Michigan Criminal Defense Lawyer Blog

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 4

2012-02-03T23:02:54Z

In Part 3 of this series, we undertook a very brief overview of DUI Trials. If the reader detected a theme something like "DUI Trials are very complicated," then I succeeded in delivering my message. The larger point was simply no one should go to Trial in a DUI case unless they have a rock-solid likelihood of winning, or at least emerging from it appreciably better off than if they had not.

After a DUI (meaning Criminal) Trial, a person is either found Guilty, or Not Guilty. Occasionally, a case results in a "hung jury," meaning no verdict was reached, and the Prosecutor must then decide if they want to re-try the case, meaning do it all over again. Hung juries, while not incredibly rare, are rather uncommon; therefore, we won't waste any of our time discussing that unlikely type of outcome.

Having started our discussion at the Arraignment stage in Part 1, through Pre-Trials in Part 2 and Trials in Part 3, we have ended up at the stage where a person facing a DUI (called the "Defendant") will have either pled Guilty to some kind of charge after a Pre-Trial, or have been found Guilty, or not, after a Trial.

The next "legal" step in any Drunk Driving (or other Criminal) case is the Sentencing. This is where the Judge decides what is going to happen to the Defendant, and Orders things like classes, counseling, breath or urine testing, Probation, and, in really bad cases, like 3rd Offense Felony DUI's, Jail.

Obviously, there will be no Sentencing if a person has been found "Not Guilty" after a Trial. In that case, a person simply goes home, and the matter is ended.

In EVERY DUI, however, where there has been a either Plea, Plea-Bargain, or Sentence-Bargain (or a Verdict of Guilt, if there was a Trial), there is a step BEFORE the actual Sentencing: The PSI, or Pre-Sentence Investigation. A PSI is required by Law. We'll explore it in detail shortly (this subject is rather involved, so we'll use two installments just to cover it), but before we do that, it is important to understand that the Pre-Sentence Investigation, and the legally required alcohol assessment test that is a part of it, will determine, more than anything else, what actually happens to a person at Sentencing. To put it simply, the PSI and its accompanying recommendation is the blueprint, or script, for what will happen to a person at Sentencing.

]]> Michigan Law requires that prior to Sentencing someone for a DUI, the Court MUST order that the person undergo an alcohol assessment test. The Test is then to be scored, and the Probation Officer (or, in the 72nd District Courts in Marine City and Port Huron, the Substance Abuse Evaluator) must make a written Recommendation to the Court advising the Judge what kind of Sentence should be imposed, focusing as much on counseling, rehabilitation, and breath and/or urine testing as anything else.

I have often observed that the importance of this step is pretty clear to anyone with a prior DUI. Whatever Sentence they received was UNDOUBTEDLY exactly, or almost exactly, what was recommended in their PSI.

Someone without any prior DUI experience cannot "instinctively" know this. However, once the process has been fully analyzed and explained, it should be clear that this step, more than anything else, is the key to avoiding as many of the potential negative consequences of a DUI as possible.

If a person does well at this stage, and the outcome, meaning the results, or what actually happens to them, will be much better and more lenient. By contrast, if a person doesn't do so well, they can expect to be making some new friends in whatever classes or counseling or rehab is Ordered, and getting to know the person who collects their breath and/or urine samples several times a week.

As I noted before, in EVERY single Court in the Tri-County area, the required PSI is completed by the Court's Probation Department. Just as the PSI itself is a step in the DUI process, there are several "steps" to the whole Pre-Sentence Investigation. While it may seem like a homespun oversimplification, in a very real way the whole PSI process can be called "the big 3." That's because there are really 3 facets to the whole process: Where you've come from, where you're at, and where you're going.

1. Where the person comes from. Were they raised in a good and supportive environment, or was their upbringing fraught with conflict. The real inquiry here is to see if they bring any "baggage" from their past into their present, be it unresolved emotional conflicts, or simply a family history of (and therefore a genetic risk factor for) alcohol, mental health or substance-abuse related problems. This, of course, raises questions about their problematic drinking (and remember, even if a person clearly does NOT have an alcohol problem, getting a DUI is, in and of itself, does at least look like some degree of problematic drinking). Are they escaping from the past? Are they self-medicating the pain caused by it? These are important questions that will be examined.

2. Where the person is "at." Someone can have had the most ideal upbringing in the world, but if their spouse just left them, they are being laid off from work, their home is either in, or going into foreclosure, the dog died, and they just found out that they have a serious medical condition, the "were they're at" aspect of their life is clearly NOT stable. Ironically, the very person whose hard luck story might prompt us to buy them a beer will be seen as having an unstable situation by Probation. And when Probation even thinks it sees a problem, they'll set out to fix it...

3. Where the person is going. This is really the whole point of the PSI. The Probation Department's very job is to assess a person, consider their background, their current living situation, the facts of their DUI, and then make a Recommendation to the Judge as to what he person should do, or not do, or learn, in order to prevent another DUI, and to otherwise stabilize their life.

Think about that for a moment; stabilize their life. That almost sounds a little too much like "big brother," doesn't it? And, in a sense, it is. Having any part of the government, including the Criminal Justice or the Court system involved in your life is intrusive. If the reader of this article happens to be out on Bond in a Court that, as a condition of that Bond, requires any kind of breath or urine testing, then you've already had your first taste of this intrusiveness. And if you're being required to test for alcohol as part of your Constitutional presumption of innocence, how much easier do you think will become once a Plea or Conviction is had? It won't!

The Plain fact is that it is a big part of my job, as the Lawyer for someone facing a DUI and who is not otherwise going to somehow "beat" the case, to keep the Court OUT of their life as much as possible. In that regard, getting "good" or "better" results can be calculated by how much I can help my Client avoid the negative consequences of a DUI, and how much I can keep the machinery of the Court, with its various classes and counseling and testing and Probation and all the other stuff it throws at someone, out of their life.

Now, Let's identify the "steps" of a PSI before we examine them:

Setting the Probation appointment
The background paperwork
The actual Probation interview
Taking the alcohol assessment test
Scoring of the alcohol assessment test by the Probation Officer
Completion of the Sentencing Recommendation by the Probation Officer
Reviewing and correcting the PSI and Recommendation
Commenting on the PSI and Recommendation to the Judge at Sentencing

Next, let's look at each, in turn:

1. Setting the Probation appointment.

This is usually done in the Court on the day (usually the day on which a Pre-Trial has been scheduled) a person pleads to some Drunk Driving Offense, or, if they go for broke, hold an actual Trial, and wind up being found guilty of some DUI-related charge. Depending on the Court, the person may be given a packet to fill out. This is always a biographical inquiry. A person will be asked about their childhood, education, employment history, and the history of their drug and alcohol experimentation and use. They will be instructed to complete the packet and bring it back with them on the day of their appointment. When they return for their appointment, they will not only be interviewed by a Probation Officer, they will also be handed the mandatory alcohol assessment questionnaire (test) to fill out.

In a few Courts (like the 37th District Court in Warren), the alcohol assessment test is attached to and part of the "packet" a person is given.

In other Courts, (notably the 47th District Court in Farmington Hills), instead of just making an appointment to return for an interview with a Probation Officer, a person will be handed the alcohol assessment test and asked to have a seat in the Probation Department waiting area and complete it, and then hand it back, at which time an appointment will be made for their return interview date.

Key in all of this is to make sure the Client has been properly prepared to answer the questions in that assessment test. This is why, in my Office, I will spend a good hour or hour and a half the first time I meet a new Client going over the test That first meeting typically lasts between two and two and a half hours. This way, if the Client winds up having to take it the very first time we go to Court, they will at least be adequately prepared.

2. The background paperwork.

The most important word here is "background." Any "packet" a person fill out will, first and foremost, be biographical in nature. More than anything else, this is the basis for the "where you've come from" aspect of the PSI process that we discussed earlier. A common mistake that I see Clients about to make is being all too ready to talk about some event in their past as at least a partial explanation of or justification for their current DUI situation. This can be something as simple as a "messy divorce" in their recent past. Often, the Client will try to explain their lapse of judgment in packing up the DUI for which I am representing them as just part of a run of hard luck. "This hasn't been a good year for me. I was divorced last year, and it was hard."

Whatever the person feels, going in and saying that to a Probation Officer is no different than saying. "I have some unresolved problems in my life and I have been unable to find neither a good solution to nor a good coping mechanism to deal with them. On the night I was arrested, I just felt overwhelmed and thought I'd drink the pain away. But honestly, I don't need any help. I will figure this out on my own somehow, even though my best idea so far has been to go out, get drunk, and then drive."

Obviously, that is NOT a good plan...

3. The actual Probation interview.

If a person has not been thoroughly prepared for this, it can be a minefield and a nightmare. On the other hand, with just a little work, a person CAN be adequately prepped for this meeting, and doing well, or at least NOT making any significant mistakes, can be rather easily achieved.

So what is the secret? Well, as much as I have tried to be forthright and honest to this point, then I trust the reader will understand that here, I must reply like the magician who is asked, "how did you do that?" Plus, of course, this is all part of that two to two and half hour first meeting I have with a new Client, and if it takes me that long to go over it in person, it would take forever for me to completely write it out. I like writing; that much should be obvious, but I don't like it that much...

Still, there are a few points worth noting.

First, we must remember who becomes a Probation Officer. And let me point out here that I am the first guy to bristle when anyone makes a derisive comment or observation about Lawyers. Still, I must admit that my Profession suffers from no shortage of jerks. That said, I know many fine Probation Officers, but can also point out that there is no shortage of jerks in their ranks, either. Many Probation Officers have backgrounds in Criminal Justice, and yet did not make it into either Law School or Law Enforcement. Thus, it is not terribly uncommon for a Probation Officer to be a Cop or Lawyer "wanna be" who didn't make it. And even if this describes a minority of Probation Officers, it is always safer to proceed as if they are a career-frustrated Cop "wanna be" rather than not. Better to be safe than sorry.

In their defense, however, ANYONE who sits in a Probation Officer's chair for any length of time will inevitably become a bit cynical. Their day-to-day experience involves being lied to almost constantly.

Thus, when First-time Freddy shows up for his Probation interview, he is quite likely to point out how horrible this whole experience has been, and how it has taught him a lesson and that he will never be back...

Yet the Probation Officer can raise his or her hand, stopping Freddy in mid-sentence, and tell him, in response, something like this: "See those file cabinets here in my office? I have 420 active Probationers right now. About one-third to maybe half of them, meaning about 140 to 220 of them have been on Probation before. Not to doubt you Freddy, and I certainly hope you're right, but you'll excuse me if I don't jump on the 'this will never happen again' bandwagon. The proof, as they say, is in the pudding."

Add to that the endless number of people on Probation who miss a test, or test positive for alcohol or drugs, or who otherwise violate a term or terms of their Probation during their time, and you can understand why Probation Officers tend to be, to put it nicely, rather skeptical. I always tell my Clients that "if you or I were made Probation Officers today, and we met a year from now to compare experiences, we would be saying things like 'do you know you can tell if they (meaning a person on Probation) is lying? See if their lips are moving.'"

Accordingly, part of what I will explain to my Clients and instruct them to do at the meeting is to NOT lose sight of the fact that the Probation Officer, no matter how cool or nice he or she might seem to be, is NOT their friend. The Probation Officer's job is to see how much they should get involved in the person's life, not how much they shouldn't.

In Part 5 of this article, we will pick up with the next step in the Pre-Sentence Investigation Process, the mandatory alcohol assessment test. From there, we will examine the other steps in the process, and then conclude with a look at the actual Sentencing.

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 3

2012-01-31T02:56:57Z

In Part 2 of this article, we examined DUI Pre-Trials, and we learned that, more than anything else, a Pre-Trial is a meeting where the Defense Lawyer and the Prosecutor discuss their case, and try to work out some kind of resolution (usually meaning a plea deal) in order to avoid having the case decided at a Trial.

In this 3rd installment, we'll discuss the components of a DUI Trial. The reader should note that the Library of any Lawyer who makes his or her living in Court usually contains numerous books about Trials, and Trial strategy. Since even the most abbreviated overview of Trials would result in a rather long book, our review will necessarily be rather brief. Accordingly, we will focus on the more important and relevant aspects of a DUI Trial.

To begin, it is fair to say that a DUI Trial occurs because the Prosecutor and the Defense Attorney are unable to agree upon a resolution. Beyond that rather "legal" description, it typically means that the Prosecutor has offered no kind of "deal," and the Defense Lawyer believes he or she can either beat the case at Trial, or at least get a better (always meaning less-serious, or severe) verdict than whatever plea offer (or not) is on the table.

In a Criminal Trial, a person's guilt must be proven "beyond a reasonable doubt." To put it plainly, at a Trial, the Prosecutor must essentially hit a home run.

If a Trial is held before a jury, then a "Guilty" verdict can only occur if ALL of the jurors (6 in a Misdemeanor case, and 12 in a Felony case) agree that the Defendant is guilty. If even 1 of the jurors does not agree, the jury is considered "hung" and the person will not be found guilty, although they may later be re-tried. If the jury, however, returns a unanimous verdict (meaning all 6 or 12 jurors agree) of either Guilty or Not Guilty, then that is the final decision.

Which brings us to as good a place as any to talk about the end result of a Trial. Everyone knows that a Criminal Trial (and a DUI case is a Criminal case) can result in a verdict of either "Guilty" or "Not Guilty." Yet there are other outcomes that can occur, and understanding them can have a huge impact on deciding whether or not to have a Trial in the first place. Let's explore this further...

]]> There is an often overlooked potential consequence in any Criminal Trial; the lesser-included Offense. This means that while a person may be able to avoid a conviction for the crime with which they are charged, they can still be convicted of another, less serious crime called a "lesser included Offense."

In DUI cases, this is always called "Impaired Driving." In a 1st Offense case, the difference between a straight-up OWI and the lesser charge of Impaired Driving is rather substantial, at least in terms of how they are treated. In a 2nd Offense case, the ONLY difference between the straight-up OWI and the Impaired Driving charge is 2 points on the Driver's Record, and a Driver's Responsibility Fee to the Secretary of State of $1000 for 2 years for the OWI that drops to $500 for 2 years for the Impaired Driving charge. Given that, in either case, the person's Driver's License will be Revoked for at least a year anyway, the only real difference is a grand total of $1000 saved in Secretary of State fees. That's it.

Now, given that it costs thousands of dollars to properly conduct even the simplest of DUI Trials, a person, for example, who chooses to go to Trial in a 2nd Offense DUI case, and who is NOT convicted of the original OWI charge, but is instead found guilty of the lesser charge of Impaired Driving, 2nd Offense, has just blown a few thousand extra dollars to save a thousand. In other words, it's a net loss!

The same thing holds true in a 3rd Offense (Felony) case. Except, of course, that a Felony Trial, held in the County's Circuit Court, will cost even more thousands of dollars.

This means, then, that going to Trial in any DUI case only makes sense if the end result is a "Not Guilty" verdict.

Lawyers have long called an acquittal on an OWI (and its predecessor, OUIL, or Operating Under the Influence of Liquor) and a conviction for the lesser-included Impaired Driving Offense the "dreaded compromise verdict." Under the current DUI Laws, such a result, at least for those who hire a Lawyer in a 2nd or 3rd Offense case, generally means, as noted above, a net loss.

It is against this backdrop that the whole idea of "going to Trial" must be considered.

