Michigan Criminal Defense Lawyer Blog

Fees and Payment Plans for Michigan Criminal, DUI and License Restoration Cases

2010-03-02T02:58:52Z

Let me begin this "article" by pointing out that it is a departure from my usual information-style discussion of some aspect or other of the kinds of Criminal, Drunk Driving and License Restoration cases that I handle. I have found that, after reading some of my articles, some people will call my office and ask "How much do you charge?" or "Do you have a payment plan?"

On my Web Site, at the very top, there's a "button," or link for "Fees." For whatever reason, that button seems to get missed a lot. This "article" will discuss money; how much I charge for certain legal services and how payment is made.

For Driver's License Restorations, I charge $2100. The usual payment plan begins with 1/3 ($700) down at the first face-to-face meeting, another $700 paid as the case is prepared, and the final $700 paid about a week before the actual Hearing.

Most Misdemeanor cases are paid with an initial Retainer or ½ down, with the second ½ due prior to the Court date. Therefore, a typical Macomb, Oakland or Wayne County District Court case with a fee of $1200 would require a $600 payment at the first face-to-face meeting, and the other $600 paid just before the actual Court date.

In Misdemeanor cases which require more than 1 Court appearance (DUI cases always require 2 Court dates), the Retainer is still ½, with the second ½ due prior to the SECOND Court date.

For Felony cases, I usually require ½ down as a Retainer, and break the remaining ½ into 2 separate payments. Thus, if the Fee is $3400, I usually require ½ ($1700) as a Retainer at the first face-to-face meeting. The next payment is $850, which is paid when (and if) the case goes to the Circuit Court. The final payment of $850 is due just prior to the last Court date, which is usually the Sentencing.

Sometimes, by special arrangement, I will break the payments into 3 equal installments. Often, I will work out a deal where no further fees will be charged beyond the initial first ½ if the case is finished up in the District Court, rather than being bound over (or "sent up") to the County's Circuit Court.

Traffic Tickets are always handled on a ½ down, the other ½ due before Court basis.

There are no payment plans based on monthly or weekly installments, and the 1/3 to ½ down required as an initial Retainer is pretty much set in stone. Throughout my Blogs it has been my goal to be honest and direct. To that end, when someone calls about a Misdemeanor or Felony case and offers to put down a few hundred dollars, with promises of future payments, I must decline. Those arrangements have never worked out satisfactorily. A retired Judge once said, when imposing fines and costs and allowing no time to pay them, that although he believed most people had good and honorable intentions to pay, it was better that they got credit from someone who knew them better than he did, and that's how it works in my Office.

My office accepts Cash, Check, Money Orders, and Visa, MasterCard and Discover.

Another Big Scam Involving DUI Cases that is Always Untrue

2010-02-27T02:46:47Z

In the previous article, we dismissed the scam-notion about someone who knows someone who knows some Lawyer who can get a DUI "dropped" to the Civil Infraction of Careless Driving. In this article, we'll tackle another "urban legend" that has some people literally shaking in their boots when they contact me about their DUI charge. Again, I need to make clear that I only handle DUI cases in the Courts of Macomb, Oakland and Wayne Counties, so although I suspect that what I'm about to say is true everywhere, I can only confirm that it's true in the Tri-County area.

Part of my job as a DUI Lawyer is to make sure my Clients are well-informed. In order to be able to fully explain what will and will not happen in any given case, I believe it's essential for me, at least, to limit my practice geographically so that I appear in the same Courts, in front of the same Judges, day-in and day-out. This allows me to learn how each Judge handles a DUI case, and in turn, I can prepare my Client for what to expect.

The "urban legend" that I hear often enough to warrant addressing is that the Judge who will be hearing my Client's case had a son or daughter killed by a Drunk Driver. In certain cases, it may be that the person has heard that one of the Judge's in a particular Court has suffered this loss, but the point is the same. So let's get rid of this rumor right now:

There is NO JUDGE in any of the Courts in the Tri-County area who has lost a child to a Drunk Driver. Not one.

