March 30, 2015

DUI Dismissed - 2nd Offense Thrown out of Court

Just about everyone has heard the old saying, "If you can't beat 'em, join 'em." As a DUI lawyer, it is imperative that my approach in every case is to find a way to "beat 'em." For all we could say about it, the bottom line is that you will not find a way out of a DUI case in Michigan without looking for it. DUI charges do not dismiss themselves. Yet I have also discovered that, while listing my successes feels like bragging to me, the reading public apparently likes this sort of stuff, and uses it as at least one measure by which a lawyer is judged. This article will be about a case I recently handled; in this instance, I got the whole case dismissed. While every situation is different, this case is a very clear demonstration of the important principle that the best outcome in any case is achieved by combining a thorough knowledge of the facts and the law to the skillful management of time, perception and science.

Judgey.jpgThe case at issue was thrown out of court the week before this article was written. My client was charged with operating while intoxicated (OWI) 2nd offense in a local, Metro-Detroit area court. As I've noted before, I try to avoid identifying any particular court because I don't think there is a single Judge out there who wants to ever be perceived or portrayed as being "easy" on drunk drivers. Fair and lawful as the dismissal at issue was, Judges sell themselves at election by promising to protect their constituencies and by being "tough" on criminals. You won't see a Judge running for reelection talking about all the case DUI cases he or she has thrown out of court. In fact, you can take this to the bank: Judges don't dismiss DUI cases because they want to, but rather only because they have to, and the reason they have to is because a lawyer like me has worked hard to find the way out. That's what happened in the case at issue here.

As much as I believe it advisable to refrain from trumpeting identifying court information in the cases I describe, I also believe in not revealing too much detail about how I achieve certain results. Think about it; if the "secret sauce" in a winning case is the result of the careful management of time, perception and science, why would I want the Judge or the prosecutor to know all that. They might think that what I call that the careful "management" of time or perception is, at least in some cases, really a purposeful manipulation of those things. The cold reality is that you can get a court-appointed lawyer who is loved by the Judge and the prosecutor because he or she quickly pleads out every assigned case and moves the docket along at breakneck speed. This is great for the Judge and prosecutor, but if you're the client, it's much better if your lawyer makes things easier for you rather than them. The point I'm making is that being effective isn't about being brash and obnoxious (some lawyers prefer to use the terms "tough" and "aggressive") while stomping into court all full of antagonism and bluster. In a case where getting the most time is important, thundering into court like an angry bull may just speed up a showdown, and the benefit of stretching things out will be lost.

In the case that was dismissed last week, a blood test was taken, and the prosecution was counting on the results for its evidence. At first glance, the case looked pretty much open and shut. Yet a careful review of the evidence led to me finding legal grounds to challenge the blood test results, and, at the end of the day, the Judge wound up dismissing the whole case...

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March 27, 2015

AA and Michigan Driver's License Restoration Cases

Being in AA can certainly provide an advantage in a license reinstatement case. Although AA is not required to win a Michigan driver's license restoration or clearance appeal (more than half of my clients are not in the program and I guarantee to win every case I take), it's time to revisit how AA can help. For anyone who has quit drinking, whether through AA or just because you said "Enough!" and meant it, the simple reality is that staying quit means understanding you can't pick up another drink. While AA didn't invent this reality anymore than Sigmund Freud invented the subconscious, each discovered, and, more important, named these respective concepts. As Freud gave us the language of psychology, AA has given us the "language" of recovery. This has shaped the very way we describe a person's relationship to alcohol: How and when it becomes problematic, and how and why that does, or does not change. Indeed, it is almost impossible to have any kind of discussion about recovery without using at least some concepts and language from AA.

AA Blue.jpgTo be sure, AA was the first game in town, and, for a long time, it was the only game in town. Founded in 1935, AA held sway as the only path to recovery for decades. Although it is now a misconception that you need to be in AA to win a license appeal, there was a time when that was true. Indeed, I remember a time in my own practice, probably about 20 years ago, when we'd have but one simple question of anyone calling to get his or her license back: "Are you going to AA?" If the answer was "yes," then we could continue the conversation. If the answer was "no," then there was no point going any further. Instead, I'd simply advise the caller to start going to meetings and get sign-in sheets, and then call me in a year. Things have changed dramatically over the last 2 decades, but the legacy of AA still casts a long shadow over the Michigan Secretary of State Administrative Hearing Section (or AHS, and until recently known as the "DAAD"). This means that being in AA still provides a "leg up" in a license reinstatement appeal.

Even amongst that share of my client base not currently active in AA, the vast majority has spent at least some time in the program. If nothing else, AA provides a good "base" for many people to establish and learn some fundamentals of recovery. Without a doubt, the biggest gift of AA to the recovery world, and, really, the world at large, is its first step. Although the true meaning and value of the first step can be missed because of its somewhat esoteric wording ("We admitted we were powerless over alcohol--that our lives had become unmanageable"), the takeaway is paradoxically simple and yet often impossible (for the struggling alcoholic) to understand: You simply cannot pick up that first drink. How is it that a person whose life is being ruined by drinking cannot just up and quit? What twist of logic compels a person to continue to drink despite the ruinous consequences of having done so? After months, years, and even decades of failed attempts to "control" one's drinking, how can a person think that, somehow, it will be different this time? The concept of powerlessness provides an effective, if non-specific answer to these and every other similar question: You simply cannot drink (or use or gamble or whatever your addiction) anymore: Not again, and not ever. Yet as fundamental as this is, there is a lot more to AA than just its first step...

