Michigan Criminal Defense Lawyer Blog

One of the most common questions I am asked as a DUI Lawyer is whether or not someone facing a DUI should get involved in some kind of Counseling. In a prior article, I examined some general rules about when a person should consider getting into counseling, when they absolutely ought to, and when it is really unnecessary. In that article, I examined Counseling and Treatment from a legally strategic point of view, with no reference to the actual needs of the Client. This (long) article will focus on the needs of a DUI Client relative to a potential drinking problem, and how those actual needs can sometimes seem to be at odds with the best legal strategy.

I have a rather extensive background in alcohol and substance abuse diagnosis and treatment. This field of study has been a specialty of mine for over 20 years. It is this specialized knowledge that has been the basis for my success as a Driver's License Restoration Attorney, a field in which I maintain a win rate so close to 100% that I guarantee I'll win any License Appeal I take. It is not my experience as a License Restoration Lawyer that makes me so knowledgeable about alcohol and substance abuse maters; rather it is my knowledge of those things that makes a better License Restoration Lawyer.

Based upon my 20-plus years' experience handling DUI and License Restoration cases, I have certainly honed the skills necessary to assess the best legal strategy for a Drunk Driving Client. However, as noted at the outset, the best legal strategy sometimes differs from the best choice to meet the personal needs of the Client. Let's examine the considerations, conflicts and matters of conscience that are part of the mix, and, at times, the dichotomy of being an "Attorney and Counselor at Law."

We sometimes confuse the notion of a "good" Lawyer with someone who is bold and aggressive. Those qualities are, on occasion, necessary when defending someone, but as personality traits they are rather standoffish. Unfortunately, the media too often gives airtime to those Lawyers who are simply brash, confrontational and loud. If there is one lesson I have learned well as a Practicing Lawyer, it is that the most successful people in any field, be it business, sales, politics or even law, are those who win people over by persuasion, and not by intimidation. Being argumentative and loud may attract attention, but it does not attract much else.

I have often likened my job to being a diplomat. In a DUI case, I have to temper my Client's hopes of simply beating the case, and I have to temper the Prosecutor's ambition to convict the person of everything under the sun, and lock them up for it. Except for those lucky occasions when there is a significant enough defect in the evidence to get the case knocked out, I explain the realities of the situation to my Client, and I thereafter persuade the Prosecutor and the Judge to take it easy on the Client, essentially brokering a deal that both sides can live with.

Part of that "diplomatic" role I play is to earn the Client's trust, and to not offend them, or in any way put them off. This means that when I meet someone who clearly has a drinking problem, but is likewise clearly in denial, I don't just bull-rush in and scare them off with a lecture that will only fall on deaf ears, anyway. Instead, I gauge the person's receptiveness to the suggestion that they might want or need to look at themselves from a different perspective, and proceed accordingly.

That sounds straightforward enough, right?

Continue reading "Drunk Driving in Macomb, Oakland and Wayne Counties - the DUI Charge, Drinking, and Counseling" »

In part 1 of this article, we began our overview of the importance of the Substance Abuse Evaluation in a License Restoration Appeal. In this 2nd part, we'll continue that overview by examining how a Substance Abuse Evaluation in a License Appeal must meet 2 threshold requirements: First, that is "legally adequate," and second, that it is "favorable."

I noted that part of my motivation in writing this article was the frustration I feel when I see a Substance Abuse Evaluation that hasn't been done properly. This really means that a Substance Abuse Evaluation fails to meet either of the 2 requirements it must meet in order to be deemed "good."

First, and foremost, a Substance Abuse Evaluation must be "legally adequate" in the eyes of the Secretary of State. Take a look at the Form. Every one of those lines and boxes require very specific information. The only requirement for the person completing that form is that they be Professionally Licensed to administer and score an alcohol assessment, and make a DSM-IV diagnosis. In other words, being a Licensed Substance Abuse Counselor is all that's needed to sign off on this form.

Notice that the form does NOT request tons of information. Instead, it requests very specific information. Yet, of the many cases which come to me after having tried and lost on their own, or with a Lawyer who claimed to "do" License Restorations, a fair number of them feel that more information is better. I've literally seen 3 and 4 extra pages of information attached to a losing Evaluation. In most of them, beyond including lots of useless details, the exact, specific information requested by the form was left out!

A legally adequate Substance Abuse Evaluation provides exactly the requested information sought on the form. Anything more is a waste of ink and space. In order to know what the Secretary of State really wants, a Counselor must prepare these Evaluations on a regular, on-going basis, and then get feedback from the subject of the evaluation regarding a win, or loss. In other words, without seeing how those evaluations are "evaluated" by the Secretary of State, the person doing them really can have no idea of whether they're getting it right, or wrong. Even if they manage to get it right, that should be the product of knowing what's being sought, rather than sheer luck.

Thus, "legally adequate" means providing the exact, specific information the Secretary of State wants, in the right place, on the Substance Abuse Evaluation Form. If a Substance Abuse Evaluation is not "legally adequate" because it is deficient in some regard, then the Appeal is lost. Nothing can save it. Game over, in other words.

However, submitting a "legally adequate" Substance Abuse Evaluation does not win, nor come close to winning, a License Appeal. It just means you haven't struck out.

Continue reading "Driver's License Restoration in Michigan - The Substance Abuse Evaluation - Part 2" »

In my numerous articles about Driver's License Restoration, I have examined the process of getting back on the road in fine detail. In many of those articles, I have talked about the role of the Substance Abuse Evaluation and how important it is. In this article, we'll take another look at this first, and utterly critical step in a License Appeal. This is a deep subject. Still, even a somewhat superficial overview will be informative. To do such an overview justice, we'll break the article into 2 parts.