There are 2 kinds, or types of Trials:

Jury Trials, meaning a Trial where a group of either 6 (in Misdemeanor cases) or 12 (in Felony cases) people decide if the Defendant is either "Guilty" or "Not Guilty," and

Bench Trials, meaning a Trial held in front of a Judge, with no Jury.

In terms of money, a Jury Trial costs a lot more because a jury must be "selected." When a Jury Trial is convened, both the Defense Lawyer and the Prosecutor have a certain amount of input into who gets seated on the jury. It is certainly not like 6 or 12 people are called in, and that's it. Jurors are "selected" from a "jury pool," which is a large group of potential jurors who are questioned by each side, and sometimes the Court, regarding their beliefs and experiences that might impact their ability to fairly and impartially decide a case. And of course, the reader has no doubt heard someone talk about "getting out of" jury duty. It's not like very many people are anxious to be picked to spend a day or two, or even longer, sitting on a jury in a Drunk Driving case.

The jury selection process can take quite a while. Most skilled Trial Lawyers will agree that this stage of a case is extraordinarily important, and requires monumental effort. In fact, this task can require so much time and effort that many expert services make a rather lucrative profit as "jury consultants." These "consultants" help a Lawyer readying for a Trial review the backgrounds and credentials of the members of the jury pool, and then further help the Lawyer in Court as he or she goes through the selection process. The selection process itself involves each prospective juror being asked questions (what they probably see as endless questions) by both the Defense Attorney and the Prosecutor. Each side has a certain number of "bumps" (technically called peremptory challenges) that allow them to simply excuse a person without the need to explain why.

In addition, either side can challenge an unlimited number of potential jurors "for cause," meaning they argue to the Judge that for some reason or other, a certain person is incapable of being properly attentive, fair or impartial (or some other reason sufficient to disqualify them) and should not be allowed on the jury. If the Judge agrees, the person is excused. If not, the person who argued for their dismissal probably DOES NOT have a sympathetic ear on the jury panel...

Jury selection can last days. Even at its quickest, and in the simplest of cases, the process will typically eat up the better part of at least a day. And guess who's paying for all that Lawyer time...?

The other kind of Trial, called a Bench Trial, proceeds without a jury. Instead, the Judge alone decides guilt or innocence. Bench Trials get underway rather quickly, as there is no jury to question.

That said, if a case turns upon the believability of a Police Officer, or the accuracy of his or her observations, for example, many would argue, and I am inclined to agree, that the odds of finding at least one juror out or 6 or 12 who would not just go along with that Officer's testimony are much better than just dumping one's fate in the hands of one person. In addition, some would argue that a Judge, because of his or her political position, might be inclined to go along with the Officer.

Whatever else, just playing the numbers game (6 or 12 versus just 1) tilts the odds significantly in favor of a Jury Trial.

It has been observed that when the facts of a case aren't as much at issue as the Law that applies, a Bench Trial may be the better choice. If the facts of a case are disputed, then a Jury Trial is generally preferred.

If this seems complicated, it is. Of all the things that Lawyers do, trying cases is about the most difficult and laborious of them all. There are numerous stages of a Trial:

Submission of Jury Instructions to the Court before Trial
Exchange of Witness Lists with the Prosecutor
Final Pre-Trial Motions
Identification and Disclosure and Marking of Exhibits to be used in Trial
Jury Selection
Opening Statements
Prosecutors Direct Examination of Prosecution witnesses
Defense Cross Examination of those witnesses
Re-Direct Examination
Re-Cross Examination
Defense Direct Examination of Defense witnesses
Prosecutor's Cross Examination of those witnesses
Re-Direct Examination
Re-Cross Examination
Closing Arguments
The Judge's Instructions to the Jury
Jury Deliberations
Jury's arrival at a Verdict
Reading of the Verdict, and finally,
A Sentencing, (if that Verdict was Guilty)

The list above is not complete or exhaustive. It does, however, provide a general idea of what is involved in just gearing up for a Trial.

In addition to all that, there are tons of often differing Trial strategies and all kinds of variables, often unpredictable, that enter into the mix. Very few Lawyers actually like conducting Trials. It's no wonder why.

And if there is an overriding point here, it's that a person should never go to Trial without a rock solid reason for doing so and that, in turn, had better be supported by a rock solid likelihood of being found "Not Guilty."

If the reader, for some reason, is interested in more detail about the Trial stage, beyond the links included in this installment, they can likely find enough reading material on the web to last a lifetime. As I noted before, the library of any Lawyer who spends a significant amount of time in Court (meaning my library, as well) is usually loaded with books about Jury Selection, Opening Statements and Arguments, Closing Statements, Cross and Direct Examination techniques and other aspects of Trial work.

Yet, for all of that, the UNDISPUTED FACT is that the vast majority of DUI cases are resolved before and without the need for a Trial.

In Part 4 of this series, we will look at what happens after a person enters a Plea, or is found Guilty after a Trial. While it might at first seem logical that the next step is a Sentencing, where the Judge decides what punishment and other consequences the DUI Driver will actually get, in fact the next step, more than anything else, determines what that punishment and those consequences will be. This step, called a "PSI," or Pre-Sentence Investigation, is required by Law, and includes the legally mandated alcohol assessment test. To understand this better, in the next installment, we will rewind a bit and look at how the Plea (or Verdict of Guilt) itself can influence this process, as well.

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 2

2012-01-28T00:21:02Z

In Part 1 of this article, we began our detailed review of the steps in a DUI case. We examined what happens when a person is released from Jail, and then we looked at the various facets of the Arraignment stage. We ended by noting that the next step in a DUI (or any Misdemeanor Criminal case, for that matter) is called the "Pre-Trial." In this second part, we'll talk about what the Pre-Trial really is, and we'll see what does (and sometimes doesn't) happen at this rather important stage of a DUI case. We'll end our discussion once we are ready to move on to the step after a Pre-Trial: an actual Trial.

This is important. Sometimes, a person facing a DUI (or any other Criminal case) thinks that their case must go to Trial. While we'll examine Trials more fully in the next section, a Trial is what happens if no Plea, or Plea-Bargain can be worked out at the Pre-Trial stage. In other words, Trials are pretty much limited to situations where a person maintains his or her innocence ("I didn't do that...") or the Lawyer feels that the person's guilt cannot be proven beyond a reasonable doubt for some reason or other.

The overwhelming majority of DUI cases are resolved through a Plea agreement, and that usually occurs as the result of a Pre-Trial Conference. In most cases, the Defense Lawyer and the Prosecutor come to an agreement called a Plea-Bargain. A Plea-Bargain means the charge the person is facing is reduced to something less serious. Typically, in a 1st Offense case, a person will be charged with OWI (Operating While Intoxicated) and their Lawyer will negotiate with the Prosecutor to reduce the charge to the less severe offense of Impaired Driving (OWVI). This assumes, of course, that there is no defect in the evidence that could lead to the case being "knocked out" or that could result in a "Not Guilty" verdict if the case actually went to Trial.

Sometimes, when the Defense Lawyer and the Prosecutor meet, they find that there is other information that might help them come to an agreement, or that maybe they are unable to come to an agreement right then and there, but at least feel that there is a reasonable chance they might find some common ground later on, if they meet again. In truth, there are loads of reasons why a Pre-Trial might just result in the scheduling of another Pre-Trial. In my Practice, this happens all the time.

The more important point is that most of the time, whether there is only 1 Pre-Trial, or there are 2 or 3, a DUI charge is resolved by agreement between the Defense Lawyer and the Prosecutor. In 1st Offense cases, as noted above, this "deal" is usually a "Plea-Bargain" tht reduces the original OWI charge to Impaired Driving. Of course, there can be no "deal" unless the person facing the charge also agrees. The Client always has the final say.

]]> In 2nd and 3rd Offense (Felony) cases, instead of a "Plea-Bargain," the Defense Lawyer and the Prosecutor will very often arrive at a "Sentence Agreement," which sets out exactly what kind of Sentence a person facing a DUI charge will receive.

In 2nd Offense cases, this agreement is focused on a "no Jail" outcome. That is to say, if there seems to be a likelihood, or even a possibility that a person might be locked up, then avoiding that, by agreement, rather than leaving it to chance, is job number 1.

Beyond that, limiting as many of the other consequences of a 2nd Offense DUI, by agreement, is always a good idea.

In 3rd Offense (Felony) cases, this "deal" amounts to 1 of 2 things:

In some jurisdictions, most notably Macomb County, it is often possible to negotiate to have a 3rd Offense (Felony) charge reduced to a 2nd Offense (Misdemeanor) charge. When that takes place, Jail is often completely avoided, right out of the gate.

In those situations where the Prosecutor cannot (because his or her boss, the County Prosecutor, has some "policy" that forbids it), or will not (because the person facing the charge has a terrible Record), agree to reduce a 3rd Offense (Felony) to a 2nd Offense (Misdemeanor), then negotiating a Sentence agreement is the first, and most important priority. If a 3rd Offense (Felony) case cannot be "beaten" somehow, and a Jail Sentence is coming, then limiting that as much as possible is of the highest priority.

and that brings me to another point. Everyone likes to hear that they can be kept out of Jail, and in all 1st Offense cases, and in many, if not most 2nd Offense cases that is fairly easy to do. This assumes, of course, that the case cannot be beaten or knocked out beforehand. However, as an honest Lawyer, I am, I believe, morally obligated to tell someone the truth, and not just sell them a bill of goods based upon what they want to hear. In other words, what someone needs to hear may be far less pleasant than what they want to hear, but what good is being anything less than completely honest?

In that sense, when a person is facing a 3rd Offense case, Jail is very real possibility, and in many cases, a surety. It's true that in Macomb County, Jail can often be completely avoided. However, in other Counties, a person facing a 3rd Offense (Felony) that is not going to be "knocked out" somehow needs to be prepared for reality. This means Jail.

Instead, however, far too many people are willing to part with their hard-earned money and hire some slick Lawyer who makes it sound like he or she can wave a magic wand and make the whole situation go away. Yet if that were the case, then why do so many celebrities and rich and famous people NOT have their DUI's simply tossed out of Court? With their kind of money, they can "Lawyer up" all they want.

The moral of the story is, and always has been, that if it sounds too good to be true, then it is. Still, there seems to be an endless supply of people willing to buy into what they want to hear....

In plenty of other articles, I have pointed out how much tougher Oakland County is in DUI (and ALL Criminal cases, for that matter) than either Macomb or Wayne County. This is no secret. Chances are, the reader has already heard this any number of times. This is why, particularly in 3rd Offense (Felony) cases brought in Oakland County, working out a Sentence-Bargain with the Prosecutor is so important.

Of course, in any case, finding a way to beat the case is always the best option.

And this brings us full-circle, right back to the subject of Pre-Trials. While there is a certain amount of "posturing" that takes place when the Defense Lawyer and the Prosecutor first meet, soon enough, they will rather candidly be discussing the strengths AND weaknesses of the case. You can be sure that the Prosecutor will NOT be pointing out any of those weaknesses to the Defense Attorney. It is up to the Defense Lawyer to find those weak points of a case. These things are found only by thorough and proper investigation. Let's look at an example:

Assume Second-time Sandra is Arrested for a 2nd Offense DUI in a Detroit-area City. When she comes to my Office, and I'm interviewing her, I ask about the Field Sobriety Tests. She tells me she didn't do any. Then, I ask what she blew into the portable (called Preliminary Breath Test, or PBT) in the back of the Police car. She doesn't recall. Next, I ask what she blew at the Police Station, and Sandra assures me she never took a breath test at the Station. I then ask to see her Michigan Temporary Driving Permit and other documents to see if she was the subject of an Officer's Report of Refusal to Submit to Chemical Test (breathalyzer refusal). As it turns out, she was not. I then ask if she was given a blood test, and she advises me that she was just brought in to the Police Station, printed and photographed, and left in a cell for a few hours, until she was released.

There is no breath or blood evidence of Sandra's alleged intoxication.

Most likely, the Prosecutor will at first act as if they've got a decent case. To put it another way, it is highly unlikely that when the Defense Lawyer meets with the Prosecutor, the Prosecutor will promptly announce that his or her case is compromised and flawed. Imagine the Prosecutor saying to me, "Hi Jeff, nice to see you. You're here on Second-time Sandra? Oh boy, is my evidence in that case ever weak. I guess I should just agree to dismiss the DUI right now, eh?"

Instead, the Defense Lawyer (meaning me, in the example above) will have to point out and remind the Prosecutor of the various evidentiary defects.

It is at this point where a Pre-Trial can lead to a Trial. As I noted before, there are endless reasons why a Pre-Trial might be adjourned, re-scheduled, or reset. There can be 1, 2, 3, or even more Pre-Trials. But if those meetings between the Prosecutor and the Defense Lawyer don't produce a resolution, meaning an agreement to resolve the case in some way, then the matter must and will thereafter be decided at Trial.

Thus, Pre-Trials are meetings between the Defense Lawyer and the Prosecutor in which they discuss the issues, strengths and weaknesses of the case, with the goal of coming to an agreement to resolve (meaning a plea deal of some kind) the case without the need for a full-blown Trial.

In part 3 of this article, we will take a look at what happens at a Trial. Our examination may help the reader understand why a Trial is almost always a last resort to resolve a Criminal case.

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 1

2012-01-23T18:29:08Z

It has been quite some time since I've gone over the steps involved in a DUI case. This article will examine every part of the process following a person's release from Jail as their case winds through the Judicial system. Because I intend to cover this subject in detail, and use some examples along the way, this article will be broken into multiple installments. This first installment will focus primarily on getting out of Jail after a DUI Arrest, and will examine the Arraignment stage, which occurs right before, or, in other cases, right after a person's release.

As a DUI Lawyer, part of my everyday experience involves handling DUI cases. I've handled so many that I can navigate my way through the process blindfolded, so to speak. Yet even as a Drunk Driving Lawyer who has handled thousands of DWI and related cases, I need to remember that for most people, a DUI Arrest is their first experience being taken to Jail, and having to deal with a Criminal charge.

Even for those facing a 2nd Offense DUI, such a charge is often only their second time dealing with the Criminal Justice system, and they were often too nervous the first time to recall everything that occurred, beyond remembering that things weren't as bad as they feared. Now, facing a 2nd Offense, they know things are more serious.

Accordingly, we'll do a step-by-step breakdown of what a person facing a real-life DUI, whether a 1st or 2nd Offense, will be dealing with once they have been released from Jai.

To keep things clear, we'll insert 2 imaginary characters into this article, and sometimes refer to them: First-time Freddy, and Second-time Sandra. For the most part, the steps in each of their cases will be the same, but where either those procedural steps, or what they're likely to experience differs, we'll compare and contrast those differences.

One of the first things that can be different from case to case, and depends, more than anything else, on where a case occurs, is how a person gets out of Jail. In some jurisdictions, once a person's BAC (Bodily Alcohol Content) is low enough, they'll be released from Jail without having to pay a dime. In other jurisdictions, they might have to post a $100 Bond, called an "Interim Bond." In some places, they might be held until a higher amount is posted. This might mean calling someone to come and post the money.

In still other jurisdictions, before a person is released, they are actually "Arraigned" on the charge. This means they go before a Judge or Magistrate.

]]> An "Arraingment" is the first step in a Criminal case, and is an actual Legal proceeding where a person is formally charged with a Crime, and a Bond amount is set. At an Arraignment, the first thing that happens is that a person is told exactly what crime they're being charged with.