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March 23, 2015

The Importance of BAC Results in your DUI Case (Michigan)

In a recent article, I examined the legal and political implications of a "High BAC" DUI charge in Michigan. The very different focus of this article will circle back to the fact that in a DUI case, your BAC result is often the first and most important factor by which you'll be judged in the court system. In a sense, you'll almost wear it, like one of those "Hello my name is ______" stickers. Think of just about any news story involving a drunk driver in recent memory, and you will probably have heard something like the person's "blood alcohol level was .22, almost triple the legal limit." What this means is that just about everyone, whether they have any clue what they're talking about or not, uses a BAC result to further label a drunk driver, and when that number is anything above, say 1 and ½ times the legal limit, to imply that the person is a big drinker, or may have an alcohol problem. This is really the crux of the situation I want to address in this article, because no matter how you cut it, your BAC result tends to define you and can (but does not have to) play a key role in the outcome of your DUI charge.

Numbers 1.2.jpgThis is not another article about "High BAC" charges, so here, when I talk about a "high BAC result" or the like, we're simply talking the breath or blood test results and not the particular legal charge. The biggest concern with a high BAC result is that it implies the person who provided it has a drinking problem. For as much as we can say about this, the takeaway that anyone has when they raise their eyebrows or otherwise remark about an elevated BAC score is that it means a person drinks too much. And make no mistake, the court system generally blunders into this very same conclusion before it even knows if the person at issue is young or old, black or white, or even male or female. In other words, just about every identifier of a person you could name becomes secondary to a person's BAC result. It becomes job number one for me, as the DUI lawyer, to counter this kind of erroneous, albeit reflexive kind of conclusion. Beyond my legal skills I use upon my formal, clinical education in addiction studies to help make sure that BAC numbers DON'T define my client.

This, by the way, is why, the larger panorama of "DUI lawyers," understanding "science" involves a lot more than just the science of breath and blood testing. Sure, it's great to be able to prove that a particular breath or blood test is wrong, or not reliable because of some goof with how it was administered or interpreted, but those situations are by far the exceptions and not the rule. The Michigan State Police are required to do an annual audit of all Michigan courts regarding every DUI and related charge that is brought. As of this writing the last published year is 2013. If we look specifically at the "DUI" charges of operating while intoxicated (OWI), which includes all "High BAC" charges, and operating while visibly impaired (OWVI), there was a total of 35,299 people charged. Chances are, if you're reading this, you're either facing an OWI (1st, 2nd or 3rd offense) or High BAC charge. Of those 35,299 cases, only 511 were thrown out of court; another 1978 were categorized as "no pros dism," meaning that the prosecutor elected not to move forward. A total of 58 people went to trial and won, meaning that they were found "not guilty." You can run the numbers any way you want, but no matter how you do it, only 7.22 percent of all those DUI cases wound up getting dismissed. The reality is that for all the "science" one can theoretically apply to challenge breath or blood test results, the likelihood of winning with that strategy is still only single-digit small, so a tactic with a much greater likelihood of success is needed...

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March 20, 2015

Michigan Driver's License Restoration: A Cerebral Analysis of the Decision and Requirement to not Drink

In my various writings about driver's license appeals in Michigan, I must always reiterate the preliminary importance of sobriety as a necessary perquisite to winning. The driver's license restoration process is all about making sure that someone whose license was taken away for 2 or more drunk driving convictions doesn't get back on the road until there is no doubt that he or she is forever done with alcohol. Anyone contemplating a license appeal after having his or her driver's license revoked for multiple DUI's is going to have to prove that not only doesn't he or she drink anymore, but that he or she doesn't hang around with drinkers, and has, instead, adopted what can be described (and must be proven) as a "sober lifestyle." This is never a problem for anyone who is truly "sober," but plenty of people - none within a million miles of actually being sober - don't quite get this, and mistake the meaning of "sobriety" with not drinking heavily anymore, or just not being drunk.

Color Brain 1.2.jpgThe license appeal process is designed to be difficult. The very rule governing these cases instructs the hearing officer deciding a case to "...not order that a license be issued...," meaning that he or she operates under a negative mandate. This is no accident. It makes sense, when you step back and think about it, that the very idea that a person whose license has been yanked for multiple DUI's is considered too risky to put back on the road if alcohol is anywhere in his or her life. Imagine someone convicted of at least 2 embezzlement charges: Would you give him or her a job as a cashier? And yet there is no shortage of people who will call my office or go before the Michigan Secretary of State's AHS (Administrative Hearing Section, formerly the DAAD, or Driver Assessment and Appeal Division, which in turn was not that long ago known as the DLAD, or Driver Assessment and Appeal Division) and try and explain that they are an exception, and that unlike everyone else, they can have a drink every once in awhile. That doesn't fly with the state...