If there was even a grain of truth to any of this, you would expect that either that Judge would recuse (disqualify) him or her self from hearing DUI cases, or at least have faced a rash of motions for recusal by Lawyers for those facing DUI charges.

But it never happened.

If you or someone you know is facing a DUI charge in the Tri-County area and have heard this rumor, you can take it to the bank that it's absolutely, 100% false.

DUI charges come loaded with enough problems, but this, at least, isn't one of them.

One of the Biggest Scams Involving DUI Cases that is Always Untrue

2010-02-25T02:13:53Z

I handle a lot of DUI cases, and I speak with a lot of people facing this charge. Over the years, I have repeatedly heard a few things that could politely be called "urban legends," but that I think are more accurately described as bulls**t. To be clear, I am about to dismiss these notions completely, but once again I must repeat that since I only handle DUI cases in the Courts of Macomb, Oakland and Wayne Counties, I cannot say for sure what happens in other places (although I strongly suspect that neither of these "fables" is true outside of the Tri-County area, either). In this article, we'll deal with the "deal of the century" scam involving the worlds greatest Plea Bargain. In the next article, we'll dismiss another often-mentioned, but never-true rumor.

The first "urban legend" I hear is that someone knows someone else who knows some lawyer who can have a DUI dropped to the civil infraction of Careless Driving. This "deal" is usually available for a hefty legal fee, all paid in advance. This deal does not happen. Ever. Alcohol-related Traffic Offenses are never, ever, ever "dropped" to civil infractions, or any other kind of non Alcohol-related Traffic Offense, except in the most unusual, exceptional and rare kind of case. This kind of case comes along once every few years, at most.

When someone runs this kind of hair-brained idea by me, I first tell them that such "deals" don't happen, and then I suggest that if it's such a sure thing, they should work out some kind of arrangement with the lawyer which provides a refund of some of that hefty fee if the deal doesn't go down as they've been made to believe.

Not surprisingly, that kind of deal doesn't happen, either.

Think about this for a moment; the internet is filled with all kinds of Legal websites dealing with DUI. Some, like mine, detail how DUI cases are usually handled. Others focus on (very expensive) ways to challenge the case, but absolutely none of them even hints at the "dropped to a careless" deal. Could it be that, different as the approaches of the various Legal websites may be, they are all at least above-board, whereas the phantom "deal" which always comes secondhand is a scam?

Listen, if you think a deal like that can be had, let me help you get rich. See, I got an e-mail from this Princess in some far away country who has a few hundred million dollars stuck in her bank account, and in order to get it out, she needs your help....

Read on to the next article to find out which other completely untrue rumor often freaks out someone facing a DUI in any particular Court.

Traffic Tickets in Michigan - The First Thing You Should Do With a Citation

2010-02-22T21:59:00Z

Part of my Practice includes working out Traffic Tickets. In other Blog articles I have explained how I handle Tickets, and on my Website I also discuss the general philosophy I have regarding Tickets, and the Fees I charge to handle them (about $450 to $600 for Civil Infractions, and between $1200 to $2200 for those that are Misdemeanors, or Criminal Traffic Matters that carry a potential Jail Sentence).

I also point out that my Traffic Ticket Practice is limited to Macomb, Oakland and Wayne Counties. Given what I charge, there is no way it's worth my time to go farther, and it's also true that I don't think it's worth anyone spending much more than what I charge when they can find a local Lawyer in a distant County who can probably do the same thing that I can, and for what I charge locally.

When a person gets a Ticket, the first thing they should do is decide whether or not they're going to simply "eat it" or if they want to avoid, or at least lessen the points and other consequences of it. Given that I call not doing something about a Ticket "eating it," you can probably already tell that I think just paying it is a dumb idea. It's not just my professional experience that results in that conclusion.