They are then advised of their Constitutional Rights.

Most often, they are given a form, called an "Advice of Rights," and told to read it, then to sign it. This form, as the reader can see by clicking the link in the previous sentence, details all of a person's rights when facing a Misdemeanor charge. All DUI's, unless charged as a 3rd (Felony) Offense or a DUI causing serious injury or death, are Misdemeanors. There are 3 types of OWI (Operating While Intoxicated, the actual and correct name for a DUI in Michigan) charges not involving accidents, child endangerment, injuries, or death:

OWI 1st Offense

OWI -Enhanced, or High BAC (this charge can only apply to a 1st Offense), and

OWI 2nd Offense

There are 2 kinds of Arraignment:

The first is where a person is actually brought into a Courtroom and faces a Judge or Magistrate.

The other is where a person is put before a video camera at the County Jail or the Police Station, and faces the Judge or Magistrate via closed-circuit TV.

In some, albeit a minority of cases, and often those where the Arraignment is done by video, the person is simply read, or told what their Constitutional Rights are. Typically, the Judge or Magistrate will say something like this:

Mr. First-time Freddy, you are charged with the Offense of Operating While Intoxicated. This is a Misdemeanor punishable by up to 93 days in Jail, a Fine of up to $500 plus Costs, 6 Points on your Driving record, Driver Responsibility Fees imposed by the Secretary of State, and a Suspension of your Driver's License that will also be imposed by the Secretary of State.

You have certain Constitutional Rights:

You are presumed to be innocent.

You have the right to a Trial, and to have that Trial held before a Jury, or, if the Parties and the Court agree, you can have that Trial held before a Judge, without a Jury.

You cannot be found Guilty unless your Guilt is proven beyond a Reasonable Doubt.

You have the right to a Lawyer, and if you cannot afford one, the Court will appoint one for you.

You may be required to repay the Court for that Attorney.

You have the right to remain silent.

If you have a Trial, no one can say anything about your exercise of the right to remain silent, and they cannot make any comment or draw any inference therefrom.

On the other hand, you have the right to testify on your own behalf.

You also have the right to use the Court's Subpoena power to compel any witnesses that you may have to come to Court and testify on your behalf.

If you plead Guilty, you waive all the rights above, except the right to a Lawyer, and there will be no Trial of any kind.

If you are on Probation or Parole, any conviction that results from a Plea or Trial may constitute a Violation of that Probation or Parole.

You have the right to be released on Bond.

How do you Plead?

To which, by the way, Freddie should respond, "Not Guilty."

The good news is that in almost all 1st or 2nd Offense cases where a person is released from Jail without having been Arraigned, they can skip, or waive any future Arraignment (meaning they will NOT have to go Court and face a Judge or Magistrate) if they hire a Lawyer BEFORE that date. "That date" will either be indicated on their Bond Receipt, Citation (Ticket) or will be subsequently sent by mail.

To be clear then, if First-time Freddy comes to see me, and tells me he had to post either $100 or even $500 at the Police Station, or Jail, and hasn't yet had a Court date, I can file papers with the Court waiving his Arraignment and have a "Not Guilty" Plea entered on his behalf. This way, the won't have to go to Court until the next step, called the "Pre-Trial," to which I come along, as well.

A Pre-Trial is a very important step in the DUI process. Before we get into any detailed examination of the Pre-Trial, it will be helpful to understand that although the Pre-Trial is a "step" or stage in the DUI process, it is one that can be repeated more than once. Let's use a comparative example:

Once an Arraignment has taken place (and independent of whether there was actually an appearance before a Judge or Magistrate, or the Arraignment was waived), it's over, just like a birthday.

By contrast,, there can be multiple Pre-Trials. Technically speaking, a Pre-Trial is called a "Pre-Trial Conference," because, in a Criminal case (and all DUI cases are Criminal cases), it means that the Prosecutor and the Defense Lawyer meet (i.e., the "conference") and talk about how they can resolve, or work the case out, without it having to go to Trial.

In Part 2 of this article, we'll continue by examining exactly what a "Pre-Trial" is, and the importance of its role in a DUI case.

Free Michigan Criminal and DUI Case Consultation, and all KInds of Other Free Stuff, too!

2012-01-21T02:52:27Z

To the unwitting consumer, the word "free" suggests, as it's supposed to, "something for nothing." Yet it is a basic high-school concept, often overlooked by those thinking they're about to get some kind of "deal," or even "freebie," that "there is no such thing as a free lunch."

In the Legal world, this most often arises when Lawyers offer a "free consultation." While the consultation is, of course, "free," anyone getting it needs to remember that there is no such thing as a "free lunch."

This article will draw back the curtain on the ever-present use of that marketing tool by so many Lawyers. And if the reader is thinking I'm going to describe myself as a shining exception to that....you're right!

In the interest of fairness, I should point out that I have and will always offer a "free consultation" of sorts. By "of sorts," I specifically mean that I will do a consultation by phone, but do not make Office appointments and drag someone in on the pretense that I want to use a precious time slot just to answer their questions. Think about it for a moment; how does it advance any Lawyer's interest to line up people for "free" Office visits with no expectation of actually being hired? Where is the money going to come from to keep that Office open and pay the staff? It is, instead, the opportunity to turn that "free consultation" into a paid retainer that's really going on, not some kind hearted, altruistic opportunity to provide a cozy environment just to answer someone's questions with no hope or chance of eventually being hired, and paid.

The fact is, a "free consultation," whether it's my free phone consultation or anyone else's free Office consultation, is an opportunity to meet a potential new Client (meaning paying customer). Certainly, no Lawyer intends a free consultation to be time spent with someone who has no intention of hiring them. I'll be honest about that here; the last thing I have time to do is use up an appointment slot to answer questions and explain stuff to someone looking just for free Legal advice. Yet any number of people will admit and say, right up front, that they have another Lawyer and just want t know if he or she is on the right track, or they have no money and can't afford a Lawyer, or give some other indication that they have no ability or intention to become a Client. How many of those do you think I can carry and still pay my bills? I wonder, would these same people call up a plastic surgeon, make an appointment for a "free consultation," and go in, only to explain that they're not interested in any of the services the surgeon provides, but rather want to know what he or she thinks is the best product they an buy over-the-counter to eliminate the lines around theie eyes, or reduce the appearance of wrinkles?

Thus, the "free consultation," at least to the Lawyer, means an opportunity to interact with someone who needs and is interested in hiring an Attorney. So what, you ask, is my beef with this tactic?

]]> I have always tried to be honest, and within my various blog articles, I have been candid to the point of being "brutally honest." Therefore, it should come as no surprise that part of my motivation in writing this article is that it seems like my honesty, as is so many times the case, actually costs me money. Remember the old saying, "If you can't beat 'em, join 'em?" I'm thinking that maybe I should....

Read on...

Many years ago, when I was much younger and living at home with my parents, I remember advertisements of all kinds offering free estimates, free inspections, and free trials. I also remember, on various occasions, the details of which I have long forgotten, urging my dad to check something out, and telling him how there was a "free" something-or-other deal. The thing that sticks with me the most is how my dad reacted. He dismissed those offers out of hand, telling me that those were nothing more than ploys for what he called "high pressure sales tactics."

My dad said that you could drive a brand new car off the dealership lot, drive straight to any place that offered a free inspection, and they'd find something that needs to be fixed.

Years later, and AS A JOKE, I called a number for the "Select Comfort Mattress" to get their "free, no obligation video," which I passed on to a friend as a gag birthday present. In order to get the video, I had to leave my phone number and address.

They hounded me like bill collectors for months afterwards.... Apparently, "no obligation" had nothing to do with "relentless pursuit."

I also recall one time when I was "talking shop" with another Lawyer at some function or other. The subject of "conversions" came up. For those unfamiliar with the term, a conversion is when a potential customer (or Client) becomes an actual customer 9or Client). It applies in any potential "sign up" or "purchase" situation, from walking into ABC Warehouse and walking out with a TV, to going into a Cosmetic Surgeons Office for a "free consultation" and then signing up for some procedure or other, to going to a gym for a "free trial," and leaving as a paid member, right up to, and including, going to some Lawyer's Office for a "free consultation, only to leave as retainer-paid Client. When this Lawyer began asking me about my procedure, and I told him I did my consultations over the phone, he was shocked, and promptly advised me to start bringing people in ASAP and get them into the "Client Chair."

The "Client Chair," at least in a Criminal case, is the place where a person coming in for a "free consultation" gets seated, hears about all the potential doom and gloom and penalties (including Jail and/or Prison) and fines and costs and other negative consequences that can befall them, and then learns how the Lawyer on the other side of the table can spare them much of that.

It all starts when the Client sits down, and the Lawyer asks, in a manner that seems rather innocent enough, "let me get a little information. What is your name? Your address? Are you married? Where do you work? How long have you been there (I love this one, if it's asked...) What's you rate of pay? (i.e., how much can you afford?) When did this happen? Where? What happened?

Then, the potential Client asks his or her questions, and the Lawyer answers them, hoping that they walk out having signed a Retainer Agreement.

As you can see the "relationship" is being developed, and the potential Client is being made rather comfortable in that "Client chair."

From the Lawyer's perspective, this is best accomplished by being the first in line. In other words, if this is your tactic, then you want to get the person in as soon as possible, before they see any other Lawyer, who will also try for a "conversion" from "consultation" to Retainer. Chances are, if the first Lawyer is any good, then the second Lawyer will either have a no-show potential Client, or perhaps will perhaps, at least, get the courtesy of a call cancelling the appointment.

This really is just a variation of the battle for shelf space in the supermarket. In the Potato Chip aisle, for example, the manufacturers actually pay the retailers for better placement. Eye level is considered the best. Down at the bottom is the least desirable. That's because most shoppers automatically look at eye level, and usually, once they have put a product in their buggy, they move on to the next thing they need. Thus, if Better Made Potato Chips was given a choice, in supermarket X, of having their products at eye level, or on the bottom row, which do you think they'd pick?

The same holds true for all sorts of things. If you leave a sporting event where there are souvenirs sold outside of the venue, the prime spots are those closest to the facility. The farther away from the facility the kiosk, or stand is located, the less likely someone is to buy. First, or closest, is best.

Yet I refuse to do this.

Honestly, I feel that it's beneath me to have to pander myself in such a manner. There is little doubt I'd make more money if I were to simply bring everyone in for a free in-Office consultation, use a few high-pressure or scare tactics, and make myself out to be the person who can rescue the Client from all they face. And it would be better still if I could get them in first, before they sat down with any other Lawyer.

But I'm better than that, and truth be told, I want a Client who is smarter than that. If the real reason I am hired is only because I'm so aggressive by bringing them right in, then that means I'm not being selected for my ability, experience, knowledge, personality or skill, as much as the fact that I simply know how to "close the deal" and convert a call into a paid Retainer before the potential Client talks to anyone else.

That's not me.

Instead, I want a Client who has the fortitude and intelligence to do their homework. I want to be selected. Personally, I'd NEVER go into anyone's Office, for anything, until I was satisfied that the person might be a good fit for what I need. I need to have some questions answered first.

In my case, I'll answer any and all questions a person has right over the phone. You don't need to make an appointment and miss work to ask your questions, and have me explain things. And why should you?

Unless, of course, the real goal is to get you into the "Client chair."

I think a mistake many people make is thinking that they're too smart to just sign up with the first person they see. I know, for a fact, that as bright as I think I am, I am exactly the kind of person who might do just that. After all, I'll wind up telling myself, I've taken my valuable time, and then taken another person's valuable time, and they seem nice enough, and competent enough, so why waste any more time....

Thus, when it involves me needing to hire someone for something, I want to find out, first by phone, a little about the person. You can tell a lot in a very short period of time if you ask the right questions...

Like, "exactly how many of these cases have you done before? What has happened in them? Have you been in front of this Judge? Do you know the Prosecutor?" Realistically, what are the best-case and worst-case scenarios? Exactly how much is this going to cost?"

I will gladly spend as much time with a person as it takes to explain things and answer their questions, but I like doing that by phone, which is much more convenient, anyway. Besides,doing a consultation by phone, at least from the point of view of the caller, means there is a decided absence of high-pressure tactics, like the proverbial "Client Chair." And whether done by phone, or in the Office, the same confidentiality rules apply to anything that's discussed: It's private, and covered by Attorney-Client Privilege. That "Privilege" legally applies to conversations even just for the purpose of consulting with a Lawyer for the purpose of deciding who to hire.

And what about Fees? I list mine right on this blog, and on my site. I guess I'm just different, but I would NEVER, in a MILLION YEARS, go see someone who wouldn't tell me in advance EXACTLY how much something is going to cost. I can tell, in 5 minutes or less, exactly how much a case is going to cost, and when I quote a Fee, that Fee is put in writing. At that point, it's set in stone; there are never any "extras."

Yet time and time again, I hear of Lawyers being evasive about this until the person comes in and provides some information. Talk about red flags.....

Not to be mean about it, but the more of this I see, the more I realize P.T. Barnum was right when he said, "There's a sucker born every minute." Barnum is also generally credited for the line "Never give a sucker an even break," which became the title of the 1941 W.C Fields movie.

I guess living by the motto "Treat others as you wish to be treated" is at odds with those rather profitable philosophies, but it is the credo by which I live, and by which I do business, and by which I hope that I am, in fact, treated by others.

The moral of this story, I suppose, is just that I do my consultations by phone, and that I am skeptical of those who don't.

So, while I may not have quite "joined 'em," do remember, for any Criminal case (including DUI) arising in Macomb, Oakland or Wayne County, I offer a 100% COMPLETELY FREE PHONE CONSULTATION.

I hope you pick up the phone and call. And if you do, I promise to be honest, even if that means telling you what you need to hear, rather than just what you want to hear.

Aggravated Indecent Exposure in MIchigan is NOT a Misdemeanor

2012-01-16T21:01:14Z

It's been a while since I last wrote about Indecent Exposure charges, and in that time I have noticed that there has been a significant change, or shift, in how these cases are brought, and exactly what Offense is being charged. Recently, I've dealt with several cases where my Client has, somewhat mistakenly, thought they were facing a simple Misdemeanor charge.

An astute reader will, at this point, ask, "what do you mean, somewhat mistakenly? Either your Client is right, or he's mistaken."

I have chosen my words carefully. I mean somewhat mistakenly. Read on...

Until a few years ago, the only "Indecent Exposure" crime that existed in Michigan was simple Indecent Exposure, which is a Misdemeanor punishable by up to a year in Jail, but no more than that. And to be clear, in practice, Jail in any Indecent Exposure case can be completely avoided if things are handled properly. In fact, as a Lawyer who rather routinely handles Indecent Exposure cases in the Metro-Detroit area, I am usually able to entirely keep the whole charge off of my Client's Record, meaning the whole incident just "goes away," much less keep the Client from getting locked up.

Then, several years back, the Legislature amended the Law, and added a new charge called "Aggravated Indecent Exposure." This new addition to the Law upped the penalties in cases where, beyond just exposing himself or herself, a person was seen fondling his or her private parts.

At first, even in those cases where there was fondling, many, if not most Police agencies just reverted to bringing the charge as regular old "Indecent Exposure."

More recently, however, the tables have turned, and I see more and more cases being brought as "Aggravated Indecent Exposure." In fact, it has been a while since I've seen a garden-variety simple Indecent Exposure. Instead, almost all the cases I've handled in the last several months have been "Aggravated Indecent Exposure" charges, which are Felony Offenses.