This kind of talk is not only a quick way to lose a license appeal, but is proof positive that a person is a million miles away from being truly "sober." As a driver's license appeal lawyer, I think this discussion should be front and center in every case, and, to that very point, I won't accept a case for someone who has not really and truly quit drinking. The very important flip side of this is that I guarantee to win every case I take, so that sobriety not only gets you in the door, but assures that you'll be able to slide a valid license back into your wallet sooner, rather than later. Having established that real sobriety is a starting point for winning a Michigan driver's license or clearance case, let's take a look at how people actually get sober. To be clear, I don't mean the method (counseling and/or AA) a person may have used to help find his or her sobriety, but rather what happened inside of him or her that was the "push" that started the whole recovery journey. This is the key to how I win license appeals, because everyone who has truly quit drinking has gone through this. By contrast, not everyone who is sober got there because of time spent in AA or counseling...

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March 16, 2015

Driver's License Appeals in Michigan - Prepare to Win

In a recent driver's license restoration article, I highlighted the importance of my "prep session" with my client immediately prior to his or her actual license appeal hearing. It is critical to the success of any license restoration appeal that the client walk into the hearing fully aware of the questions I'll be asking, and the questions the particular hearing officer deciding the case will pose, as well. Yet being "prepped" for the hearing is really just another step in the proper handling of a case from the get-go. No matter how you cut it, preparation is key to winning a license appeal in Michigan, and that preparation starts the very moment the client walks into my office to begin the license restoration process.

Thumbnail image for Thumbnail image for be-prepared 1.2.jpgOf course, you must be legally eligible to file a license appeal. You must also be genuinely sober to win it. Sobriety is a non-negotiable requirement in a license restoration case, because the 2 main issues to be decided at the Secretary of State's Administrative Hearing Section (AHS and formerly the DAAD), by what is legally defined as "clear and convincing evidence," is that first, your alcohol problem (the law presumes that you have an alcohol problem when you rack up 2 DUI's within 7 years, or 3 or more within 10 years) is "under control," and, second (and even more important), that it is "likely to remain under control," meaning that you are a safe bet to never drink again. This is the starting point: Unless you are both legally eligible and genuinely sober, you can't even get off the starting block with a Michigan driver's license reinstatement case.

It all begins with a 3-hour meeting in my office. Before anything is filed, or any steps are taken, the client and I will have an initial meeting for at least 3 hours so that I can prepare him or her to undergo and have a substance abuse evaluation completed. The substance abuse evaluation is an official state form, and must be completed and filed, along with at least 3 letters of support, along with various other documents, to formally begin a license appeal. This first meeting is essential, and I'm not kidding about the 3 hours. In fact, I won't schedule a meeting with someone if I don't have at least a 3-hour block of time to meet with him or her.

The point of this meeting, as I noted, is to prepare the client for the substance abuse evaluation. This evaluation is, in a very real way, the foundation of a license appeal case. If it is not perfect, or very close to it, the appeal will be denied. There is way more going on in this first meeting than just "prepping" for that substance abuse evaluation, however. The week I wrote this very article, I was hired by a young man who had filed and lost a previous license appeal using another lawyer. He had a couple of years' sobriety, but he had only been off of probation for a few months at the time his prior appeal had been filed. It was clear from the hearing officer's order denying his appeal that he didn't have enough "voluntary" abstinence time, meaning that the hearing officer felt that he hadn't proven himself truly voluntarily sober because his first 2 years of abstinence were accumulated while he was on probation, subject to testing, and, even more important, subject to punishment for drinking. I would have never filed his case when the other lawyer did, and would have had him wait at least another 6 months thereafter, but the other lawyer took his money, took his chances and lost. That would never have happened with me, guaranteed.

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March 13, 2015

Michigan DUI - The Secrets to Success

There are times I'd like to really detail how I've handled a particular DUI charge, or the specific result I've accomplished, but I have to hold back in the larger interests of diplomacy and politics. In this article, I'm going to focus on an extremely good outcome I produced in a local DUI case just 2 days before it was written. The 2 points I want to make are first, that outcomes like this may surprise and encourage the reader, but are commonplace for me and second, that the fact that I don't brag much about these kinds of results isn't so much because I'm modest, but rather because I think it is important to never put any court in a spotlight it may not appreciate, especially when the break I've gotten may make the court seem "soft" in a way that a Judge wouldn't appreciate.

Shhhhhhh.jpgThe case at issue was handled in a Metropolitan Detroit area court. My client was charged with 3rd offense drunk driving, which is a felony. His 2 prior offenses both occurred within the last 10 years, so by all appearances, he was on a roll. To keep the reader's interest, let me fast forward to the conclusion: I got the felony charge dismissed and the client was able to avoid getting that on his record; instead, he was able to plead to a reduced misdemeanor charge and, better still, when all was said and done, he walked out of court without having to do a single day in jail. There is even more good news to the story, but we'll save that for the end, because the strategy I used is key to how I produced these results, and why such outcomes are all part of a day's work for me.