Part of my motivation to write this article is the fact that the Michigan Secretary of State's Driver Appeal and Assessment Division (DAAD), which overseas all aspect of License Appeals, has recently revised the Substance Abuse Evaluation Form. The other part of my motivation is a sense of frustration at the fact that so many Counselors and Therapists who have the academic and professional credentials to fill out and sign this form DO NOT have sufficient experience to know specifically what information the Secretary of State needs and wants, and what information, while perhaps interesting, does nothing to help a case.

Part of the problem I've seen with Evaluations that I've not a hand in obtaining is the omission of specific, required information. This is sometimes compounded by the inclusion of lots of other, irrelevant information. We'll discuss this a bit more as we talk about the 2 threshold requirements for a Substance Abuse Evaluation in a License Appeal; that it be "legally adequate," and that it be "favorable."

In response to simply not getting the information it needs to decide a License Appeal, the Secretary of State has recently revised the Substance Abuse Evaluation Form. Instead of just leaving blank lines under the Prognosis section, the new Form actually has check boxes so that it gets an actual Prognosis, rather than a discussion about one not actually written. It is noteworthy that the new Form has a check box for a "Guarded" Prognosis, and omits one for "Very Good."

The same thing has happened to the section for Diagnosis. Rather than hope an evaluator will give a DSM-IV diagnosis, the Secretary of State has created check boxes for all those that are relevant to an alcohol problem.

The reason for this whole revision is that too many people who have the Professional credentials to complete an Evaluation try their hand at it, even though they don't have the requisite experience. My Law License does not prohibit me from taking on a complicated Medical Malpractice case. My lack of training and experience in that field means I should not.

Even with these changes, the fact remains unchanged that there are relatively few Counselors who have a thorough understanding of the License Restoration process. For that matter, there aren't a lot of Lawyers who have that understanding, either.

Continue reading "Driver's License Restoration in Michigan - The Substance Abuse Evaluation - Part 1" »

In part 1 of this article we began discussing the concept of Alcohol Assessments, and how I came to realize how very important the results of any Alcohol Assessment test was in terms of the Sentence a person received, particularly in a DUI, where such a test is required by Law. In this second part, we'll pick up right where we left off and continue our examination of the role of the Alcohol Assessment test in DUI and other Criminal cases, and how a person can and should be prepared in order to do as well as possible at this most critical stage.

Now let's be clear about the role of these tests. In a DUI case, for example, the results of whatever test is given is, BY FAR, THE SINGLE MOST IMPORTANT FACTOR in determining what kind of Classes, Counseling, Education, or Rehabilitation Services will be ordered for the Defendant. It doesn't matter who you are, where you work, or who you know, if your test score indicates that you have, or are at risk to develop an alcohol problem, you are going to be ordered by the Court into some kind of Counseling or Treatment. End of story.

This means that scoring as well (meaning as low) as possible on this kind of test will have the biggest and best impact on the outcome of a DUI case, short of having the whole thing dismissed. It also means that missing a beat here or there will send you to Classes, Counseling, or Treatment that you might have otherwise been able to avoid.

So that's really the bottom line to all this. After we strip away all the "politically correct" ways to discuss this, the unblemished truth is that if you know how to score as low as possible on one of these tests, then the outcome of your case will be better.

Makers of Radar Detectors will proudly tell you their products are not made for the purpose of defeating any legitimate law enforcement tool, nor are they sold to help people break the law (meaning speed). Instead, the sales pitch involves your right to know if you're being watched.

Ditto for preparing for any kind of Alcohol or Drug Evaluation Test. I'd never suggest anyone lie, or give an untrue answer on one of these tests, but I sure as heck think that you have the right to know how you're answers will be evaluated, and how any particular answer affects your test score. In that regard, you have every right to know what you'll be asked about, and every right to know how your answers will affect the outcome of your DUI (or other) case.

Continue reading " Michigan DUI and the Required Alcohol Assessment Test - Part 2" »

This article will deal exclusively with certain aspects of the Alcohol Assessment, which is required, by Michigan Law, in all DUI cases. Sometimes referred to as an Alcohol Evaluation, or a Substance Abuse Evaluation, this kind of test is often administered in many other kinds of Criminal cases, particularly those involving alcohol or drugs. Like many of my longer articles, it will be broken into 2 parts.

A huge part of my practice involves helping people who are facing a DUI charge. Under Michigan Law, before anyone can be sentenced in a DUI case, they must undergo a mandatory alcohol assessment. This means they take a written alcohol evaluation test. This may be one of many different tests, but whichever is given, the test is graded with a numerical score. Generally speaking, the higher a person scores, the more likely they are to develop, or have an alcohol problem. The lower they score, the less likely they are to develop of have an alcohol problem. If you're thinking "lower is better," then you you're right on track.

I have been hesitant to publish this article out of a concern, misplaced perhaps, that it would appear I'm helping my Clients "cheat." Further consideration led me to overcome that concern by realizing that any Client has a right to know exactly what they will be facing in any case, and as a Lawyer, I have an obligation to be as thorough and knowledgeable as possible about all aspects of a DUI, or any other kind of case I handle. Telling someone what they're going to be asked, and how any particular answer will affect the outcome of their case is better thought of as preparation as opposed to any kind of unfair advantage.

Many years ago, I began to examine and study these Alcohol Evaluation tests. Seeing how the results of any such test was almost always the single most important factor in determining what happened to my Client in a DUI case, I began to see that helping a Client avoid a higher score was a huge factor in producing a successful, or better outcome. This eventually led me to a far more comprehensive study of the whole concept of alcoholism, addiction, and recovery. To say this has been a nearly lifelong interest is an understatement.

Continue reading "Michigan DUI and the Required Alcohol Assessment Test - Part 1" »