]]> That's right, despite the language used in the Law itself, Aggravated Indecent Exposure is a Felony. This is true even though the written Law describes it as "a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both."

It's not just that the Law is wrong; a little explanation will help demonstrate how and why our Legislators in Lansing made an error in the drafting of the Law. Unfortunately, this error is not the kind that would in any way invalidate the Law, or be of any help to anyone facing a violation of it.

It used to be the case that there was a kind of "hybrid" Law in Michigan called a "High Court Misdemeanor." A High Court Misdemeanor was technically called a "Misdemeanor," although it was treated as a Felony, and was procedurally identical to a Felony.

Sometimes, Lawyers and Judges and Prosecutors rather correctly referred to this class of Offense as a "2-year Felony."

It gets better. When Laws were written as "High Court Misdemeanors" ("High Court" meaning that they went from the local District Court to the County's Circuit Court for final resolution), they provided for a maximum penalty of 2 years in the County Jail.

Except that a person cannot stay in Jail for more than 1 year. In Michigan, a Jail Sentence, meaning that a person is sent to the County Jail, CANNOT exceed 1 year. On the flip side, a Prison Sentence, meaning that a person serves his or her time in a State Prison, must be for a minimum of 1 year, and can go up to life.

Thus, no one could be Sentenced to Jail for a year and a half, or two years. The County Sheriff would have to tell the Judge that the person could not stay for anymore than 1 year. After day 365, they had to be released. And this doesn't even include the required calculation for good behavior, or what's often called "good time."

Yet our Legislature failed to simply fix things by changing what used to be "High Court Misdemeanors" to "Felonies." That would have solved everything. And it wouldn't have changed anything, either, inasmuch as that, in EVERY respect, except the actual written Law itself, a High Court Misdemeanors is considered a Felony. Most importantly, these charges are put on a person's Criminal Record as a FELONY. Usually, the conversation with a prospective employer, or even a current employer, in which the person attempts to explain what I've just covered, doesn't go to well. After all, the employer has seen the Record, and it says "Felony." "You can call it what you like," they say, "you can even call it green eggs and ham, but that Record speaks for itself."

Instead, the Legislature simply changed the "2 years in Jail" language to 2 years "imprisonment." That now means that a person convicted of Aggravated Indecent Exposure can, in fact, be sent to the State Prison for up to 2 years. At least that part of things was fixed.

The reader should not panic. While a person technically faces up to two years in prison,as I noted earlier, with proper handling, any and all incarceration can be avoided. Technically speaking a communications satellite can drift out of orbit, fall from the sky, and land on your head, too, but that's not likely to happen, either...

In addition, the term 'High Court Misdemeanor" has been dropped. Now, most 2 year Crimes are just called, rather incorrectly, "Misdemeanors."

Yet this does nothing to stop the flow of Clients who come into my Office thinking that they're facing a Misdemeanor charge, only to find out that they are, to use our phrase from above, "somewhat mistaken," and that they are really facing a Felony, instead.

In the real world, there are very significant differences between how a Misdemeanor winds through the Court system and how a Felony proceeds.

A Misdemeanor will have the following steps in the Court system:

Arraignment (which often can be waived)

Pre-Trial

Trial (if the case is not resolved first), and

Sentencing (which, in Misdemeanor cases, can occur on the day a resolution is had after a Pre-Trial or Trial).

A Felony will have the following steps

Arraignment (Cannot be waived in Felony cases, and, therefore, cannot be waived in Aggravated Indecent Exposure Cases)

Preliminary Examination (held in the District Court to determine if the case is strong enough to be transferred "up" to the County Circuit Court)

Pre-Trial (in Aggravated Indecent Exposure cases, this will ONLY occur in the Circuit Court)

Sentencing (In Aggravated Indecent Exposure cases, this MUST occur on a separate date, after a PSI, or "Pre-Sentence Investigation has been conducted by the Circuit Court Probation Department, and its recommendation forwarded to the Circuit Judge).

This highlights the importance of either being lucky enough to only face the simple Misdemeanor charge of Indecent Exposure, or having the Defense Lawyer get the charge reduced from Felony Aggravated Indecent Exposure to simple Misdemeanor Indecent Exposure.

Yet there's good new in all of this.

In EVERY Aggravated Indecent Exposure case I've handled, I have been able to have the charge reduced to the actual Misdemeanor Offense of simple Indecent Exposure. In most of these cases, I have been able to work things out so that my Client, if he (so far, and not surprisingly, it has only been men that have faced this new charge) stays out of trouble for a year, will have the whole thing dismissed. This, of course, means no Record.

There's more good news, as well. Given my success a having these cases reduced to Misdemeanors, I will accept my Felony Retainer ($2000), and, if I can have the case reduced to a Misdemeanor at the District Court, meaning it is not transferred up to the County Circuit Court (and this is most likely to happen in Macomb County), then the remainder of the Fee (the other $2000) does not have to be paid.

Money is important, of course, but the most important part of handling these cases is, quite frankly, making sure the Client doesn't get "hammered," and is treated leniently, as well as minimizing the charge, if not keeping it off their Record altogether.

I have noted in other articles that there is, admittedly, a certain perceived "yuck" factor about these cases. This should not come as a shock. For example, it is not uncommon for a caller to my Office to be a bit reticent, at first, to give many details to Ann, my Senior Assistant. Often, after a few minutes on the phone, they realize that Ann has, quite literally, heard it all, and they relax enough to at least give her some details (like where and when the Offense allegedly occurred) so that I can return the call with some idea of what I'm dealing with. From my perspective, these cases happen, and they happen often. I suppose it's like anything else, you see enough of something and it just become routine. For me, it's routine. The reader probably couldn't believe the things I've heard...

In most cases, my Clients are ashamed and embarrassed beyond words. Whether the charge is the result of some poorly planned "alone time," or the person just felt so overwrought by the circumstances of life that they acted out in a way uncharacteristic of them, the point is, it happens. If you call my Office, there's no need to be ashamed, embarrassed or self-conscious. I'm here to help.

Thus, anyone facing a charge of "Aggravated Indecent Exposure" is NOT facing a Misdemeanor, despite what the written law mistakenly says, and is, instead, facing a real-life Felony. Even so, much can be done to make that better, and maybe even make the whole regrettable incident go away entirely.

Drunk Driving (DUI) Charges in Michigan Resulting From a Cell Phone Tip

2012-01-13T18:44:03Z

As a DUI Lawyer, I see almost every scenario that ends with a Drunk Driving Arrest. These scenarios include a Driver being rather simply pulled over for weaving in and out of his or her lane, to a person being found passed out behind the wheel of a running car after having crashed into something. I've even had cases where people have been Arrested after having parked their car and gone into a home or other building (these kinds of cases often present wonderful opportunities to successfully challenge the case, or evidence that is a part of it, and get the charge "knocked out").

A situation that has become far more common over the last several years starts with a cell phone call from an anonymous "tipster" alerting the Police to a suspected Drunken Driver. This article will focus on this increasingly more common situation, and will examine the evidentiary and legal requirements that must exist for such a case to proceed through the legal system, and how these things actually play out in the real world. For all the legal complexity the reader might suspect is involved, this can actually be boiled down to a rather simple and straightforward analysis.

It all begins with a tip called in by another driver. Whether that driver is an overly-zealous "do-gooder," or a decent citizen honestly concerned for the safety of others really doesn't matter. What matters is that a description of a vehicle (meaning some identifying information such as make, model, color, and/or the plate number) is given, along with enough geographic information for a Police Officer to locate it.

Legally speaking, the Police can't just pull up to the identified vehicle and pull it over. By law, the Police have to observe the driver either do something that would otherwise justify a Drunk Driving stop, or otherwise violate some traffic Law that, in and of itself, would justify a Traffic Stop. In other words, the Police need a valid reason to pull over the driver of the car that was reported, and can't just pull it over because Joe Citizen suspects the driver of being drunk.

In real life, this typically isn't a problem. Consider for a moment: how many suspected Drunk Drivers have you, the reader, ever called in? Most likely, the answer is none. Usually, it takes a pretty obvious case for Joe Citizen to dial 911. Police Officers are trained to spot Drunk Driver's; citizens are not. By the time a person is weaving or otherwise driving erratically enough for someone to call in a "tip," they are often rather clearly intoxicated.

In such a case, the Police usually don't have to wait very long for the reported Driver to give them a reason to activate the overhead lights.

]]> Yet a number concerns spring to mind. How often do the Police receive such a tip, find the suspect vehicle, and get behind it, only to have the Driver not give any indication that his or her driving is impaired? Have the Police become complacent with the notion that most tips are good, and most reported Drunk Drivers are, in fact, drunk? How often does someone who is mad at someone else call in such a tip? Does it seem beyond the scope of possibility that an angry "ex" might make such a call out of spite?

Let's consider, for a moment, that Officer Bob has been dispatched on lots of Drunken Driver tips, and that every one of them, or close to every one of them, have panned out.

Is it conceivable that Officer Bob may, on some run, just locate the suspect vehicle, and then pull it over, figuring the odds are pretty good that the Driver is drunk?

I'm not attributing any such motive to any Police Officer, but it is my job, as a DUI Lawyer, to investigate every angle of such a case (and each and every case, whether called in by a tipster, or just the result of a garden-variety Traffic Stop). Who wouldn't want to find a way to have the charge dismissed? Is there Police Car video? If so, then I want to see it.

One thing that the reader can count on, just as much as death or taxes, is that each and every Police Report will detail the Officer's observations of the Arrested Driver doing something that legitimizes the Traffic Stop. To put it another way, the reader can be sure that the Police Report will NOT give, as the sole reason for pulling the Driver over, that the Officer believed it was the vehicle described in the cell-phone tip. The Police know that they need an independently observed reason for stopping the person who is the subject of a tip, and you can be sure that the Police Report will state such a reason.

So, if there's dash-cam video, we look at it. Even if the driver turns out to be over the limit, and even well over the limit, if the Police Report details how the driver was unable to keep in his or her lane, having weaved onto the shoulder and having crossed the center line, then the video should back that up.

What happens if it doesn't?

And, to take things a step further, isn't it entirely possible that someone who may have turned out to be over the limit (i.e., had a few too many) might not really know for sure if they did or didn't weave? It isn't hard to imagine a person NOT having any independent recollection of weaving, but, after having been Arrested, and given a Breathalyzer test at the Police Station that they learn was over the legal limit, doesn't feel like he or she has any solid reason to challenge of disagree with the Officer's allegations, beyond just not remembering weaving. After all, someone else called them in as a Drunk Driver, the Police claim they drove like a Drunk Driver, and then they took a Breath Test that they think kind of proves they were Driving Drunk, and now they're charged with a DUI... "Who's to say, maybe I was weaving?" the think.

This is where a DUI Lawyer has to put things under the microscope. Let's go back to the example above for a moment. Say Don the Driver was pulled over after an anonymous cell-phone tip. The Police Officer, in his Report, indicates he located Don based upon the description of the vehicle and its reported direction, and that as he positioned himself behind it, Don weaved onto the shoulder of the road 2 times, and crossed over the center line once. Fast-forwarding a bit, Don was Arrested, taken back to the Station, and given a Breathalyzer test, on which he blew a .16 two times.

Seems, at first glance, like an open and shut case, right? And it is, if no one bothers to look any deeper.

Let's now assume that Larry the Lawyer gets involved. Being a DUI Lawyer, one of the first things Larry does is take an account of all the evidence, and when he discovers that there is Police in-car video, he gets a copy.

Once Larry reviews the video, he sees that the Police Officer, upon identifying Don's vehicle, sped up and immediately activated his overhead lights, and that Don promptly pulled over.

Where is the independent observation of Don doing something that justifies his being stopped?

There isn't any!

More important, this defect in the evidence would have never been discovered had Larry the Lawyer simply accepted the Police Report as accurate, and NOT done a thorough investigation. This is often the critical and unfortunate difference, when hiring a Lawyer, between getting good work, or getting a good price.

Beyond the requirement that the Police independently observe a vehicle identified in a called-in tip actually do something that justifies a Traffic Stop, the whole rest of the case must be legally sound, as well.

In the course of evaluating a Drunk Driving case, I will, as a DUI Lawyer, want to carefully examine all the facts of everything that took place. I will be, of course, interested in the actual Stop, but I want to know all the details about everything that followed, as well. What was said when the Officer approached the car? Were there Field Sobriety Tests administered? Are they on the Police car video? What was the result of the Breath Test given in the back of the Police car (called a PBT, or Preliminary Breath Test)? How long after that test did the Client take the Breath Test at the Station? What were the results (meaning BAC, or Bodily Alcohol Content) of each of those Breathalyzer Tests?

These are just a few of the many critical questions that must be asked and answered as I look over a case. For a DUI Lawyer, these questions are instinctively asked and answered as part of the evaluation of a case.

And this does raise another issue. A Lawyer who doesn't really specialize in DUI cases may not be as aware of these things. Lots of Lawyer claim to "do" DUI cases. "Doing" them is not the same thing as doing them well. Certainly, because some Lawyer's Practice includes things like Divorce cases and Auto Accidents and Dog bites and whatnot, he or she won't have that same "instinct" in evaluating a DUI case. I've NEVER done a Divorce, or an Auto Accident case, nor have I ever written a Will, and, to be honest, I'm the last guy I would hire to do such a thing.

In my case, the name of my website, Macombduidefense.com. rather clearly marks out my area of Practice. Guess what kind of cases I most often handle?

And for what it's worth, those "Low Bidder" or "Cut Rate" Lawyers who claim to "do" DUI cases at a discounted price can't really afford to put the same time and effort into a case as a regular DUI Lawyer will.

The point is that every DUI case needs to be examined carefully. DUI charges that are the result of an anonymous cell phone tip bring a few additional elements to the party, and those, too, must be critically scrutinized with all due care. Just because someone says something doesn't make it true.....

DUI in Metro Detroit - The Real Differences Between a 1st Offense and 2nd Offense Case

2012-01-10T03:28:00Z

Within my DUI Practice, the majority of Clients I have are first-timers. I suspect it's the same for any DUI Lawyer. This only makes sense because the majority of DUI cases pending in any District Court at any given time are 1st Offense cases. Nevertheless, a rather large percent of my DUI Clients are facing their 2nd Offense. I suspect this is the case because, having already been through this once before, they are able to identify with the information I have provided on my website, especially that dealing specifically with 2nd Offenses, and find my various Drunk Driving blog articles to be spot-on in terms of the accuracy of the information presented.

One of the more common questions I am asked deals with the difference between a 1st and 2nd Offense DUI in terms of outcome, or what happens to the person facing the charge. This article will focus on those differences from the perspective of someone who has a prior DUI and is facing a 2nd Offense. Despite that focus, those facing their 1st Offense may want to read this article, as well.

It doesn't take a rocket scientist to figure out that a 2nd Offense DUI is going to be a lot tougher than a 1st Offense. Many Courts, especially those in Macomb and much of Wayne Counties, are understanding enough to at least consider the possibility that a 1st Offense DUI can be an out-of-character incident for someone, and not necessarily the manifestation of an alcohol problem. In other words, it can be just an instance of bad judgment. Oakland County Courts are generally more inclined to be cautious in their approach to a 1st time DUI Offender, and will seldom be as lenient as either their Macomb or Wayne County counterparts. For all of that, with the exception of 1 Judge in the 48th District Court in Bloomfield Hills, a 1st Offender can essentially count on NOT going to Jail. The kind of "leniency" we're talking about here has to do with things like classes, community service and counseling, and NOT incarceration.