Never forget that Judges are elected. It is, understandably, a political liability to be seen as "easy" on drunk drivers. For that reason, I generally don't believe it helps in the practice of defending DUI cases for any lawyer to start cataloging his or her accomplishments in drinking and driving cases with enough detail to identify a particular court. No matter how you analyze things, it never hurts a Judge's ability to get reelected or standing in the community if he or she develops a reputation for being tough on drunk drivers, although the opposite is certainly true. Accordingly, I usually omit any geographic reference when I write about any of the cases I have handled.

In some of my other articles, I have mentioned that the best outcome possible in any DUI case is the produced by knowing the facts and the law as well as the skillful management of perception, science and time. That certainly sounds highbrow enough to be profound, and in its proper application, it really is; the problem is that skillfully managing things like perception and time requires being stealthy, or, one might even say, secretive. It is a given that the magician wants to amaze the audience, and giving away the secret to the trick is not the way to do that. What this means, then, is that I can't really get too much into how I do the things I do. As a prosecutor recently said to me in another context, "best to not let them see how the sausage is made." Even so, there is a lot I can share about how we go from arrest and charge to good result...

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March 9, 2015

First Offense DUI in Oakland County

If you have been arrested for a 1st offense OWI (Operating While Intoxicated) charge in any Oakland County city or township, you've probably already heard that things are "tougher" there than in neighboring Macomb or Wayne Counties. In this article I want to go beyond just repeating this statement in order to learn why it certainly feels this way if you are the person facing a DUI charge. There are a lot of municipalities in Oakland County, but all DUI charges will be processed through the local courts in either Rochester Hills, Troy, Royal Oak, Novi, Madison Heights, Farmington Hills, Waterford, Oak Park, Southfield, Bloomfield Hills, Pontiac, Ferndale, Berkley, Clarkston, Hazel Park and Plymouth (Plymouth/Canton). The differences amongst these courts and the Judges within them is too vast to even summarize in an article, so we'll focus instead on the similarities that make Oakland County, like each of the other 2 counties that make up our Tri-County area unique.

Lego Cop 1.2.jpgLet's start off with a bit of good news: No matter how horrible things may feel or seem right now, they probably aren't nearly as bad as you fear. When it's said that the courts of Oakland County are "tougher," that really has nothing to do with jail. The sole and well-documented exception to this is one Judge in Bloomfield Hills' 48th district court who usually (but not always) requires even first time offenders to do a bit of jail time. Her practice has garnered national attention precisely because it stands out in such stark contrast to the fact that jail is just not on the menu in all other 1st offense drinking and driving cases, and this applies everywhere, not just Michigan. Beyond easing your worst fears, this should help you look past the sales pitch of those lawyers whose marketing technique is to "avoid jail" in a 1st offense DUI, because that's not going to happen anyway. We begin then, with the general proposition that you're not going to jail.

How, then, do Oakland County courts get a reputation for being so tough if they don't lock people up? The answer lies in what can be described their "progressive" approach that is really a preview of how things will be done by other courts later in time. In this case, "progressive" winds up meaning "protective," which in turn equates things like counseling, education, treatment and testing, as in urine or breath testing. A number of years ago, the whole concept of alcohol testing as a condition of bond (release) was unheard of. The very first local court to adopt it, not surprisingly, was in Oakland County. While the idea didn't catch on there like wildfire, the practice steadily grew and became the norm throughout most of Oakland County before it ever found its way into either Macomb or Wayne Counties. With time, first one Macomb County court, then another, and thereafter still more began to require anyone facing a DUI charge, including a first offense, to test for alcohol while out on bond. By this time, the practice was ubiquitous in Oakland County, and more common than not in Macomb, as well; Wayne would soon follow suit. What does "progressive" mean, and how will it affect your DUI?

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March 6, 2015

Ignition Interlock Trouble - What to do Right Now

An unfortunate part of my caseload, as a Michigan driver's license restoration lawyer, is handling ignition interlock violations. I have written about the various kinds of violations in some detail, but always from the point of view of the lawyer in my role of representing someone at a hearing before the Michigan Secretary of State Administrative Hearing Section (now the AHS, formerly the DAAD). In this article, I hope to reach out to someone looking for an answer to a question like "What should I do right now?" If your machine has just given a false-positive reading, or you have had something like a start-up failure, a missed rolling retest, car trouble (like a dead battery) or work done on the car, let's quickly look at some steps you can take to immediately make things better.

Wylie 1.2.pngStart-up failure: If you have a start-up failure, you need to retest right away. Rinse your mouth out with water, wait a few minutes, and then try again. Whatever else, DO NOT just leave your car and go to work or school. I don't care if you have the President of the United States waiting for you, if you cannot get a clean test and start your car, get your butt to the nearest police station and take a PBT (portable breath test). It can cost anywhere from $5 to $15, but if you have not been drinking, this will be the best money you ever spent. That PBT needs to be done right away; a test taken an hour after a failed interlock test is pretty much useless.