As a Law Student, over 20-some years ago, I remember getting a Ticket and telling one of my classmates about it. At the time, I was just going to pay the Ticket and be done with it. My classmate told me that I would be crazy to just pay the Ticket. He had an older brother who was a Lawyer, and told me I should hire him and have him take care of it for me. At the time, I think I had a few points on my Record, so my big concern was that my insurance would go up.

I decided that I was willing to see what my friend's brother could do. I plunked down his fee (reduced because I was his brother's friend, and as a quasi-professional courtesy). My buddy's brother went to Court with me, and wound up getting the Ticket worked out where no points would go on my Record. I paid a fine, and that was it. I had saved not only the points on my Record, but the inevitable increase in insurance rates that would have followed.

Sometimes, when people call me, they either cannot come see me within the time remaining before they have to either pay the ticket of set up a Court Date, or they may not have the money until that time has passed. So what should a person do?

Without fail, and in every Ticket Case, a person who if facing a Citation would be well-served to call the Court and at least have the matter set for an "Informal Hearing." This will stop the clock from running, as the Court will inform the Person that they'll be mailed a Court date some time in the future. In the meantime, they can make arrangements to hire a Lawyer.

For those who have the money and ability to jump right on it, then there's no need to call the Court. Just hiring the Lawyer will allow the Lawyer to file Papers with the Court which will likewise "stop the clock" and cause the matter to be set for a future Court Date. For those, however, who might need a little time, calling the Court and requesting and "Informal Hearing" will result in additional time to hire the Lawyer.

When a Lawyer is hired, even if it's the very day before the "Informal Hearing," the Papers he or she files with the Court then causes the Citation to be re-scheduled for what's called a "Formal Hearing," which is where the Lawyer meets with the Prosecutor at a "Pre-Trial," just like that in a Misdemeanor Case.

Winning back your Michigan Driver's License - 2nd time is NOT the Charm

2010-02-19T19:20:05Z

Being a Driver's License Restoration Lawyer means that, beyond calls from those who want to hire me to handle their case the first time, I get any number of calls from people who have already tried (either on their own, or with a Lawyer other than me), and lost. Usually, the first thing they want to know is about filing an Appeal. I explain to such a caller that Appeals to Circuit Court are generally a waste of time and money. Winning an Appeal to Circuit Court after losing at the DAAD essentially involves proving that the Hearing Officer didn't follow the law. I could go on all day about what that means, but most often, it boils down to throwing good money after bad in a futile attempt to overturn the DAAD's ruling. If the caller has taken the time to read the volumes of stuff I have written about this subject, they know that, whatever else, I know this area of the Law pretty well.

The conversation usually moves on to my representing them when they're 1 year is up, and they can file again for a new Hearing. This is when I have even more bad news. I have to explain that all the mistakes were made in that first, unsuccessful Hearing, do not simply go away, but remain part of the Record of their case. In other words, whatever caused them to lose the first time must be addressed in the subsequent Hearing. And this has the potential to be a huge problem.

This isn't bragging, but I win over 90% of my License Appeals. In those rare instances where I'm not successful, it's usually no surprise to either me, or my Client. In fact, it better not be a surprise to the Client, because if the person hasn't been made aware of any weaknesses in their case, and hasn't made an informed decision to go ahead, anyway, then there has been a serious problem in the Attorney-Client communication. Crippling problems, such as having a not-good-enough Substance Abuse Evaluation, or not-good-enough Letters of Support, or the lack of a fundamental understanding of the principles of recovery, are the kinds of problems which can never be overcome at the Hearing, and, in those cases, I would never file for a Hearing until things were made right beforehand.

When someone loses, however, then calls me, I don't have the luxury of having prepared their case. Thus, if the Substance Abuse Evaluation that they, or their previous Lawyer submitted wasn't good enough for the Secretary of State, then whatever problems it had must be addressed in the next year's Hearing. This means that if a person's Prognosis for Continued Abstinence wasn't good enough in their first Hearing, it won't do to just come in next year with an improved Substance Abuse Evaluation. Now, the person is going to have to explain and show what changed in the last year to account for the improvement in their Prognosis.