There are really two ways in which a 2nd Offense differs from a 1st Offense. As noted before, the one about which I am most frequently asked has to do with what will actually happen to the person facing the charge, and, more than anything else, the most important of those concerns is "am I going to Jail?" Beyond that, the legal consequences, such as things like loss of the Driver's License, Fines, Costs, Community Service and Counseling or Treatment are very different, meaning more serious, or severe, in a 2nd Offense case.

One constant that is an inherent part of each and every 2nd Offense case is the belief and perception by just about everyone in the criminal justice system that the person facing the charge has an alcohol problem. Over 21 years ago, when I was a new Lawyer, I was often too concerned about offending my Clients to be as direct and forward as I am now. Tempered by over 21 years of experience, I have long since realized it's my job, and my obligation to help my Client, and an important part of that is to prepare them for what is really going to happen, and how they are really going to be viewed and treated by the Court system.

]]> In that regard, no matter how unpalatable the notion may be, a person needs to understand that when they're facing a 2nd Offense DUI, the whole legal system, meaning the Police, the Court, the Judge, the Probation Officer and everyone else involved in the case will assume and presume they have an alcohol problem. For all the explanations and excuses a person can offer, everyone in the system hears those excuses as just noise, like Charlie Brown's teacher, whose trombone voice never formed a single word, but instead just went "wah wah wah wah wah!" In other words, the most convincing and detailed explanation about how and why a 2nd Offense Arrest happened, and how and why the person facing the charge doesn't really have an alcohol problem will, at best, just go in one ear and out the other. At worst, it can test the patience of those who matter (think: the Judge and the Probation Officer) and only serve to tick them off.

On top of that, ALL 2nd Offense DUI's fall under what are called the "habitual offender" laws. These Laws REQUIRE that a person convicted of (or who pleads guilty to) any kind of 2nd Offense DUI to undergo mandatory counseling. And that's not marriage counseling, either; it's alcohol counseling. The Law presumes that a 2nd Offender has an alcohol problem.

Perhaps the most significant consequence of a 2nd Offense DUI is the License Sanction. Specifically, it is that a 2nd Offense DUI results in the complete and total loss (called a Revocation) of the Driver's License for AT LEAST 1 year. After the minimum 1 year Revocation has passed, the person can file for a Driver's License Restoration Appeal with the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). Part of that Appeal requires that the person prove, by what is called "clear and convincing evidence," that his or her alcohol problem is under control, and is likely case, presumes the person has a problem.

This creates a real conflict for someone who stumbles into this situation proclaiming that they DO NOT have a drinking problem, and offering excuses and explanations for how their 2nd Offense is different from that of anybody else. To be blunt about it, almost every Judge out there (and certainly every one that I know), independent of any of the facts of any given case, will conclude, solely on the basis that a person is facing a 2nd Offense DUI, that they have an alcohol problem. And for those who think otherwise, believe me, arguing with the Judge is a sure-fire way to make things go from bad to worse. Never, in my 21-plus years of being a Practicing Lawyer, have I ever seen anyone successfully argue with a Judge.

Of course, this makes finding a way to beat a 2nd Offense charge the first priority in the scheme of things. Every bit of evidence needs to be examined under the microscope, and it needs to be looked at from every angle. It is incumbent upon the Lawyer to make sure every bit of evidence in a 2nd Offense charge has been carefully scrutinized, and that no stone has been left unturned in the quest to find a way to beat the charge, or challenge any evidence that could be strategically advantageous to exclude, and can weaken the Prosecutor's case.

In a perfect world, or at least a DUI Lawyer's perfect world, there would be problems in every DUI case significant enough to mount a successful challenge, and the charges would collapse like a house of cards. As the reader might imagine, in a Prosecutor's perfect world, there would never be any basis for a successful legal challenge to any DUI case, and none would ever get "knocked out."

In real life, however, those defects in the evidence and the basis to successfully challenge, as opposed to simply challenge a DUI are the exception, and not the rule.

At the outset of this article, I noted that what might even be described as a disproportionately large part of my DUI practice involves 2nd Offense cases. Often, I sit across my conference table from someone who shelled out too much money for legal Fees in their 1st case, having been bamboozled by the "this is a list of all the things that could be wrong in a DUI case...hire us and we'll challenge everything" bill of goods. Feeling like they've been taken to the cleaners in their first case, and understandably a bit skeptical of Lawyers in general, these Clients begin searching for real advice and a realistic assessment of their DUI charge. They specifically want to avoid getting "soaked." It seems that's where I come in.

I suppose I could really jack up my income by painting a rosy, albeit unrealistic picture about DUI cases. If there is one thing I have always sought to avoid, however, (and have avoided, thankfully) it is an understandably angry Client who would turn to me, when things didn't turn out the way they were made to appear, and say "but you told me...!"

Sometimes being honest means being the bearer of bad news. Often, it means telling the Client what they need to hear, rather than what they want to hear. It seems rather certain that being honest means you'll make less money than you otherwise would if you simply told people what they want to hear.

In that regard, being honest and being truthful means being rather up-front about the fact, and it is statistically verifiable fact, that most DUI charges can't be made to just "go away."

Accordingly, in the real world, most DUI charges, whether brought as a 1st Offense or 2nd Offense case, are not going to be dismissed or "knocked out" on some technicality. It's kind of like the odds at a casino; they favor the house. No matter how smart a person thinks they are, in the long run, the house makes the money, and the gambler doesn't.

So does this mean that a 2nd Offense DUI is twice as bad as a 1st Offense?

This is probably everybody's favorite "Lawyer" answer; "it depends."

It depends on, first and foremost, where the case is brought. Pretty much everyone knows that Oakland County is the toughest County in which to face a Criminal case, including a DUI. Macomb is probably the best, with Wayne County not that far behind.

Beyond that, it is important to factor in a person's BAC, or Bodily Alcohol Content, as shown in either their Breathalyzer test results, or the results of any blood test taken. The lower that "score," the better.

Very often, a person's BAC score will be higher in their 2nd Offense case than it was in their 1st. This is usually taken as proof that they're drinking more, and their tolerance is increasing. In those cases where the opposite result is found, and particularly if the BAC in the 2nd Offense case is, is not considered "high" (usually meaning .17 or above), that can and should be used in the person's favor by the Defense Lawyer.

There are certain things that will ALWAYS happen and other that will just NEVER happen in a 2nd Offense case:

A person will ALWAYS be placed on Probation
A person will ALWAYS be sent to some kind of Counseling or Classes

A person will ALWAYS be breath and/or urine tested regularly

A person will NEVER receive Non-Reporting Probation

A person will NEVER just get "Fines and Costs"

A person will NEVER meet a Judge who thinks they don't have a drinking problem

In some cases, depending on where a person's 1st Offense took place and where the 2nd Offense case is brought, the 2nd Offense case can be more than twice as bad. As an example, a person who had their 1st Offense in the New Baltimore District Court might have escaped simply by paying Fines and Costs, and not having been Ordered to complete any Probation. If that same person picks up a 2nd Offense case in the Rochester Hills District Court, they're going to feel that the outcome of that 2nd Offense case was far more than twice as bad as their 1st.

However, someone who had their 1st Offense case in the Bloomfield Hills District Court, and who thereafter gets a 2nd Offense in the Shelby Township District Court, will feel that they were treated much more leniently in Shelby, despite the fact that it was their 2nd Offense. In other words, they'll feel that the 1st Offense resulted in much harsher treatment than did the 2nd Offense. This, of course, represents an unusual turn of events. Normally, things only get tougher the second time around.

For those readers facing a 2nd Offense, at least understanding the realities of the situation can help. Anyone facing a 1st Offense should heed the implicit warning of this article; it only gets worse, so do not let it happen again.

In the final analysis, a person facing any DUI should do their homework. Read what any Lawyers in whom you might have an interest in representing you have written. Call their Office. Ask questions.

By all means, avoid the "cut-rate" or low-bidder Law Offices. If they don't have enough confidence in their skills to warrant a respectable Fee, and instead offer a bargain-basement price, it's not likely that the Judges and Prosecutors will be very impressed with them, either. That, however, does not mean a person should go broke hiring some smoothie who makes things sound too good to be true, citing example after example of what could be wrong with a DUI case (we could cite example after example of what could cause a jet to crash... and if you start buying into that, you'll never fly again) and charging a King's ransom to tell someone what they want to hear.

In the end, finding the right Lawyer takes time and effort. Beyond all the skill and experience any given Lawyer may have, there has to be a "fit" with the Client. If there's no "chemistry," so to speak, then effective and honest communication will be difficult, if not impossible.

A 2nd Offense DUI is serious business, but it does not have to be the end of the world.

Why a "Sober Lifestyle" is Important in a Michigan Driver's License Restoration Appeal

2012-01-07T00:15:21Z

Part of what "inspires" me to write any given article on this blog is often that a particular subject has come up in my dealings with Clients and/or those who call my Office. Recently, the subject of a "sober lifestyle" has come up in several contexts, and, given its importance and relevance to a License Appeal, I thought we might put this issue on the table for a closer examination.

The whole concept of a "sober lifestyle" is more or less an inherent and necessary, if not overlooked, component of Recovery and Sobriety, much like electricity is a necessary element of watching TV. It's there, but we don't spend much time thinking about it.

However, the State, particularly the Hearing Officers of the Secretary of State's Driver Assessment and Appeal Division (DAAD), do think about it. They look for it in any License Appeal that they decide.

In other License Restoration articles, I have examined the finer points of the issues involved in a License Appeal. Here, we can simply and summarily point out that the two main issues being evaluated by those Hearing Officers are whether the person filing the License Appeal can prove, by Clear and Convincing Evidence, that:

Their alcohol problem is under control, and, (more importantly), that

Their alcohol problem is LIKELY to remain under control.

As I noted above, the whole notion of a "sober lifestyle" is, more often than not, just an inherent part of a person's Sobriety. Once a person has maintained Sobriety for any length of time, the whole "sober lifestyle" thing becomes second nature, like brushing your teeth in the morning before you leave for the day. However, that "sober lifestyle" is also one of the strongest predictors of a person's likelihood to remain alcohol-free, or to use the State's terminology, that the person's alcohol problem "is likely to remain under control."

For the reader who has undergone the transformation from drinker to non-drinker, let's rewind a bit, to right before your last drink. On that score, the majority, although not all of those who get Sober, fix their last drink as the date of their last DUI Arrest. It really doesn't matter when it was; just think back to a few weeks before you "put the plug in the jug," to use a familiar phrase.

]]> You probably hung with a particular group of friends. And you probably hung out at any number of particular places. In addition, most drinkers usually tend to buy their alcohol at the same place, or couple of places. There is a certain routine. Even for those "closet drinkers" who imbibed privately, often at home, there was, in most cases, a certain predictable regularity to their drinking behavior.

This also applies to those who could be described as "binge drinkers." Even though a person's drinking may have been sporadic, there still was that same element of predictability to it, often that having been the risk of bad things happening once they started. It is often said by and of these people that "I didn't necessarily get into trouble every time I drank, but every time I got into trouble, I had been drinking."

Now, turn to the first day after a person decides to quit drinking. Most people, as I noted, make this commitment after having been Arrested for their last DUI, whether that last DUI was their 2nd, or 3rd, or 5th, or 13th. Soon enough, "bar night" rolls around, or some friends call to go out, and the person finally steps up and says "no." Even those who may have not yet committed to remaining alcohol-free for life will respond to their "friends" that they need to lay low, or take a break for a bit.

And then a curious thing happens. Those "friends" disappear. They vanish. It's like ties have been instantly and permanently cut with them. It's cold, instant, and permanent. In most cases, they never see their "drinking buddies" again.

Other things start to happen, as well. Maybe the person used to stop off at ABC party store after work on Fridays and by their beer, or liquor, or whatever. Now, when Friday rolls around, the person plans on getting a bag of chips and a diet Mountain Dew, or whatever, instead of their usual alcoholic beverage.

Almost instinctively, the person avoids ABC party store. They almost automatically go elsewhere. They simply don't want to walk into the store and have Sam, the guy behind the counter, ask something like "you want your vodka tonight?" or "how come you don't get your Budweiser today?" The person just knows that part of getting cleaned up is replacing old habits with new habits.

Many people find their way to AA, at least for a while. Whether through AA or other Counseling, they learn the importance of avoiding "wet places and wet faces." Whatever path they follow, they first begin to focus on NOT doing what they had been doing before. Again, it is a matter of replacing old habits with new habits.

At first, this takes work. Changing any routine requires effort. As a lady I once knew said to me, early in her transformation from drinker to non-drinker, "do I miss my old friend (meaning her drink of choice)? Of course I do, but I know we had to sever our relationship."

Often, the thought of an upcoming weekend is almost frightening to a person who has decided to give up drinking. What will they do? They imagine themselves sitting on the couch, bored, and cut off from the familiar world. Will they be able to get through without cracking?

However it happens, it happens. They make it through the weekend. They find things to do.

Other changes take place, as well. The person will make sure that there isn't any alcohol kept in their home. Partners, roommates and/or spouses don't drink around the person in Recovery, if at all. Many of these "significant others" give up drinking altogether in order to help and support the other person's Sobriety. And each successive weekend becomes progressively easier.

Then, at some point, without ever realizing it, those "new" habits become old habits. The person has successfully filled in the "empty" spaces created by not drinking with other things. And those things have now become routine. NOT drinking becomes as second nature as breathing. It just happens.

And it is at that point, when an alcohol-free lifestyle becomes second nature, that a person can be truly seen as having established a "sober lifestyle."

Very often, people in Recovery will take to things like exercising, or getting outdoors, or becoming involved in some activity, as part of the recovery process. They'll find, or re-discover some hobby or interest to occupy their time.

The DAAD knows that such a change and/or transformation is an inherent part of getting and maintaining Sobriety. That's why they look for it in every License Appeal. Whether such changes are dramatic and exciting, or more subdued and subtle, they are always present as a person becomes Sober.

Part of my job, as the Lawyer for the person in a Driver's License Restoration Appeal is to help put that transformation into words. Establishing a "sober lifestyle" is a story. My job is to help write that story.

In the end, the State isn't so concerned about all the details of that story as much as it is concerned that there IS a story there. As we noted, some people make significant changes, and take up exciting new activities. Others just kind of plod through things, but nevertheless establish a lifestyle and routine that is grounded in being and remaining alcohol-free. Whatever the details, in any case where a person has gone from being a drinker of whatever frequency to a committed non-drinker, there will always be the verifiable hallmarks of a "sober lifestyle."

Having established a "sober lifestyle," and then maintaining it is seen as both a necessary and VERY strong indicator of the likelihood that a person will remain alcohol-free. And given the proofs that need to be made in order to win a License Appeal (and remember, the person must prove their case by "Clear and Convincing Evidence), particularly that the person's "alcohol problem is likely to remain under control," this critical component cannot be overlooked. Instead, it must be clearly and properly presented in order to insure the person does, in fact, get back on the road again.

Michigan Driver's License Holds - Unable to Renew a License From Another State

2011-12-30T21:13:22Z

About half of my Driver's License Restoration Clients reside out-of-state. These people can be divided into 2 categories:

Those who left Michigan with a Revoked License due to multiple DUI's, and who have been unable to obtain a License outside of Michigan, and

Those who were able to obtain an out-of-state License but are then unable to renew it due to a subsequently discovered Michigan "hold" on their Driving Record.