DO NOT sit on the phone wasting time with the interlock company; go get that test now. The sad reality is that pretty much all the time you will spend on the phone with the interlock folks will do nothing. I have NEVER seen a violation situation where anything useful came from time spent on the phone with the interlock people, and I've handled more interlock violation cases that you could count. At best, they'll tell you what I just did. They have no magic "fix" they can send down the line, and no way to instantly verify that you haven't been drinking. They are terrible at documenting anything; in any case where I need to prove a person made calls to his or her interlock company, I have the client pull his or her phone bill, although that "proof" is almost never directly important. Even then, all we can prove is that a call was made. Think about it; even if the interlock people took copious notes, all those notes would say is something like "Customer called and claimed he/she wasn't drinking and that unit malfunctioned. Told customer to rinse mouth and retest and/or take breath test at nearest police station." That is of precisely zero value in proving that you didn't drink, while precious time you could spend actually spend getting a breath test that proves your claim that just ticks away.

Positive rolling retest: This should be treated the same way as a start-up failure, to the extent possible. In the real world, people often blow a positive number for a few minutes here and there, but when those numbers are really low and then they go away by the next test, and there is no violation. If, however, your results cause a violation, or don't dissipate quickly, the key thing is to get a PBT test right away. If some circumstance prevents you from getting a PBT within a very short period of time, then get an EtG test that same day, or the next. If you're unclear about where to go, chances are you can call the probation department at the court where you had your last DUI, or even the probation department of a court near wherever you are, and find out what lab or testing facility they use to have these tests done. Most EtG tests will go back a few days to prove you haven't been drinking.

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March 2, 2015

DUI puts a Non-Criminal in a Criminal Situation

Sometimes, when I tell someone that I am a DUI lawyer, they'll ask me what it's like to deal with criminals. I will then go on to clarify for the other party that while drinking and driving charges are, in fact, criminal charges, my clients are not, in any sense of the word, "criminals." If you take the time to read any of my other DUI blog articles, or you poke around my website, you'll quickly learn that I am candid without being crude, and direct, while simultaneously delicate. Accordingly, I cringe at what people sometimes say, but then go on to explain that although my DUI clients are, in fact, dealing with a "criminal" offense, they are decidedly non-criminals.

i-am-not-a-criminal 2.1.pngI have long said that the litmus test by which I operate is to only take a case for someone with whom I wouldn't mind having lunch. In other words, I really only want to work with people that wouldn't make me uncomfortable across a dining table. While I believe that everyone deserves fair treatment under our judicial system, that doesn't mean I want to hang around with real "criminals." In my world, most DUI cases involve a confluence of events that usually brings an otherwise law-abiding citizen into under the jurisdiction of the court (meaning the criminal justice) system. That's really a nice way to say that, at least amongst my clients, a decent person by every standard who may have had a little too much to drink winds up having to deal with a criminal charge.

That alone, however, does not make a person a criminal. In fact, even a 2nd or 3rd DUI offense doesn't necessarily make a person "criminal." I'll admit, for example, that before Michigan made them legal, I would blow off firecrackers around the 4th of July. That certainly constituted a violation of then-existing law; in point of fact, by doing so I was committing a criminal offense, but I didn't then and don't now feel like any kind of "criminal." Indeed, my actions in lighting firecrackers were completely intentional; I intended that they go "boom." Most people who get caught driving over the limit, however short sighted their evening plans may have been, probably didn't leave home with an intention to "drive drunk" later on.

For countless reasons, DUI cases can just "happen." That's the simple, if not completely satisfactory reality. Amongst my clients, many of whom are professionals, a DUI charge stands in stark contrast to every other part of his or her life. When you juxtapose "DUI" and "criminal charge" against the backdrop of the person's family, education and career, the whole incident almost exposes itself as truly out of character. After a quarter century of clients imploring me to believe "this is not who I am," this article is a kind of belated attempt to reassure them that, in fact, I do...

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February 27, 2015

High BAC in Michigan (Metro-Detroit)

A few years ago, I wrote an article pointing out that despite the passage of Michigan's then-new High BAC law (Operating While Intoxicated with a BAC of .17 or greater), very few DUI arrests were actually resulting in High BAC charges. That was then; things have changed a lot in the last 3 years, and for reasons we'll explore in this article, the number of DUI arrests that result in High BAC charges has multiplied dramatically. As with so many other things in life, this turns out to be about money. For all the public safety concerns and moral preaching about drunk driving, the stark reality is that DUI cases are the big money makers in the court system. For a while, High BAC cases were decidedly unprofitable for local municipalities. Now that a growing number of cities and townships can cash in, so is the number of High BAC cases popping up in local courts. In this article we'll look at what changed and what this means to you if you're facing one.

blood_alcohol_levels 1.2.jpgThis can get rather technical, but the quick and easy version is that because High BAC is a drinking and driving offense punishable by up to 6 months in Jail and a fine of $700, it originally had to be charged as a "state crime," meaning that your local municipality could not enact an ordinance covering this offense. Here's what this means: Because High BAC was a "state crime," all the money the court collected by way of fines went right to the state. Now, if you figure that roughly 1 out of every 3 or 4 (or even 1 out of every 5) DUI charges involves a BAC of .17 or above, and you do some quick, blackjack math, you figure that's tens of thousands of dollars bypassing the local community and going into the state coffers. Worse yet, that's tens of thousands of dollars those municipalities used to collect under the old DUI laws that they would start losing out on in High BAC cases. It's not just that the locals were missing out on the increased fines, they would be giving up roughly anywhere from 20% to 30% of their existing revenue stream.