]]> The same holds true for their Letters of Support. Remember, these are Notarized documents which almost carry the same weight of live Testimony. In fact, these letters are, in a very real way, substitutes for the live Testimony of whoever wrote them. When a letter says something that hurts the case, or doesn't say enough to help the case, it's kind of hard to have that same person say anything the next year which contradicts whatever they said, or didn't say, the year before, without throwing the whole thing into doubt.

License Restoration Clients come in three varieties:

1. Those who have lost, and want expert help with next year's Appeal,

2. Those who wonder if they need a Lawyer at all, and

3. Those who have an idea of the complexity of this stuff, and want to get it right the first time.

Helping those in that first group, who have filed once (without me as their Lawyer) and lost, is a large part of what I do. While it's true that there's a ton of work to any of these cases, and second-timers have a bit more to do, they at least have a full appreciation for how necessary it is. Beyond just preparing a case to win, second-timers have to address, and overcome, whatever it was that caused them to not win the first time.

Of course, the better plan of action is to get it right the first time. Given that a loss almost always means the person has to wait another year to try again, deciding who to hire to represent them should not be based on finding the lowest bidder. Nor, for that matter, should that decision be based on paying the largest legal fee, either. Instead, anyone serious about winning a License Appeal should spend the time necessary to screen the Lawyers they find who specialize in this area. Read what they've written on the subject, and ask them about their experience. Whatever else, License Restorations are not the kind of thing that can be done on a "once in awhile" basis.

Michigan Drunk Driving - What Happens in a DUI Case

2010-02-18T01:26:55Z

Most Lawyers who write anything at all about DUI cases tend to focus on the Evidence and ways to beat the case. However optimistic those sales pitches may be, the plain truth is that the overwhelming majority of DUI charges result in some kind of conviction. In most cases, after the Arrest, and after a person has been Arraigned, their Lawyer will work out some kind of "Plea Deal" that either reduces the severity of the offense or results in a Sentencing agreement or bargain.

This article will focus on what I consider to be, by far, the most important (and least talked-about) aspect of a DUI case. If the case is not dismissed on some technicality, or unless a person has gone to Trial and been found "Not Guilty," some kind of Plea deal will have been worked out by the Lawyer. By law, after a Plea (or conviction, if a person has gone to Trial and lost), but before the Sentencing can be imposed by the Judge, a person must undergo a mandatory alcohol evaluation.

This consists of a written alcohol-use questionnaire, along with an interview by a Probation Officer. This whole process is called the PSI, or Pre-Sentence Investigation. The end product of this process is a PSI Report, or Sentencing Recommendation. Michigan law requires that this Report be provided to the Judge at or before the time of Sentencing to help him or her decide what to do. On the date of Sentencing, both the person being sentenced and their Lawyer are required to read this Report before going in front of the Judge.

It is accurate to say that, almost without exception, whatever is recommended by that Report is exactly what the Judge is going to order. In other words, it is less accurate to call that Report a Recommendation than it is to call it a "blueprint" for what's going to happen.

I know that anyone reading this who has ever been through the DUI process before, (whether for themselves of with someone else) knows this to be true. In fact, I can safely say to anyone who has been through the DUI process before that whatever was recommended in that Report was, likewise, ordered by the Judge.

This means that unless a person is charged with a DUI where the Evidence is weak enough to be dismissed by the Judge, or otherwise has a Defense to the charge strong enough to "beat" it at Trial, they will be undergoing this PSI. And it also means that when the test has been taken and the interview with the Probation Officer completed, the final outcome of their case will have pretty much been determined. The Probation Officer "scores" the person's alcohol test. All of these test are "graded" with a numerical score; generally, the higher a person's score, the more likely they are to have or to develop and alcohol problem. Conversely, the lower a person scores, the less likely it is that they have an alcohol problem, or have the potential to develop one.