The majority of people fall into the first category: those who are unable, right out the gate, to obtain an out-of-state License. This article will focus on that smaller group in the second category: those who were first able to obtain, but were thereafter unable to renew, an out-of-state License.

When someone who has left Michigan, and thereafter obtained a License in a different state contacts me, they often express a sense of frustration, as if there has been some mistake. After all, they had a License in their new state, and they haven't had any Arrests or problems. How can this be? Is there some mistake? Isn't' there something that can quickly be done so that they can renew?

Usually, the source of their difficulty is what's called the National Driving Register. While the details and nuances of it's operation are rather involved, and go beyond the scope of this article, what matters is that it exists, and means a person who has obtained a License in another state, and who has had their driving privileges Revoked in Michigan, will, at some point, be unable to renew that License until they clear Michigan's "hold" on their driving Record. This is like a big, comprehensive national driving Record. To be clear, most people will simply be unable to obtain a License in another state because Michigan's Revocation (seen by that other state as a "hold") will show up right away. Yet in any number of cases, it does not, for some reason, and only catches up with the person later, when they go to renew their out-of-state License.

In terms of how it works, the inability to renew an out-of-state License requires the same "Clearance" that must be obtained before the usual, Revoked because-of-multiple-DUI's driver can obtain a License anywhere. Except for the fact that an out-of-state resident will seek the ability to obtain a License in a state other than Michigan, whereas a Michigan resident will seek Restoration of his or her Michigan Driver's License, the proof required to win such an Appeal is identical.

]]> To put it another way, a person who still lives in Michigan will go to the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) to have their Michigan License Restored. A former resident will go to the DAAD seeking a "Clearance." They both have to prove the same things.

Michigan residents seeking a Restoration of their Driver's License will have to go through a full-blown License Appeal, including an actual License Appeal Hearing conducted before a DAAD Hearing Officer. These Hearing Officers are licensed Attorneys who are technically classified as "Administrative Law Examiners."

Those out of state can, and SHOULD do the same thing, but they also have the option of skipping the Hearing and doing an abbreviated Appeal called an Administrative Review. The problem, and it's a big one, is that the VAST MAJORITY of Administrative Reviews lose. In fact, in the year 2010, the DAAD received 875 Administrative Reviews, and it DENIED 650 of them! That's a 75% LOSING RATE! That's just freaking incredible!

By contrast, in the year 2010 (a somewhat subdued year for my License Restoration practice), I filed and won over 70 License Appeals. I won every case I filed, giving me a 100% win rate. Beyond that, I have a guarantee that I'll win. A rather good chunk of those wins were for out-of-state Clients. I did that in each and every case by going in for a live, in-person Hearing. I have all my cases set for a live Hearing in the Livonia Office of the DAAD. There are 5 Hearing Officers there, and I know each one rather well, having appeared in front of them countless times over the years.

As I have pointed out in other articles, I DO NOT believe in video Hearings. To put it bluntly, I think they suck.

A few months ago, a Secretary of State Branch Office "Super Center" about 4 minutes from my Office opened a video terminal that would allow me to sit in a room with my Client and conduct a License Appeal Hearing with the Livonia Hearing Officers by closed-circuit TV, which, in this case is like a crappy web cam, circa 1998.

II do not and will not do that. Instead, I will happily make the hour drive to Livonia in order to Appear in-person. A live Hearing is superior to a video Hearing in every respect.

Over the years, I have been asked too many times to count by those who live out-of-state to help them do an Administrative Review. I've been offered my full Fee ($3000) to do it.

But I will not. I'm in this to win, and Administrative Reviews simply present a 3 out of 4 chance of losing. Why would anyone take such odds?

By the same token, I'm the last guy who would try and talk someone out of trying it. If you're so inclined, then go for it! Chances are (like 3 out of 4) that you'll call me the next year, when you decide to do it right. That may sound somewhat harsh, but I'd rather deal with someone who has no doubt abut how to proceed rather than waste my time trying to convince them of that.

Of course, the principal problem after an Administrative Review is lost is that whatever errors caused that first, statistically-doomed Appeal to lose in the first place will have to be corrected, or fixed, in order to win the next time around. Sometimes, those errors can be substantial, although, in truth, most that I encounter are rather easy, for me at least, to remedy.

Often, those people who have obtained a License in another state mistakenly assume that the DAAD will look favorably upon that. "I've been driving for 'X number' of years, " they'll say, "and I haven't had any trouble. No tickets or DUI's or anything."

This misses a very important point. A pretty fair percent of those who pick up a 3rd or subsequent DUI do so without a valid License. Not having a License hasn't stopped many people from driving drunk.

Instead, the DAAD tends to look rather unfavorably upon someone who obtained a License in another state, especially if they got that License BEFORE the minimum period of any Michigan Revocation has elapsed. In other words, if the state pulls someone's License for a minimum of either 1 or 5 years, and before that respective time period has passed, the person was Licensed in another state, the DAAD will feel that the person basically skated out of their mandatory minimum legal punishment. Filing an Appeal in Michigan as soon as another state's DMV refuses to renew a License because of a Michigan hold, and where the person DID NOT go without a License for at least the minimum period of a Michigan Revocation, is not a good plan. The state is generally NOT inclined to waive, or bend its rules for someone it sees as having snuck under the radar, so to speak.

In those cases where a person has obtained an out-of-state License AFTER at least their mandatory minimum Michigan Revocation period has gone by, the DAAD, while not necessarily giving them "credit" for having driven without incident while the out-of-state License was valid, will at least NOT hold that against them.

This means that having obtained an out-of-state License before becoming unable to renew it because of a Michigan "hold" doesn't provide any advantage. At best, it can be a non-issue. At worst, it can work against the person filing the License Appeal.

For all of this, and whether a person files an Administrative Review, or comes back to Michigan for a full-blown License Appeal Hearing (the better route, in my opinion, AND statistically speaking), they still face the same legal issues. In order to win any License Appeal, a person must satisfy what is know as Rule 13, which provides that:

The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:
(i) That the petitioner's alcohol or substance abuse problems, if any, are under control and likely to remain under control.

(ii) That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.

(iii) That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk.

(iv) That the petitioner has the ability and motivation to drive safely and within the law.

(v) Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.

As I have pointed out in many of my other articles in the Driver's License Restoration section of this blog, the real meaning of Rule 13 can more or less be boiled down to this:

A person filing a License Appeal will be Denied unless they prove, by Clear and Convincing Evidence, that:
Their alcohol problem is under control, and

Their alcohol problem is likely to remain under control.

This, in turn, can fairly be simplified, or translated even further to mean that:

They haven't had a drink since "X" date (at LEAST 12 months before any Appeal is filed), and
They are a safe bet to remain abstinent and sober, meaning alcohol-free, for the rest of their life.

It's hard enough to prove this with the correct documentation and proper preparation for a live Hearing. Proving this on paper is even harder. That's why 3 out of 4 Administrative Reviews were Denied in 2010. Nor is it likely that, once the numbers are released, 2011 will prove to be much different than 2010. The Denial rate for Administrative Reviews always hovers around 75%.

What is important is that anyone considering a License Appeal of any kind understands the process, and understands that the complexity lays not so much in the difficulty of that process, but the amount of detail involved.

In the end, with patience, and perseverance, a person can get back on the road, even if the Michigan "hold" means that they will be unable to outright renew a License previously issued in another state. As the saying goes, it is what it is. The question that remains is, what are you going to do about it?

Welcome Back.... Now get to Work!

2011-12-23T21:32:35Z

In my last blog post, I took a detour and wrote about my recent medical experience. Thanks to the wonders of modern medicine, my Office remains up and running, and I am essentially "back in the saddle" again.

Normally, I take the last 2 weeks of the year off, anyway. This really amounts to little more than me thinking I'm on some kind of vacation while I work from home. I take and return calls as needed, reschedule Court dates until after vacation...

Some things never change...

I will be returning to the Office, right after the New Year, as I had planned before I got sidelined almost 2 weeks ago. I never imagined how much I could miss being busy with work, but I really do.

I have noted in a recent, previous article how I truly enjoy handling License Restoration cases. It also seems that an important part of my self-identity has also become the guy who shows up in Court on DUI and other matters and makes things better. I once heard it said that a major part of a person's identity is what they do for a living. Whether it was my Dad (when he was "Joe the Mailman") or my Uncle Tom, the Truck Driver, or my Mom, the Secretary, or even Lisa the Therapist, or Tim the Carpenter, society first identifies us by what we do. And whatever you do, when you are on hold from doing it, you feel, in a way, like your own self-identity is also in a state of suspended animation.

So beyond keeping things up and running, there is a tremendous emotional and psychological boost to getting back in the saddle; you feel like your old self again.

My Office is currently setting early to mid-January appointments in Driver's License Restoration cases (I've been booked into the first week of January since about mid-December), and making appointments as needed for any other Criminal matters. I still want to squeak some kind of vacation out of this last week and a half...

Accordingly, if you have a problem and are looking to hire a Lawyer, I'm here, as always. You can either contact my Office, or drop me an email in the contact box on the right side of this page.

Oh, and before I forget....

Happy Holidays!

The Real Meaning of Life

2011-12-19T19:33:55Z

This article will be a major deviation from anything else on my blog. On Thursday, December 8, 2011 (yes, I do publish ahead), my heart was stopped during major, emergency open- heart surgery, occasioned by a torn aorta (technically called a "dissected aorta"), most likely the result of very heavy duty weightlifting, my favorite sport and hobby, or at least formerly so. My body was taken down to about 35 to 40 degrees; all my blood was removed and stored separately while a cold saline solution was circulated through my system to keep it at that near-freezing temperature. During those several hours, all brain activity had ceased as the surgeons worked on my heart. I was, quite literally, dead, for a time. Rushed to the Hospital and facing imminent death, I had no alternative but to undergo to this procedure. The scariest part of the whole deal was that there was about a 10% chance that I would be unable to be revived. In other words, I would simply remain dead. While the odds for my survival were, statistically speaking, favorable, I was wheeled into pre-op knowing that I might never again see anyone whom I loved. I might never see my 14-year old daughter again. I might never see my wife again, either. 10% seems like a pretty high number when it applies to your life.

I was terrified.

I cried, and I begged God to let me come back. This article will not be a religious piece in any way, beyond my observing that I am convinced that my faith in God is, was, and will be important in my recovery. Others in my situation may have a very different belief system, or even no belief system to speak of, and our post surgical experiences would nevertheless be the same. This is not about how or why I came back, but rather about what to do with what can only be described as a true "second chance."

In all likelihood, this is not the article the reader came here for. Please read this one, anyway. The License Restoration and DUI stuff can be found in the "Topics" Section on the right. It's not going anywhere.

Imagine, for a moment, those people whose death would affect the most profound loss in your life.

Next, imagine that you were called and told by a distant hospital to expect the death of one of them imminently. Too soon, in fact, for you get anywhere close enough to see them and say goodbye. You are, instead, informed that you will be called shortly, once they have passed. You are told to stand by the phone.

In due course your phone rings, and you pick up to hear the dreaded news...

]]> To your surprise, the caller announces an unexpected miracle; your loved one has survived, despite the apparent surety of their death, and should recover.

What would that make you think about second chances? Would you just shrug it off as good luck, and fall back into the routine of life, or would you reevaluate how much you loved that person and how you were going to appreciate every minute you could thereafter have with them?

I've been a rather busy man the last several years, and I hope to return to that state of affairs soon enough. I have been so caught up in work, and the general business of life, that I've taken too little time to stop, and smell the flowers, so to speak. More accurately, I think, would be that I've taken far too little time to appreciate what matters most; my family. Of all the things that raced through my head, as I was about to be put under for what might be the ultimate, big sleep, NOT being able to fulfill my role as a dad and a husband, and leaving my family without my contribution, was the most frightening of them all. Sure, I have a pretty good life insurance package, but how could mere money play the role of "dad" and stand up as a disciplinarian, meaning the guy who says "no," and "I don't care what anybody else does," when such things were called for? How could money look at and figure out how to diagnose and fix a "guy" or "husband" problem in the house, like a leaky faucet, or replace an electrical switch?

This is not about a lifestyle change, but rather an attitude adjustment.

In my case, I really have been given a second chance. I intend to use every bit of it to enjoy thing that matters most to me; my family. It's not that my schedule is ultimately going to change much, if at all. It's that I am going to be grateful everyday for the time to see and hear and touch them. This makes any little squabbles that we might have had in he past seem insignificant. And they now seem insignificant because they are, in fact, insignificant. What were the arguments that, at times, kept my wife and I apart, or at least kindled a simmering resentment that kept us from feeling that same passionate love we had before we were married? And even if it was not resentment, then certainly at least the unsurpassed ability to take the other person for granted.

Honestly, right now, I can't name them. They seem insignificant because they are insignificant. They always were. It's just that my perspective has changed. I got an attitude adjustment.

Now, those things my kid does that used to annoy me are part of the beautiful noise of life.

I'm glad to be here. Heck, all things considered, I'm glad to be anywhere...

Meanwhile, how does someone like me begin to thank all those whose love and support have meant so much? I simply cannot. Family, friends, Clients...I've even had calls from people who I am surprised could put my name to my face.

The sheer size of this blog proves that I am never at a loss for words. Here, however, words fail me. They fall pitifully short of being able to convey the depth of gratitude that I feel.

Thank you all, so very much.

My greatest hope, however, is that the reader will heed the real message of this article; everyday is another chance. You don't have to go through what I've gone through to learn that. Go home and tell your children, parents, partner, siblings and/or spouse that you love them, and that you're glad they are part of your life.

DUI Legal Fees in Macomb, Oakland and Wayne Counties

2011-12-16T21:48:37Z

"How much do you charge for a DUI?" This is a question that I'm asked almost daily. In truth, I find it somewhat funny, because I list my Fees on my site and my blog under the section at the top marked "Fees." Look up at the top of this page. See it? It's there.

This article will examine Fees in a DUI case, and why some are so low, while others are so high, and what a person can expect to get for their money.

For what it's worth, I only handle charges brought in Macomb, Oakland and Wayne Counties, and I charge the following for DUI cases:

1st Offense: $2000. I begin with ½ ($1000) down, and the other ½ ($1000) must be paid prior to the conclusion of the case.
2nd Offense: $2400. I begin with ½ ($1200) down, and the other ½ ($1200) must be paid prior to the conclusion of the case.

3rd (Felony) Offense: $4000. I begin with ½ ($2000) down, and the other ½ ($2000) must be paid prior to the conclusion of the case.

No one wants to pay too much, or anymore than they have to, for anything. It's no different for Legal Fees. My Fees are more than what some Lawyers charge, and less than others. Yet there are still really two competing bookends to this scenario. Many people are absolute "bargain hunters," intent on finding the lowest price on anything, regardless of quality, while others cannot help thinking that the more you pay for something, the better it must be. Most often, however, the very best "deal" lies in the middle.

I have repeated this theme throughout many of my blog articles: Looking for a Lawyer on a "low-bidder" basis is about the worst way to find quality representation. There is simply no way to not cut corners when offering a discount price. We'll come back to this later.

]]> On the opposite side of the coin, paying a King's ransom for a Legal Fee all too often means getting "soaked." Anyone can request every document under the sun from the Prosecutor and work the daylights out of a file, but whether or not that is necessary, or even advisable, is another thing altogether.