That didn't fly. For a while, lots of worried drivers breathed a sigh of relief thinking that they somehow caught a "break" when their BAC results were .17 or higher and they only wound up being charged with a straight up OWI. As I wrote then, the municipality was only giving itself a break, because it didn't want to waive at a boatload of money as it floated right on by. Frankly, I wasn't displeased with the way things were handled then, because as a DUI lawyer, it meant that my clients faced less trouble right out of the gate. From the get-go, there were more High BAC cases in the various courts of Oakland County than in either Macomb or Wayne. Whatever concerns were behind the slow pace of bringing these charges in general, they seemed to be less an issue in Oakland County more than anywhere else.

Soon enough, the Governor signed a law that allowed local municipalities to enact an ordinance that would cover High BAC offenses, meaning that if the local police arrested someone with a BAC of .17 or higher, the case could be charged as a High BAC under a local ordinance so that the case could be handled by the city, township or village attorney, and the money collected would stay local, and not go to the state. Can you say "Presto?" Suddenly, High BAC ordinances were popping up everywhere, as were the number of High BAC charges. What became good news for the money counters and local treasurers became bad news for someone whose "a little too much to drink" was, indeed, a little too much.

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February 23, 2015

The First 2 Things you need to win back your Driver's License in Michigan

The first two legal considerations in any Michigan driver's license restoration appeal case are sometimes lost and/or overlooked in any examination of the subject. I write extensively about every facet of license appeals, and these issues are explicitly addressed in some of my articles, and of implicit concern in all. Anyone with even a little curiosity can dive in to my examinations and spend just about forever reading; I have over 272 license restoration articles (as of this writing), each about 3 or 4 pages long. End to end, that would be a book of more than 1000 pages. For all of that detail, I think it's time to write an article aimed at someone looking for some very basic information about winning back a Michigan driver's license, or clearing a Michigan "hold" on a person's record that prevents him or her from obtaining, or renewing a driver's license in another state. Very often, it is a close family member, friend or significant other of the person without a license who begins the search for help and information. This is where you should start.

Things 2.1.jpgJust about all of my work is for people who have lost their driver's license because of multiple DUI's, and/or DUI's and drug (driving) convictions. In these types of cases, a person's license (or privilege to drive within Michigan) has been revoked, meaning taken away forever. In order to restore a license that has been revoked, a person has to file and win a driver's license appeal case before the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). It does not matter how long a person has been without a license; there is no time period whereby a person can simply "wait it out," no process to just "get" it back, nor is there a way to bypass the formal appeal process by going to court. In fact, the law specifically forbids a hardship appeal to court in any case where a license has been revoked for DUI's. The only way to win it back is through a formal license appeal hearing.

This means, then, that there is a specific, step-by-step process that must be followed to get back a diver's license that has been revoked. The first condition, which must be met to even start the license restoration process, is that a person must be eligible to do so. This is a purely legal question, and it requires nothing more than simple math. In cases where a person has had 2 DUI's within 7 years, he or she will be ineligible to file a license appeal for at least 1 year. If someone has 3 drunk driving convictions within 10 years, he or she will not be eligible to start the license appeal process for at least 5 years. These dates are absolute; there is no workaround, and no provision for the state to "care" how hard it is for a person without a license, or how much he or she needs one.

Without a doubt, one of the most important things to understand about license restoration cases in general is that they are meant to be hard. The whole point of the rules governing license appeals is to prevent giving back a license to someone who is a risk to ever drink again. This brings us to the second condition, that a person is genuinely sober and has the commitment and tools to never drink again. Here we discover the "real meat and potatoes" of the license restoration process. From the state's point of view, a person with 2 or more DUI's is a huge risk; too risky to ever put back on the road if he or she has ANYTHING whatsoever to do with alcohol. The state presumes, by law, that anyone whose license has been revoked for multiple DUI's has a drinking problem, and it is NOT going to waste any time hearing someone argue that he or she doesn't. Instead, the starting point in license restoration or clearance appeals is that a person has completely eliminated alcohol from his or her life, and will never screw around with drinking again. That means that a person must be committed to complete and total abstinence - forever.

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February 20, 2015

AA is NOT Necessary to win a Michigan Driver's License Appeal

One of the most common misconceptions about winning back your Michigan driver's license is that you have to be in AA to do so. Many people convicted of 2 or more DUI's are ordered by their Judge to attend AA for a time. The cold, hard truth is that while some folks take to the program, most people don't like it. Unfortunately, a lot of people otherwise eligible to file a Michigan driver's license restoration appeal are under the misunderstanding that they need AA in order to win. This is simply NOT true. I am a busy driver's license appeal lawyer and I guarantee to win every case I take, so I speak from unmatched successful experience when I point out that the majority of my clients are not involved in AA.

