old-fashioned "zipper" used to be. Things change....

Perhaps the most important "gift" of AA is that, by and large, at least to people like me, who deal with DUI's, Revoked Licenses and people still struggling with an alcohol problem on the one hand, and those who have overcome a drinking problem, on the other, AA has given us the "language" of Recovery. It's hard to avoid talking about recovery from a drinking problem and not use some AA terms. And of all the AA terms out there, the granddaddy of them all is "the first step."

AA's first step has become so ubiquitous (meaning found everywhere) that the very phrase "the first step" has taken on a meaning all its own. For example, if your friend goes out and buys nicotine patches in preparation to stop smoking, you would likely congratulate him or her for recognizing that smoking was a problem, and deciding to do something about it. You'd tell that friend that recognizing the need to quit was a good "first step." While this rather misses the real point of AA's first step ("Came to believe we were powerless over alcohol, and that our lives were unmanageable"), it does serve to show how AA has become part of our culture.

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February 11, 2013

Michigan Driver's License Restoration - Full or Restricted License

In my role as a Michigan Driver's License Restoration Lawyer, there are certain questions that I am asked almost daily. One of, if not the most common question asked of me is whether or not a person who wins a License Restoration or Clearance case can skip the Restricted License and obtain a Full License, instead. Given how a blog will "archive" older articles, it's about time that I come back to the topic about Restricted Licenses versus Full Licenses after a person wins their Driver's License Appeal. The answer itself is rather simple, but even after hearing it, many people want to ask the question again, or ask it differently, as if that might bring about a different response.

If you are a Michigan resident and you win a Driver's License Restoration Appeal after having your License Revoked for multiple DUI's (and/or Substance Abuse related convictions), you MUST, as in NO EXCEPTIONS, drive the first year on a Restricted License with an ignition interlock. That answer is simple, but the questions that follow can get complex. The answer is different, however, for those who no longer live in Michigan. We'll get to that later.

Carlock 1.3.jpgThere are no exceptions to the Restricted License requirement. It does not matter how much a person needs a Full License, nor does it matter how much a Restricted License doesn't "work," the Law is clear and absolute on this score.

"Restricted" means 1 of 2 things:

1. The most common Restricted License is purpose-based, and is NOT limited by way of any time of day or night. It allows a person to drive to, from and during the course of employment, to and from school, to and from any support groups (like AA), and to and from any necessary medical treatment. This means that if the boss calls at 3 in morning and demands that you come into work, that's allowed. It also, means, however, that there is NO ability to take the kids to school, go grocery shopping, or drive to Cousin Carrie's wedding.

2. In certain cases, the state will allow a Restricted License that is time-based, and is unlimited in purpose (meaning a person can take the kids to school, can go grocery shopping or drive to Cousin Carrie's wedding) but is limited by time. Thus, such a License will allow a person to drive for any reason during certain, specified hours. There is no ability to drive before or after the specified hours, however, for any purpose. Those hours are usually rather limited, and are not wide-ranging. These "from-to" hours based Restricted Licenses don't allow 16 or 18-hour days. Thus, a person can forget about being able to drive from 6 am to 10 pm. Normally, a person on such a License cannot drive after 7 or 8 pm.

No matter whether a person has a Restricted License that is purpose-based or time-based, they will have to drive with an ignition interlock unit in their vehicle for 12 full months before they can even ask to have it removed. This is also mandatory. If you travel for work, and need to rent a car, you're out of luck. If you have to drive a company vehicle, then any such vehicle has to have an ignition interlock in it. A Michigan resident who wins a License Appeal cannot operate any vehicle without an ignition interlock until the Michigan Secretary of State's Driver Assessment and Appeal Division (now the DAAD, but sometimes referred to by its old name, the DLAD) allows it to be removed. As I noted above, this can only happen after a person has driven on the Restricted License, using the interlock, for one full year.

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February 8, 2013

Michigan DUI - Location Matters

As a DUI Lawyer who handles Drunk Driving cases exclusively in the Courts of Macomb, Oakland and Wayne Counties, I have extensive experience in a limited number of Courts. This is an asset, in the same way that a Cardiac Surgeon has extensive surgical experience on a limited part of the human body. It is because of that repeat experience in the same Courts that I can explain, with a high degree of accuracy, what is going to happen in any given case.