As an example, imagine a leak on your basement wall:

One contractor may propose excavating all the soil around that wall in order to "get a good look" at the problem. This may cost thousands of dollars, but that certainly will do it.
Another contractor may simply show up and, for $150, slap some waterproof paint over the spot. That may very well stop the leak for a while.

Yet a third contractor may show up, trace the leak, and know, right out of the gate, that the right repair is to pump an epoxy sealant into the crack, fixing and sealing it forever. His fix will cost about $350.

The cheapest "deal" turns out not to be any kind of "deal" at all. The most expensive is downright wasteful, while the middle ground approach turns out to be the best bang for the buck.

Hiring a Lawyer for a DUI, or any kind of case, for that matter, isn't really much different. The primary question becomes how much work is necessary.

And that can vary from case to case. A good DUI Lawyer will always engage in a factual investigation once he or she takes on a case. A bargain Lawyer simply cannot afford to do that and expect to turn a profit, so they'll simply sign the Client up for a quick plea deal.

The overpriced Lawyers will often spin a large story about all the things that "could" be wrong with the case. That's kind of like someone listing all the things that "could" go wrong in an airplane, and cause it to crash. Listen to that long enough, and you'll never set foot in a plane again. To be fair, the high-end Lawyers will rarely charge an exorbitant Fee and simply rush in and quickly take a plea. They'll spend the time and effort and get enough Records to choke a horse. The problem is that, all too often, this is a complete waste of time and money.

Going back to the leaky basement wall, the most expensive contractor could tell the homeowner that they'll inspect the entire foundation of the home and dig up all the soil around all the basement walls, but in the end, in most cases, they'll wind up injecting the same epoxy into the crack that the middle guy would, except they'll wind up doing that after they've done several other thousand dollars worth of unnecessary and wasted work.

So how do you know what to do in a DUI case?

First, avoid the low-bidders. They bring nothing to the table but a waste of money. No Lawyer who thinks enough of his or her skills markets them on a bargain basis. I certainly don't. If they don't think enough of themselves to compete in the big leagues, it's not likely that any Prosecutors or Judges do, either. They build a practice upon moving cases in and out as quickly as possible, and their income is based on doing as little as possible in as many cases as possible. That's no way to have something as important as a DUI handled.

Instead, a person should look for a Lawyer who will charge a Fee that will include doing the necessary background work and investigation to make sure the DUI charge is legally sound, and, if not, will then have a built-in structure to charge for the work necessary to intelligently challenge weak evidence. By weak evidence, I mean anything from questionable breath or blood test results to a case predicated on a questionable traffic stop. Believe it or not, I have seen cases where people have been Arrested for DUI even though they were never pulled over, or even not in the car at the time of Police contact. DUI cases stand or fall based upon facts, and those facts have to be provable to certain legal standards in order for the case to be considered legally sound.

Some cases are rather obviously solid. When a DUI driver crashes into another car, and the Police arrive at the scene to find one of the drivers behind the wheel and obviously under the influence, it is highly unlikely that any Judge will be tossing that case out. You can spend $10,000 in Legal Fees and subpoena everything right down to the Arresting Officer's kindergarten school records, but such effort is not likely to result in the case being dismissed.

Other cases almost scream, "fight." When a driver is pulled over for suspicion of DUI, and no breath or blood test is given, there is no actual evidence of intoxication. Taking a plea to an alcohol-related Offense in such a situation is, in many cases, simply selling out the Client.

Yet there's far more to this than simply deciding to fight the case, or not. Even in a case that is obviously "rock solid," there are necessary steps in the DUI process that will absolutely have a huge impact on what happens to the Client. And the bargain Lawyers simply cannot and do not address these issues. Worse yet, most of the high-end "we fight everything, every time, no-matter what" Lawyers are equally unable to properly prepare a Client for these critical steps, because their entire focus is on trying to beat the case, no matter what the facts and how remote the chances of actually doing that may be.

In some of my other DUI blog articles, I have discussed the ultra-important role of the Probation interview and the mandatory alcohol assessment test that is part of that larger process know as the PSI, or Pre-Sentence Investigation. By Law, prior to being Sentenced for a DUI, a person must first take a written alcohol assessment test. This test is scored, and that score determines if the person falls within the range to have a drinking problem (or not), or within the range to have the potential to develop a drinking problem. At least in 1st Offense cases, this score is the about the single most important factor in determining what happens to the person.

In addition to the alcohol assessment test, the person will be interviewed by a Probation Officer, who is legally required to make a written recommendation to the Court advising what kind of Sentence the person should receive. This is not nearly as arbitrary as it might sound. The Sentence recommended is mostly a product of the score a person gets on the alcohol assessment test. Test out showing an alcohol problem, and the person can expect counseling and/or some kind of rehab. Test out showing the potential to develop a drinking problem, and some classes or counseling will follow. Test out showing neither a problem, nor the potential to develop one, meaning the DUI appears to be an isolated incident, and the person can expect a much more lenient Sentence, instead of a Probationary term with too many conditions to handle.

Thus, this test and it's results are the primary determinant of whether the person gets Probation and alcohol awareness classes, or is Ordered into counseling, or some kind of outpatient alcohol rehab (Intensive Outpatient Program, or IOP, for short) program. If the person is found not to have a problem, and not to display the potential to develop one, they will most likely only be Ordered to complete an afternoon or evening Victim's Impact Panel, often put on by MADD, or Mothers Against Drunk Driving.

Whatever the outcome, it will hinge entirely on how well or poorly the person does on that alcohol assessment test, and how they perform in the PSI, including the mandatory interview with a Probation Officer from the Court.

Anyone facing a 2nd Offense DUI already knows this. They've been through this before, and I can guarantee that whatever happened in their first case was exactly, or almost exactly, what was written in the PSI Recommendation provided to the Judge on the day of their Sentencing. Even in a 2nd Offense case, the kind of counseling a person is Ordered to complete will be the direct result of how well or poorly they do in the PSI process, and most particularly on the mandatory alcohol assessment test that is a part of that process.

In my Office, if I sense that the case seems to have the hallmarks of being sound enough not get tossed out, which really accounts for most cases, I'll begin the PSI preparation process at my first meeting with the Client. I'll introduce them to the alcohol assessment process, and we'll get our first crack at learning how to perform as well as possible on it. This takes about 2 hours.

Let's talk about a typical 1st Offense case for a moment. Beyond the several hours spent going to, from, and in Court the first time or two, there will be a few hours spent investigating the case. If the case doesn't look like it will get tossed out on some technicality (and that's true for most cases), I'll spend another hour or two with the Client refreshing and preparing for the PSI again, if and after a plea has been worked out. Add another few hours returning to Court for Sentencing, and you can see that, even in a "quick" case, it will take about 10 to 12 hours of Lawyer's time to wrap it up. Given the hourly Fees charged by "better" Lawyers, and the necessary overhead costs involved in maintaining an Office, this is nothing that can be done for less than the $2000 I charge.

On the flip side, if a case is ripe for challenge, and it seems likely that such a challenge will pay off, then more work is required. However, one should only consider paying for that work if the work needs to be done. Paying to have it done just for the sake of doing it makes the Lawyer rich, but if that money doesn't buy a dismissal of the case, then it's money wasted, pure and simple.

This requires an honest evaluation of the case, and requires honest communication between the Lawyer and the Client.

Recently, I leased a new car. When it came time to sign the papers, I was offered all kinds of warranties, and these included things like rim and tire warranties, interior and exterior protection, and pretty much anything you can think of. When I declined, the manager showed me sheet listing the average cost of a rim and a tire. I was given a crash course in all the things that could go wrong, and how I could protect myself.

In the analytical and concise words my dad would use, "bull$#!!."

The same thing is at play when Lawyers hawk their overpriced services by listing all the things that could be wrong with a case. Sure, some of those things "could" be wrong, but the plain fact is that in most cases, they are not. A key missing statistic in all the "testimonials" this kind of Lawyer puts out is what percentage of the cases they accept are actually dismissed or tossed out on some technicality. If you think about that as you read their self-reports and testimonials, then you'd have to conclude that they don't handle that many cases.

Finding the right Lawyer takes time. A person should read what they've written and see, in their various articles, how they explain their approach to resolving DUI cases. And by "explain," I mean actually examining and explaining how they do things, and not just using tired old phrases describing themselves as "tough" and "aggressive."

A person should pick up the phone and call the Office. How is your call greeted? Whoever answers the phone is, whether they think so or not, the "Director of First Impressions." There's an old saying that a dog is a reflection of the family that owns it. The same holds true for the person who answers the phone in a Lawyer's Office. If the person on the other end is too cold or business-like, then you are not likely to find a warm and friendly voice if you get transferred down the line to the Lawyer. If the person answering the phone sounds like little more than the cheapest employee they could find to do the job, well....

In order to establish good and honest communication, and to form the basis for a good working relationship, the Client needs to like the Lawyer, and the Lawyer needs to like the Client. If you are not comfortable with the Lawyer you hire, or feel that you can't voice all of your concerns or ask all of your questions, then you've hired the wrong person. If the Lawyer doesn't see eye to eye with the Client, or simply doesn't truly like the Client, then he or she will not be able to put in the required effort to produce the best outcome. The last thing you want to be is just another case that a Lawyer just wants to get rid of. And I can say, with absolute certainty, that if I like my Client (and that's a requirement for me to accept a case), I feel a moral obligation to leave no stone unturned in my quest to bring about the very best outcome legally possible for them.

Hiring a Lawyer for a DUI means paying a Lawyer. Pay too little, and you'll get too little. Pay too much, and you've just wasted your hard earned money. A good DUI Lawyer, or even a bargain DUI Lawyer, will cost more than a new refrigerator or TV set. Most people will spend some time and research such a purchase before handing over their money. It only makes sense to put in at least as much effort in finding the right Lawyer to handle a DUI as it does in buying a new appliance.

In the end, about the best advice a person can follow in this situation is to "spend wisely." Who can argue with that?

The Driver's License Appeal Process in Michigan - Getting Back on the Road - Part 7

2011-12-12T20:37:00Z

In part 6 of this series, we discussed what happens at the actual Drivers' License Appeal Hearing. In this seventh and final installment of our overview of the Driver's License Restoration Process, we'll wrap up with some final observations about what happens after the Hearing. We'll examine how an Appeal is either Granted or Denied, we'll talk about the mandatory ignition interlock system that Michigan residents must install in whatever car they'll be driving for at least a year, and what the term "Restricted" means as far as a License goes, how out-of-state Clients essentially win an "Full" License, and then we'll finish with some commonly asked questions about the License Appeal Process.

Let's rewind a bit. Let's go back to the Hearing Room for a moment. The Hearing has just ended. The Hearing Officer calls the case "off" the Record, announcing the time it ends, and then hits the "stop" button on the Recorder. At that point, goodbyes are said, and we leave the Hearing Room and head toward the waiting room of the DAAD Hearing Office.

After the Hearing has ended, I usually go over it with my Client, and do a sort of "post-game wrap up." Normally, this involves me explaining to the Client how and why I think we won.

That's it. The process, or at least our active part in it, is complete at that point. No decision is announced at the conclusion of the Hearing. Instead, we go home and wait.

I'm often asked about that. Standard protocol is for the Hearing Officer to tell the parties that he or she will take the Appeal under advisement, and, once a decision is reached, will thereafter forward a written copy of that decision to everyone. One of the main reasons the Hearing Officers do not announce a decision on the spot is for safety. Except for those that I handle, many, if not most Appeals, lose.

In my Practice, I win nearly 99% of mine the first time, and, as I have mentioned before, I offer a guarantee that I'll win any Appeal I accept the first time, and will go back, without further legal Fees, until I do win my Client's License back. Thankfully, I've never had to go back a 3rd time, and out of the hundreds and hundreds of cases I've handled, have only had to go back a second time on just a few occasions.

If the Hearing Officer were to announce to someone that they have just lost, it's not hard to imagine someone "going off" on them, blaming them for holding the person back with respect to their employment opportunities, or their ability to otherwise lead a normal life. BY the same token if the Hearing Officers began announcing winning decisions on the spot, while those people would be grateful, others might learn that NOT being told they've won means they lost, and that could result in the same kind of confrontation.

]]> It takes anywhere from 2 to 4 weeks to get the decision, and it arrives in a formal written Order form in the mail. When a person wins, the decision is accompanied by instructions about getting the ignition interlock unit installed in their car, and telling them that they must go to a Secretary of State Branch Office to get an actual Restricted License.

For out-of-state Clients, they'll receive the same decision, but if the Appeal is Granted, they'll simply be notified that the Michigan has issued a "Clearance" which allows them to obtain a License in another state.

Michigan Residents can only win a Restricted License, and must install an ignition interlock unit (a breathalyzer unit) in whatever vehicle they'll be driving. By Law, this must be for at LEAST one year. A person can drive on the Restricted License and with the ignition interlock indefinitely. However, after the 1-year period is up, they can go back to the DAAD and file a new License Appeal and request removal of the interlock unit and a Full License.

There are 2 options for Restricted Licenses:

1. The first kind is just a general Restricted License, and allows the person to drive to, from and during the course of employment, to and from school, to and from any necessary medical treatment, and to and from AA or some sobriety support group meetings, if they're into that. There are NO time limitations on this type of License, so a person on-call can be driving for work at anytime during the 24 hour day, or simply decide to go to a 3 am AA meeting.

2. The second type of Restricted License is time-based. It allows the person to drive for ANY reason during the allotted times, usually something like 7 am to 7 pm, or something like that.

Only one of the Hearing Officers in Livonia asks the person what type they'd like if they were to win (assuming, of course, the person is working. If they're not currently employed, they'll automatically be given the time-based License). The others default to the work-type License, unless the person is on disability or something. A person can always contact Lansing to change from one type of License to the other.

This is an important point. In order to go from the Restricted to a Full License, and in order to have the ignition interlock unit removed, the person must go through another full License Appeal. This Appeal is identical to the first Appeal, EXCEPT that the person must also bring in what's called a "Final Report" from the interlock company detailing that they've had no violations on the interlock since its installation, or detailing any such violations. Don't worry, minor violations occur all the time, and are NOT a serious cause for concern. However, what's called a "major violation" is a big deal, and will result in the DAAD scheduling an immediate Hearing to determine why the person's License shouldn't be completely Revoked again.

Thankfully, those are rare, and really only occur when a person has returned to drinking.

Thus, within a month, the person will find out if they've won or lost. Not to be funny about it, but if they're my Clients, they'll simply be waiting to find out they've won, and what to do next.

At this point, I'm going to turn to a sort of "FAQ" style conclusion to this section. Normally, I don't like FAQ, but the following represent questions that I'm asked so frequently, they really do qualify as "Frequently Asked Questions."

Q. Is there any way to win a Full License rather than a Restricted License?
A. No. If you live in Michigan, the ONLY option is a Restricted License.

Q. Is there any way to NOT get an ignition interlock unit put on my car?

A. No. If you live in Michigan, and you win a Restricted License, you MUST have the ignition interlock installed in any vehicle you drive for at least one full year, and can only have it removed after you file another Appeal after that year is up.

Q. How much does this ignition interlock thing cost?

A. This is why it's called "FAQ," and not "FA," or "frequent answers." I don't know, except that it is NOT prohibitively expensive.