Room_Main 1.2.jpgFor some reason, there is a lingering notion that sobriety isn't "official" or real if it's not backed by AA attendance. That's just plain wrong, and should help us appreciate the significance of the old saying that "the proof is in the pudding." If you have been abstinent from alcohol for any length of time and you do not attend AA, then you know, because you are living proof, that a person can remain sober without attending Alcoholics Anonymous meetings. More important than what you or I know, at least within the context of a driver's license restoration appeal, is the fact that the Michigan Secretary of State, through its Driver Assessment and Appeal Division (DAAD, and formerly known as the DLAD) also understands that many people can maintain an alcohol-fee life without having to be "in" AA. This was not always the case, however, and it is this leftover vestige from days gone by that perpetuates this urban legend that you can't stay sober, much less win your license back without being part of the program.

As a DUI and license appeal lawyer with extensive post-graduate clinical training in addiction studies, I know that numerous studies have empirically validated the fact (and yes, it is a fact) that the majority of people who maintain long-term sobriety do it without staying in AA. More specifically, studies show, and my real-world experience confirms, that about 2 out of 3 people who manage sustained abstinence from alcohol do so on their own, without AA, and often with only the support of family, friends, and a better outlook on life. If this sounds like you, then the only thing preventing you from starting the process to get your license back is your own hesitation.

Often enough, someone will call my office wanting to know if he or she should "start" going to AA, or go "back" to AA in order to look good for a license appeal. While my answer is almost always "no," it's not just about convenience. Part and parcel of the whole driver's license and clearance process is being honest; if you're genuinely and honestly sober, then the story of how you got there shouldn't be dressed up for the sake of appearance. You either attend AA to stay sober, or not. If not, then let's begin the license appeal process by being truthful. If you don't drink, and you don't feel the need to go to AA, I will make sure you slip a valid license back into your wallet without having to be at meetings you don't need attend just to "look good." The whole idea of winning a license appeal based upon anything other than the straight truth is really antithetical to the larger principles of honesty in recovery, and nothing I want any part of.

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February 16, 2015

Ignition Interlock Violations in Michigan - Test, Rinse and Repeat

Almost all of my blog articles about Michigan driver's license restoration deal with aspects of winning back your license. This article will be about how to avoid certain ignition interlock violations, or at least win a interlock violation hearing. In my role as a driver's license appeal lawyer, I regularly handle ignition interlock violation cases. At least amongst my clients, the overwhelming majority of interlock violations are NOT the result of a person consuming alcohol. While there is a lot to this, the ultimate concern in any interlock violation, from a startup failure, positive breath test, missed rolling retest or a tamper/circumvent is that the person required to use the interlock has, in fact, been drinking. Especially when that's not the case, an interlock violation is just a horrible thing to confront. Although there is no way to just "avoid" certain violations, there are steps you can take to make sure that you can prove you weren't drinking.

Rinser 1.2.jpgIn theory, someone from your interlock company should have carefully explained all this to you at the time your unit was installed. In practice, it doesn't always happen that way. We can belabor what was or what should have been until doomsday, but the bottom line is that if you're reading this, you either want to know what to do, or you are looking back and wondering what you should have done. Most of what we're going to examine has to do with startup failures, rolling retest violations, and plain old positive breath test readings.

If you have a start up failure, positive breath test or a rolling retest violation, you need to keep testing to prove you weren't drinking. In a startup failure situation, DO NOT just bail out of the car and come back an hour or more later to test. It looks like you were trying to time earlier drinking, saw you were positive, and then came back after you knew you'd test clean. The DAAD (the Michigan Secretary of State's Driver Assessment and Appeal Division) doesn't care if you have a meeting with the Queen of England and you'll be late to get to it; it assumes that a positive test without a timely retest means you were drinking.

When you have a startup failure, rinse your mouth out with water and test again within 5 minutes. Whatever else, keep testing on the interlock unit, and as soon as you can drive, go to the nearest police station and take a breath test (called a PBT). You may have to pay for this, but now is not the time to worry about that. If you are locked out of your car, then get a ride to the police station ASAP. Do not wait on this because a breath test taken 2 hours later is generally worthless. All the excuses in the world don't make any difference if you haven't gotten a PBT. Either you can prove you didn't drink or not. Without that PBT, you cannot, and all you have to sell is a story. With a negative and timely PBT, you have solid gold proof that you didn't drink. To be clear, sometimes you might have a very minor BAC that does not prevent you from starting the car, or continuing to drive, and that disappears quickly. While there is no precise definition of "very minor," when a BAC decreases quickly, it usually can be dismissed as errant. Even so, knowing what I know, I would promptly get a PBT in just about any positive BAC situation just for insurance later on, because you will need it...