]]> Obviously, the higher a person's test score, the more likely that they'll wind up in some kind of Counseling or Treatment Program. The whole goal, then, is to ensure that the Client does not score any higher than they should (or, to put it another way, to make sure they score as low as they can) on the alcohol assessment.

The interview with the Probation Officer is also important. Based upon the person's test score and their impressions of the person after the interview (sometimes together called a "screening") the Probation Officer will write up the PSI Report and Recommendation.

Thus, the difference between being well-prepared for this part of a case and not being prepared is significant. This is particularly the case because many of the "better" answers to give during the interview seem, at first glance, counter-intuitive. This is the bread-and-butter of my practice. Let me share an example of what I mean.

Say a person is pulled over and goes through the DUI process with a breath or blood test result of .14 (the period makes this hard to read, but that's "point one four"). An astute Probation Officer will, during the PSI interview, ask the person something to the effect of "How drunk were you, or how drunk did you feel?"

To which pretty much everyone, without knowing better, is likely to say "I didn't think I was that bad," or something like that. No one, after all, wants to look like an irresponsible and dangerous person. The problem with that answer, given the fact that the limit for DUI is .08 ("point zero eight") is that a person who says they were not very drunk is either minimizing the extent of their intoxication, or, if not, then has a "tolerance" and can handle their booze. In other words, a person who has answered this way has just starting digging a hole for themselves.

After I explain this to my Client, I help them remember that although, at the time of their DUI, their judgment was impaired to the extent that they could not properly determine that they had consumed too much alcohol to drive safely, in retrospect, they can see now that they were too drunk to drive. I show them that the "better" answer is something like "you know, it was late, I wasn't thinking clearly, and I just figured I could make it home without getting caught." That answer will neither cause them to be categorized as a person who is in denial, or untruthfully minimizing their condition, nor as a person who has, in fact, built up a tolerance to alcohol by drinking somewhat heavily. It may not sound as good coming out, but it is the better answer.

There is, of course, a lot to this. Preparing the Client for both the alcohol assessment (there's no single test; there are all kinds of different tests, with names like M.A.S.T. Test, SASSI, AUP and The N.E.E.D.S. Survey) and the interview with the Probation Officer is a big deal. It takes hours. Usually, I will begin the process the first time I meet with a Client (which is why my first meetings, or "intakes" run from an hour and a half to two hours) and go over everything again, before they have their PSI appointment at the Court.

They payoffs are huge. Since the difference between a tough Sentence and a more lenient one is really the product of what's recommended in the PSI Report, then it only makes sense, doesn't it, to make sure the Client does well at that stage of the case?

This article, is, of course, a very stripped-down, streamlined review of the whole process. There's a reason why my first appointment with a DUI Client takes about 2 hours, and this is it. But that cost in time is a solid investment against the cost of a condition-loaded, difficult term of Probation that requires Treatment or Counseling, especially if it could have been avoided in the first place.

Remember, the Judge is almost certainly going to follow the PSI Recommendation to the letter. When a person stands in front of the Judge to be Sentenced, it doesn't matter how charismatic or well-known their Lawyer may be, because the Judge is already set to follow that Recommendation. Anyone standing in front of a Judge at this point will have been far better served by having been well-prepared for the PSI process, and getting a more lenient Recommendation at the outset.

Criminal Charges in Michigan - I Have a Warrant for not Showing Up

2010-02-15T19:53:19Z

This article is a companion to a previous article about having an outstanding Probation Violation Warrant for not Reporting. In this article, we'll look at those cases where someone has, for lack of a more proper term, essentially "skipped out" or "bailed" on a Criminal case at some point in the process (even if it's because they never took the first step). This situation comes up often enough in my Criminal Practice to require some discussion. We'll be talking about those individuals who either did not show up to turn themselves in on a Warrant (either to a Police Station or to a Court) and were never formally Arraigned, or those individuals who have been Arraigned, and at some point in the Criminal Process, just failed to come back. Since I limit my Practice to Macomb, Oakland and Wayne Counties, we'll be talking about how things are handled within the Tri-County area.