Q. How many Letters of Support do I need?

A. Rule 13, which governs License Appeals, requires between 3 and 6 letters. My magic number for a minimum is 4, and I have submitted as many as 8 Letters.

Q. What should the Letters say?

A. I help extensively with this, and we'll go over that in significant detail when you first come in.

Q. How do I get the Letters to you, and how do you get the corrected copies back to me?

A. I can do it by email, fax, or regular mail. Normally, most people do it by email.

Q. Who should I call as a witness, or as witnesses?

A. No one. I don't believe in witnesses. I win all of my cases without them.

Q. Do you have a place where I should go to get the Substance Abuse Evaluation completed?

A. Yes. I have several, but my favorite is a Clinic a few blocks from my Office. They do a good job, providing a first-class product at a price LESS than anywhere else I've found.

Q. I live far away (or out of state). Can I come and see you the day I have my Substance Abuse Evaluation completed at the Clinic by your Office?

A. Yes. We set it up that way so you can do it all in one trip, and then go back home.

Q. Do I really need a Lawyer to do this?

A. Legally speaking, no. I will gladly tell anyone thinking about trying this on their own to go for it. Then, call me next year when you've decided you really want to win.

Q. Why should I hire you?

A. Because I am a Driver's License Restoration Lawyer for whom this kind of case represents the vast majority of my practice. I win, and I guarantee it. I don't just "do" License Appeals, they're pretty much most of what I do. I've won more cases in the last year than most Lawyer will ever handle in their entire legal career.

Q. How much do you charge?

A. $3000, beginning with $1000 down at the first meeting, which, by the way, is scheduled BEFORE the Client has their Substance Abuse Evaluation completed, so that I can spend those 3 hours preparing them for it, and which will typically last about 3 hours.

Q. Do I need to come and see you to prepare for the Hearing?

A. No. I actually prefer to do my "preps" the night before the Hearing, on the phone, after business hours, so that there are no distractions. This "prep" session usually lasts about an hour, or perhaps just a bit longer.

Q. I have other questions not listed here. How can I ask them of you?

A. You can call my Office anytime, M-F, between 8:30 and 5, at 586-228-6523, or you can use the contact form on this blog, or just email me at jrandalaw@gmail.com.

The License Restoration process is involved. It's complexity lies not within the governing Rules, but rather the application of those Rules. These things are learned by experience. I can help a person who has turned that corner in their life, and who has really gotten Sober, to get back on the road. I am open to answering any questions a person has, and I have he absolute best, and nicest staff anywhere. If you pick up the phone to call my Office, you'll never feel any kind of "pressure" to make an appointment. Instead, we'll answer your questions, and invite you to call back with any others you might have. In the end, if you hire me, you'll win your License back. If you ultimately follow some other path, you'll at least hang up the phone rather pleasantly surprised at how nice and helpful my staff and I are, and you'll be glad you called.

Whatever decision the reader makes, they should arrive at it after lots of careful consideration. Just as there are no shortcuts to properly handling a License Appeal, the process of deciding who to hire must be given adequate consideration, as well.

The Driver's License Restoration Appeal Process in Michigan - Getting Back on the Road - Part 6

2011-12-09T20:14:20Z

In Part 5 of this series, we discussed preparing for a License Appeal Hearing. In this sixth part, we'll move on to examine the actual Hearing, but we'll tie in a few points about the "prep" session that, in the last section, I noted would be better explained here.

The big day is drawing near. For those who've been through the process before, it's no less intimidating, because their prior attempt didn't work out too well, and thus, they're going back to try again. To the person waiting to go in for a License Appeal Hearing, it seems like everything comes down to this. It feels like it's all on the line...

While it may feel that way, the truth is that the Hearing, while important, is NOT the entirety of a License Appeal. It doesn't actually "come down to this." Instead, I try and help my Clients understand that the License Appeal Hearing is just the final step, and one of several such steps, before a decision is made. In this 6th part, we will examine the actual License Hearing, and what a person can expect to encounter, and why, at least if I am their Lawyer, this is really nothing to be nervous about.

As a Driver's License Restoration Lawyer who has handled hundreds upon hundreds of License Appeal Hearings, and who has appeared in Court, quite literally, almost daily for the last 2 decades, I have to remind myself that while this is really "just another day at the Office" for me, it is a big deal for my Client. The best analogy that comes to mind is getting a root canal. For me, facing such a procedure is a bit intimidating. Will the tooth survive, or will it break apart, necessitating oral surgery and an implant? All kinds of questions whirl about in my head as that kind of "big day" approaches for me.

Yet for my Dentist, this is, in every sense of the word, "just another day at the Office." He's not worried, because he has a pretty good handle on what will happen, or at least the range of realistic possible outcomes. He'll assure me that everything will be fine, and then he'll begin talking about things like movies, sports, or whatever you might discuss with a co-worker or friend with whom you're sharing lunch.

Take me out of the Patient chair, put me in the same situation with my Client, and I'll do the same thing. I know that we're okay, but not just because I say so. Remember all that stuff back in parts 4 and 5 of this series, where we talked about how the Substance Abuse Evaluation is the foundation of a License Appeal, and that we need to make sure that it's perfect, or darn close to it, and then we examined how much time I'll put into helping with the Letters of Support? Well, if we've done all that, then by the time we file for the Hearing, we're already in EXCELLENT SHAPE. The actual Hearing is very important,of course, but much of the path toward winning (or losing) a License Appeal will have been cleared by virtue of the good evidence submitted beforehand.

]]> The Hearing is an opportunity for the Hearing Officer to confirm that the depiction of the person in the Substance Abuse Evaluation, and described in the various Letters of Support, is actually consistent with the person who shows up for the Hearing. If we've done our groundwork correctly, then there is really nothing to fear, or be intimidated about when the actual Hearing takes place. Instead, the Client should try to understand that this is a good thing, and an opportunity to do what cannot be done in an Administrative (Appeal by mail) Review. If the Hearing Officer has some questions, this is our opportunity to clarify whatever he or she is concerned about.

And while I certainly know how accurate and true this is, it might help the reader understand better if we examine what actually happens in a Hearing.

When my Client and I arrive for our Hearing (which for me, and anyone who is my Client, means arriving at the Livonia Branch of the DAAD), each of us will check in at the front window. Hearings are set Monday through Friday, every hour, on the hour. This means that Hearings are scheduled for 9 am, 10 am, 11 am, 1 pm, 2 pm, 3 pm, and 4 pm. There are no Hearings set for the half-hour. Each case is blocked off for a one-hour slot.

The Notice of the Hearing not only provides the time, but also adds the word "sharp." Thus, a person who has a Hearing scheduled for "X" date at 9 am will see the time listed as "9:00 am SHARP."

Once the Hearing time rolls around, the door to the Hearing Offices will be opened by the Hearing Officer, who will call the name of the person Appealing into the lobby. My Client and I will rise from our chairs in the waiting room, and follow the Hearing Office down the corridor to his or her Hearing Room. We'll go inside, and shut the door. The Hearing Officer sits up at and in a cubicle that almost resembles a kind of Judge's Bench, while the Client and I will sit at a long table. Whatever else, the Hearing Room is clearly a Hearing Room, and has a Judicial aura about it.

The Hearing begins with the Hearing Officer announcing the name of the case, the date, time and location, and also informing the parties that the Hearing is being recorded.

The next few steps are "ministerial," meaning they are more or less housekeeping matters between the Hearing Officer and the Lawyer. Documents are reviewed and marked as exhibits, and then, after a few minutes, the actual Hearing begins. Most Hearing Officers will ask the Client to raise his or her right hand to be sworn.

Then, the Hearing Officer will ask me if I have any opening statement, or remarks. I always do, and not just because I'm a Lawyer, and Lawyers tend to blab. Instead, I believe that a good presentation is not much different than a good piece of writing, except it's spoken, and the guiding rule to good writing, and good oral argument is:

Tell your audience what you're going to be telling them
Then, tell them
And finally tell them what you've told them

Now, this may seem strange coming from a guy who is in the midst of the 6th installment on a series of articles designed to "overview" the License Restoration process, but when it comes to holding a Hearing Officer or Judge's attention, the prevailing rule is known as the "kiss" rule: Keep it simple, stupid. Short and sweet is the order of the day as far as opening statements in a License Appeal are concerned. That said, I do think it's important to tie into the opening statement something unique about the Client and his or her case.

Once my opening statement has been made, I am given the first opportunity to ask questions. My usual concentration of questions remains roughly the same from case to case, but they do take into account the specific facts of the Client's past.

Taking the reader back to the previous installment of this series (Part 5), at the end, I noted that some of what will appear in this section about Hearings actually takes place in the "prep" process, but that it is more relevant to this discussion about Hearings. Well, we're at one of those points now.

Part of what I will have prepared my Client for is how the Hearing is conducted, and what I will be doing. After the opening statement is made, I have the first opportunity to ask questions. I will have gone over these with my Client beforehand, and while they might vary from case to case, a large part of what I will be attempting to accomplish with my questions is easing the Client into the process by asking some fairly easy, soft questions. I want to relax the Client, and help them segue calmly into the Hearing. By asking easy questions, the answers to which are helpful in proving our case, their nerves will steady, and they will be far more at ease once I am done, and the Hearing Officer begins asking his or her questions.

The Client will have been prepped about the open-ended nature of my questions, so that they don't have to worry about coming up with the "right" answer, but will instead have a guided opportunity to begin telling the story of their transformation from drinker to non-drinker. They will, in essence, be given the first opportunity to tell the story of their Recovery.

Once I have finished with my questions, I'll turn the floor over to the Hearing Officer. He or she will ask their questions, some of which will be the "general" questions that any Hearing Officer will ask, while others will be questions of unique interest to the particular Hearing Officer deciding the case, some of which will depend upon the facts of the person's Recovery Story. Often, this amounts to one set of questions for those who go to AA, and another set of questions for those who have not attended, or who no longer attend AA.

Next, I get to re-question my Client, and clear up anything that I think need to be addressed, or to focus on anything that I feel should be expanded upon.

Then, the Hearing Officer can ask another round of questions.

After that, I get another go.

While this "back and forth" can, theoretically, last for an hour, in practice, it usually amounts to no more than 2 sets of questions from me, and 2 sets from the Hearing Officer. Usually, the Hearing Officer wraps up his or her questioning the first time, and I have the only follow-up.

I will also have prepped my Client for what I'll be doing after I've finished with my first set of questions, and it is important. I tell my Clients that my role changes once the Hearing Officer takes over, and that I turn into a sort of lifeguard, watching out for them. Specifically, I will begin taking notes.

First, I will be listening to the questions they are asked, and the answers they provide. Knowing their case, I can tell if their answer is not "right," or creates the wrong impression, or leaves something out. I will note this things that so that when it is my turn to reexamine (re-question) them, I can come back and clear things up, or fill them out, or otherwise make sure the right impression is made.

I point out that inherent in my doing this, in "watching their back," so to speak, is that they don't have to over-think or worry about their answer too much. I tell them to just go ahead and answer the question as they think it is being asked. If they miss something, I'll catch it. They don't have to get all caught up in over-analyzing the question and their answer. If they do "goof," I'll come back and fix that.

Beyond that, however, I tell my Client that I will be writing down some good things, too, and maybe far more of those than anything that needs clarification or "fixing."

Thus, I may note that the Client seems to be very straightforward and honest. Maybe the Client said something that almost seemed to work against them, but I will point out that the Client is being completely open and honest, and not trying to "sanitize" their story.

I will likely jot down a few key words the Client uses in answering the Hearing Officer's questions.

Once the all the questioning has ended, I have an opportunity to make a "closing argument," wherein I will summarize some of the stronger points made in the Hearing, and will address any other areas of concern that may have arisen.

And in almost every case I can recall, I will write down, word-for-word, an answer or two that the Client gives in response to the Hearing Officer, and will repeat that line during my closing argument to support the our case.

Once my closing argument has been made, the Hearing ends.

In any Appeal that I handle, the Client should and will know that they have a real, live and involved Lawyer there helping them, and not just some "suit" that smiles, but does nothing, while the Hearing proceeds. I have heard all too many times from Clients that a previous Lawyer (who obviously lost the Appeal) just sat there and "did nothing." I can only wonder...

I take an active role in the Hearing, from the very moment it begins to having, quite literally, the very last word.

Yet none of this matters if the Appeal has not been properly prepared from the very beginning. This kind of involvement can only have an effect if I have been part of every step, from the initial preparation for the Substance Abuse Evaluation to the revision of the Letters of Support, right up to the preparation of the Client for the Hearing, before the particular Hearing Officer to whom the case has been assigned.

It is not uncommon for me to get a call from someone who has a Hearing scheduled, and then decides they want to go in with a Lawyer. As a matter of course, I decline Representation in ANY case where I wasn't involved from the very first step. Being helpful at the Hearing necessarily involves having been helpful from the get-go, and knowing and having been a part of every step in the development of the Appeal.

Besides, most do-it-yourself Appeals lose, so getting involved with a case that someone else (and particularly a case where anyone OTHER than a real, bona-fide License Restoration Lawyer did the work) developed is, at least statistically speaking, a losing proposition. Besides that, the truth is, I don't want to be embarrassed as all kinds of evidentiary shortcomings are revealed and the Hearing Officer looks at me, wondering, "what the hell did Randa do here?"

Normally, Hearings last from between 35 to 45 minutes. As they are scheduled every hour, on the hour, they are limited to no more than an hour. Few come close to eating up more than 45 minutes.

A big part of my Hearing practice is that I NEVER call any witnesses. Witnesses are a liability. Any help a witness could potentially provided can be put in a Letter of Support.

However, Letters cannot be asked any questions, cannot be "tripped up," don't make mistakes, get nervous, or otherwise cause any of the problems that witnesses can. In fact, when I hear that a previous Lawyer called a witness, I pretty much know he or she is not a particularly experienced License Restoration Attorney.

Let me be clear on this point: Absolutely any "help" that a witness could provide can be included in the Letters of Support. Live witnesses ONLY bring potential trouble. Considering my win rate (nearly 99%), I know my methods work.

Yet, time and time again, I read the losing decisions that new Clients bring in, and see how the testimony of a witness that came along with the intention of helping wound up having the exact opposite effect

And I honestly think that the Hearing Officers appreciate the fact that I don't traipse people in and out of their Hearing Rooms to provide information that could have more conveniently been provided in the Letters of Support. This makes the process more efficient, and less time-consuming for them, all the while making it more manageable and successful for me.

If there's one theme, and indeed, one word, we've used over and over again in this series, it's "preparation." Proper preparation is the key. By the time you sit in the audience of any play, the thing will have been rehearsed countless times. When the curtain rises, the actors are just doing in front of the audience what they've done a million times in rehearsal. If they don't know their lines by Showtime, then something is very wrong.

The same holds true in a License Appeal. None of what happens at the Hearing should come as a surprise. The Client should know what to expect.

In the final analysis, the Hearing is really an opportunity for the Client to tell their story. When the Appeal is based upon a real story of recovery, and a person has made the transition from drinker to non-drinker, then there's really little to worry about. It may seem scary at first, but, in practice, if a person is telling the truth about their Recovery, and if they've been properly prepared, it's really not all that bad.

In Part 7, we'll wrap up our overview of the License Appeal Process, and examine such things as how long it takes to find out if you've won or lost, what kind of License (or Clearance) is granted, how the mandatory ignition interlock works, and to whom it applies, and answer a number of other "housekeeping" questions about License Appeals.