Inherent in this is the fact that every Court is different. But there's more than just that; things can play out very differently in the same Court depending on to which Judge a DUI case is assigned . In the 47th District Court in Farmington Hills, for example, Judge Marla Parker runs a Sobriety Court, while her counterpart, Judge James Brady, does not. Judge Brady will not transfer cases to Judge Parker. This means if you have a 2nd Offense DUI in the 47th District Court, the ability to get into Sobriety Court and keep your Driver's License depends entirely on the Judge to whom your case is assigned.

location 1.2.jpgThis is a bit of an extreme example, but it serves to underscore the larger point that where a DUI case is pending is one of the most important factors affecting it. In fact, with the exception of legal issues related to the admissibility of the evidence, the location of a DUI is the single most determinant of how things will play out. To that end, unless a DUI charge is "knocked out" somehow, what will happen to you depends in very large part on where your charge is brought.

I'm sure these local differences are the same all over the state, but my experience is limited to the Tri-County area of Metro-Detroit. If you have a DUI pending in any Macomb County, Oakland County or Wayne County Court, then you probably already know, or will soon enough, at least, that there are some rather stark differences between them. Once a DUI Arrest has taken place, it's obviously too late to do anything about that. Besides, no one ever plans on getting a DUI. It's not like someone is thinking about going out to pick up a Drunk Driving charge in one County, but not in another. In a very real way, a DUI charge is always an accident of geography.

That said, if you're going to have this kind of "accident", you'll fare much better if it's in a city in Macomb or Wayne County. If you check around even the slightest bit, you'll find that Oakland County is just much "tougher," in multiple ways, than either Macomb or Wayne County in DUI cases. Yet even within Oakland, or any given County, for that matter, there are vast differences from Court to Court.

Macomb County Courts take a far more "real world" view of DUI cases. While no one would argue that anyplace is getting easier on DUI cases, the fact, and I do mean FACT, is that for all the increased penalties and money sanctions that have been poured over the whole DUI landscape over the past 2 decades, there has been no, as in ZERO appreciable decrease in DUI's. Additional License penalties and more expensive fees, fines and costs don't have the effect of preventing or deterring DUI's, they just make life more difficult for those people who make a mistake and get caught driving after having had a few too many.

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February 4, 2013

Michigan Driver's License Clearance - Administrative Review Guaranteed Win

After years of looking for a way to handle out-of-state Driver's License Clearance Appeals without the return trips to Michigan and being able to still guarantee a win, as I do with regular License Appeals that require a person appear for an actual Hearing, I've finally found one. At first, this appears to contradict my strong position that these "Appeals by mail," called Administrative Reviews, are generally losing propositions. The challenge, then, was to find away around the odds, and be able to do that well enough to still guarantee a winning result. I've met the challenge and fixed that problem.

Nothing will ever convince me that there is a better way to handle an out-of-state License Clearance Appeal than coming back to Michigan. I have that process down to a science. But I have also come to understand that making 2 trips back to Michigan to do this can just be too much for many people. For some, it's cost prohibitive, while for others, it's a lack of time, rather than funds. Whatever the reasons, there are a lot of people who simply cannot or will not make the 2 trips back to Michigan. In recognition of that, I've struggled to find a way to help them and still be able to offer a win Guarantee.

cup 1.3.jpgIt would have been rather easy for me to offer some unguaranteed plan to handle an Administrative Review. In fact, most people "wing" these on their own, which no doubt accounts for the overwhelmingly unfavorable results (3 out of 4 lose). Yet my goal is always to win, and beyond just talking a good game, I wouldn't think of doing anything that I couldn't back up with a Guarantee.

A number of logistical challenges had to be put to rest before I could even get to the more substantive issues. I'll spare the reader the minutia of all that, and move on to the most important issue, and how I came to resolve that.

This was the problem of the Substance Abuse Evaluation. I have noted many times that most Substance Abuse Counselors in Michigan don't know how to do them properly. That's not a knock to them; unless an Evaluator has received careful and specific instruction as to how to properly fill out Michigan's form, emphasis on certain areas will be overlooked, and likely misplaced in others. The form itself only looks self-explanatory; it's not. In reality, it's more like a minefield.

I have to meet with a new Client for 3 hours just to prepare them to undergo this Evaluation. If you come to Michigan, we'll meet in my Office for 3 hours. From there, you'll go to a local Clinic to have your Evaluation completed. If you hire me for an Administrative Review, we still need to do the 3 hour thing, but we can do it by Skype or by phone. These first "meetings" will be done during regular business hours (eastern standard time) and will be just like a regular appointment in my Office. My staff will forward a folder of material to you before our first meeting. This way, when we undertake that "meeting," you'll have various forms in front of you so that we can go over them during our initial 3 hours together. When we're done, I'll instruct you to find an Evaluator, local to you, who will do the Michigan Evaluation under my direction and guidance.

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