In some cases, a person will receive a Notice (and this can take the form of a written Court Notice or a call from a Police Detective) that there is a Warrant for their arrest, and they need to turn themselves in. These "turn-in" instructions can require that the person either report directly to a Court, or to a Police Department. For whatever reason or reasons (usually because they're scared) the person will simply just fail to follow-up as directed.

In cases where a person has already gone through that first step of "booking" and/or Arraignment, a subsequent Court date is set, and the person is either personally informed of that upcoming date, or Notice is sent by mail.

In still other cases, a person may have shown up to a subsequent Court date. Perhaps they went to Court for their Pre-Trial, and they might even have worked out a Plea deal. At some point along the line however (often prior to their Sentencing date) the person just drops out of the picture.

Just as with Probation Violation Warrants, the outstanding Warrants in these cases are taken care of in 1 of 2 ways:

1. A person voluntarily turns him or herself in to clear things up, or

2. They get picked up by the Police.

I think it goes without saying that those in the first group will find themselves treated far more leniently than those in the second group.

]]> And just like Probation "absconders," rest assured that pretty much everyone who does get picked up by the Police on an outstanding Warrant for an unresolved Criminal case, and who is brought before a Judge, has the same story: "I was going to turn myself in, but..." or "I was planning on taking care of this..." or some other line that has to do with some un-performed plan to not let the case sit unresolved for as long as it did. In the previous article, I noted that if there was ever a time the term "bulls**t" applies, it's here, when the excuses to the Judge are flying fast and furiously.

When someone undertakes the effort to come back, however, and resolve an outstanding Criminal case, even though they essentially walked away from it before, they will always be treated with more understanding and sympathy than the excuse-maker that got picked up and who is talking fast, but explaining little, to the Judge.

This is not to say, of course, that a Judge will typically say "oh, no big deal...glad you're back, don't worry about it..." but it is to point out that when a person makes arrangements to walk into Court with, or at least on the advice and under the arrangements of their Lawyer, and address their outstanding case, they can pretty much bank on walking out the same door they came in through, as well. Any question about their intention to return to Court is, by and large, demonstrated by their voluntarily appearance to address the outstanding matter.

To help get a clearer picture of what goes on in these cases, imagine for a moment you are a Judge. On a busy Court day, a person and their Lawyer walk into Court and you are handed the file showing that the person skipped out on their case about a year ago, and that a Bench Warrant was issued for their Arrest. You will, of course, recall (or cancel) the Warrant, and you might just reinstate their old Bond, or, if that can't be done, issue a new Bond in an amount that the person can afford. The fact is, the person is there, in front of you, because they decided to clear things up.

Later that same morning, when the previous night's arrestees are brought in from lockup, you likewise have before you a person who skipped out on their case about a year ago. Without knowing anything else, you know they had some Police contact, and when their identity was discovered it also popped up that they had this outstanding Bench Warrant. And, as you can probably guess, just for kicks you ask them where they've been, and you hear the excuses start to fly, and some version of the "I was going to come in" line thrown at you, for good measure.

Do you think that, as the Judge, you would handle each of these cases in the same way? I'm sure you don't have to think either long, or hard about this one. It's a no-brainer. The voluntary surrender is walking out the front door, and the fast-talking arrestee is going out the rear door and back to the pokey with a big enough Bond to make sure that if it's posted, it will be too much money to just abandon by skipping out again.

In my practice, the majority of these cases I handle involve those who want to clear up the outstanding case and do so voluntarily. This process involves making some arrangements beforehand to make sure the Client can walk out of Court with me. This is why, for example, I never favor Friday surrenders; what if a person gets to Court and discovers that the Judge isn't there, but still gets held on the Warrant? They could get stuck until Monday! By making arrangements beforehand, that kind of problem can be avoided.