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February 13, 2015

Macomb County DUI

As a lawyer with a vibrant Macomb County DUI practice (my website's URL is a pretty big clue), I know the differences between all the courts, and, indeed, the differences between the various Judges working in the same courthouses within the county limits. Handling the cases for all the cities, townships and villages in Macomb County are the 9 district courts in Warren (37th district), Eastpointe (38th district), Roseville (39th district), St. Clair Shores (40th district), Sterling Heights (41A district - Sterling), Shelby Township (41A district - Shelby), Clinton Township (41B district), New Baltimore (42-2 district) and Romeo (42-1 district). Felony (3rd offense) DUI cases are decided in the Macomb County Circuit Court in Mt. Clemens, directly across the street from my office. While each court is different, and every Judge unique, the one unifying factor that is the hallmark of the entire district and circuit court structure of Macomb County, at least as far as DUI cases are concerned, is the sheer excellence of the Judges.

Thumbnail image for distcourts2 1.2.jpgThis is not intended to be some "suck up" piece, nor is it my intention to imply that there aren't plenty of other top notch Judges in Oakland or Wayne counties. Rather, this very short article is meant to put anyone facing a DUI charge in Macomb County at ease, or as least as much at ease as possible, given the situation. The beauty of practicing in Macomb County as a local DUI lawyer is that every Judge here is excellent, and you won't find one "stinker" in the lot. In all candor, a very important factor that gives a Judge high marks in my book is how fair (the reader may think "lenient") he or she can be. I don't confuse leniency with being spineless, or less intelligent, but rather what I'd call appropriately flexible. It is both easy and efficient for a Judge to take a one-size-fits-all approach to drunk driving cases and hammer everyone. Beyond making things easy, there is ZERO political risk in being known as "tough" on drunk drivers. It requires more courage, effort and a refined intellect to fashion a fair and reasonable sentence in any given case than it does to just be tough across the board.

To be perfectly honest, there are some Judges I'd rather have in any one case over another, but that could easily flip in a different situation. Consider this example: Judge "A" is usually very understanding toward 1st offense DUI offenders, but rather firm (here, the reader may think "tough") in 2nd offense cases. By contrast, Judge "B" may not be as lenient in a 1st offense case, but may turn out to be more understanding to a 2nd time DUI offender who has been appropriately guided to take the right steps to help in his or her case. Every Judge on the bench today used to practice law before he or she became a Judge, and you can be sure that each one of them had their own preferences amongst the Judges before whom they appeared. Yet for all that, the Judges of Macomb County don't vary widely by being all over the map in terms of being lenient versus tough. Instead, there is a consistency of fairness that applies across the board here that just serves to make things better in any DUI case that arises in Macomb County as opposed to anywhere else...

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February 9, 2015

Michigan Driver's License Holds and Clearances

About half of my Michigan driver's license restoration practice involves getting a clearance for a Michigan "hold" upon a person's driving record that prevents him or her from obtaining (or renewing) a driver's license in another state. A recent conversation made me realize that although those clients who need a clearance come from all over the country, there are a few states, like Florida, Arizona, California, and Illinois that tend to be the destinations of former Michiganders whose licenses were revoked at the time they left here. The problem, of course, is that no matter how long a person waits, a revoked license will stay revoked, sitting there like a brick, until it is cleared up.

Michigan Sign 1.2.jpgFrom my experience as a driver's license appeal lawyer, the holds that Michigan tacks onto driving records wind up affecting people in Florida more than any other state. I would estimate that amongst all of my out-of-state clearance clients, the largest percentage, by far, come from the sunshine state. There are a lot of good reasons that explain this, but the bottom line is that a lot of Michigan people move to Florida, often for work or family, and they go while their Michigan driver's license is still revoked for multiple DUI's. Unfortunately, this situation is like a dropped anchor; no matter how far you go, or where you go, you remain tethered to Michigan by your inability to get a license.

Many, if not most people who live in Florida, Arizona, California or Texas and who have to get rid of Michigan's hold on their driving record will first try to do it themselves. The Michigan Secretary of State's Driver Assessment and Appeal Division (also known as the "DAAD," and sometimes referred to by its former acronym, the "DLAD") offers a person the opportunity to appeal by mail; this called an "administrative review." The allure of convenience, and the understandable savings afforded by this "do-it-yourself" process is too much for some to resist. Statistically speaking, 3 out of 4 "administrative review" appeals are denied. Given a success rate of about 26%, this really amounts to a quick, cheap and convenient way to lose. One must wonder how many times those 1 out of 4 who eventually do win have tried before. Whatever the answer, the administrative review process is really a shortcut to remaining in the passenger seat more than anything else.

Eventually, most people give up, and that's when I get the call. Beyond just "doing" these cases, and even beyond the fact that I guarantee a win in every case I take, my office has developed a process to handle out-of-state cases that maximizes efficiency while minimizing cost and inconvenience. For all there is to it, the bottom line is that my client will come to meet with me one day, usually in the mid-morning, for our first, 3-hour appointment, and then leave my office and go directly to the local clinic I use in order to have his or her substance abuse evaluation completed. This allows the client to be on his or her way home, or wherever, by late afternoon. Thereafter, a few months later, the client will return one more (and last) time to attend his or her hearing.

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