In the Detroit area, different Courts have different procedures for walk-in Arraignments. In some Courts, they're only done certain days of the week and at certain times. Other Courts will pretty much do it any day of the week, either in the morning or afternoon. Still other Courts will do it any day, but only between certain very early times in the morning. Having the Lawyer who'll go with you, or at least who will direct you, and who know these things in advance, can save a lot of frustration (translation- wasted day off, and/or getting locked up overnight...) later on.

From a Lawyers point of view, you want to direct the Judge's attention to the person's voluntary act of coming in as proof of their intention to return to Court, rather than let the Judge focus too much on the fact that they simply skipped out. Along with that, most Judges figure that if a person has plunked down some Retainer Fee to hire a Lawyer, it's further proof of their intention to, and investment in, wrapping things up.

I also get hired to represent people who have skipped out and finally get caught. In these cases, the first order of business is to direct the Judge's anger away from the fact that they simply bailed and never came back until they got caught to the usual reason for having done that, which is that they simply got scared, or panicked, and with every thought of turning themselves in came the equally-strong fear of what would happen. Look, I would be lying if I pretended that those who get caught will get the same breaks, at least as far as the outstanding Bench Warrant goes, as those who walk in on their own. Still, this isn't a time to roll over and play dead.

Perhaps the most significant point of this article is that if you, or someone you know, has an outstanding Warrant in a Criminal case, the faster they take care of it, the better. Things will always be better for those who voluntarily walk in (preferably with, or at least on the advice of their Lawyer) and take care of business than for those who get picked up and brought before the Judge in handcuffs and belly-chains.

Probation Violations in Michigan - I Stopped Reporting

2010-02-12T22:06:08Z

In previous Blog articles, I have discussed various aspects of Probation Violations, from the simple desire to stay out of Jail, or the imposition of too many conditions, to picking up a new charge while on Probation for another, to dropping a dirty urine. Since Probation Violations are a significant part of my Practice (at least my Criminal Practice), I very recently encountered another scenario that comes up quite frequently. This involves someone who simply quit Reporting to Probation, for one reason or another.

Let's define who we're talking about: a person on Probation who fails to report for some time, and is considered an "absconder" (kind of like a runaway). There are many reasons why this can happen. Sometimes, a person just plain misses, and then becomes afraid. Sometimes, a person has had Police contact, and doesn't want to either report it, or lie about it and not report it. Other times, a person may know they're going to test positive for drugs (or alcohol) and rather than face that music, just decides to bail out and deal with it later. The list could go on forever, but the point is that for some reason or reasons, the person has stopped Reporting to Probation. It doesn't take long, of course, for a Warrant to be issued charging the person with a Probation Violation.

For all of the reasons this can happen, and for all of the stories behind those reasons, there are really only 2 ways people resolve this situation:

1. Voluntarily turning yourself in to take care of things, or

2. Getting picked up by the Police on the Warrant.

Most often (but not always) I am called by people in that first group. They know they have some serious unfinished business to take care of, and they want the burden of this outstanding Warrant and all that goes with it to be lifted from their shoulders.

I think it's important to understand something about those people in the second group, who get picked up on the Warrant and brought before the Judge. Having sat in Courtrooms day after day after day for about 20 years, I know how these things work, and I know how Judges view them. And if there ever was a time to use the term "Bulls**t," it probably could never be more accurately applied to anything like it can to the excuses given by those Probation Absconders when the Judge asks them where they've been.

]]> Without fail, every last person brought before the Judge on an outstanding Warrant for failing to Report to Probation and who has been "on the lamb" for any amount of time will say something to the effect that "I was planning on taking care of this soon," or "I was going to turn myself in (insert time-frame here)." Imagine if you're the Judge: every single Absconder you ever see just happened to get picked up right before they were able to make their way to your Courtroom to turn themselves in.

Pretty much no one says something like "Gee, Judge, I know I screwed up, but I thought I'd just ride it out, and maybe I'd never get caught. I mean, I figured I was going to Jail anyway, so I also figured I'd rather deal with it later, if I got caught, rather than just walk right into it."

I've never seen that. The best I've heard is someone tell the Judge "I got scared."

And of course, the Judge says something like "And you thought it was going to get better by just letting it wait?"

To which the person usually, and somewhat sheepishly replies "...No, Your Honor..."

Now let's be honest. No Judge anywhere is going to look over the Bench at someone who took off for however long, then decides to turn him or herself in, and give them a gift certificate for being so upstanding. There are going to be consequences. It's just that the consequences for getting caught, as opposed to voluntarily coming in, are usually much worse.

When I get a call from someone in this boat, they very often have another, unfinished (but subsequent) case that needs to be taken care of. Or, they may have been on Probation in 2 or more different places. What I'm saying is that it's often complicated, or even quite messy. The Lawyer's job is to smooth things out, and keep the Client out of Jail.

I've said "lets' be honest" before, but here's another side to that honesty coin. As much as no Judge wants to be seen rewarding someone for Absconding from Probation, there is a certain, tangible degree of leniency and sympathy extended to those who do finally step up and address their problems. And beyond simple human compassion, I think there's another reason, as well, and that has to do with keeping the system moving along, as opposed to jamming it all up. Those who get picked up on a Warrant, and need to be brought before the Judge ASAP, certainly jam up the system. And while we're talking about them in being in front of the Judge, what do you think the Judge is going to do when deciding their Bond?

That's when all that "...I was going to take care of this as soon as...." BS amounts to the same noise that the Teacher in the Charlie Brown cartoons made. Remember her? Instead of talking, her voice was a trombone that went "wah wah wah, wah wah wah...."

The Judge is sitting there thinking "yeah, right. You were about to turn yourself in right before you got picked up. Well, I KNOW you'll be back for your next Court date, because your Bond will be high enough to guarantee that."

The voluntary turn-ins, however, have already demonstrated their intention regarding showing up for the next Court date by walking in on their own to start the process. Any concern about their intentions to Appear again has been answered by their very presence in the Courtroom. Very often, I am able to get Personal (or PR) Bonds for these Clients.

What's more, even if they did jam things up by originally Absconding, they are at least getting things moving again by walking in to resolve their issues.

For those that need to take care of an outstanding (and perhaps longstanding) Probation Violation warrant, I think it's imperative to have your Lawyer make arrangements in advance for your surrender. When a Lawyer walks a Client in, he or she will usually walk them out.

A notable exception to that rule of thumb applies, however, when there are multiple Warrants from different places. Say a person has a PV Warrant in Warren, and also has an outstanding Warrant in St. Clair Shores. Whichever Court the person goes to first will, by Law, be required to hold them for the other Court, even after the firt Court sets it's own Bond and Condtions. This is one reason why I always, and without exception, advise against Friday turn-ins. If everything that can get screwed up does get screwed up, at least there's no over-the-weekend Jail thing.

Once I've made arrangements for my Client, and after we've brought them in to have the outstanding Warrant(s) recalled, the matter will be set for a Probation Violation Hearing. My take on these is exactly that set forth in my other articles about Probation Violations, except that it's important to add to any explanation to the Judge whatever factors are relevant and helpful in addressing the absconder issue.

This means that if a person was supposed to take some classes, or do some counseling or community service, it sure helps things to come back to Court, after the Arraignment on the Warrant, and at least be able to say you've set up an appointment, or started, or registered with whatever you're supposed to do.

There's no denying that voluntary turn-ins will have an easier time of it, but even those who get picked up, once they've been Arraigned, should start doing some planning. Staying out of Jail is priority number one, but to accomplish that you need to start with an intelligent plan of action.

Driving While License Suspended - Multiple DWLS Charges in Michigan

2010-02-11T00:23:37Z

My Criminal Practice is made up, in significant part, of driving-related cases, from DUI, to License Restorations, to Traffic Tickets. Perhaps one of the most common Offenses I see is DWLS (Driving While License Suspended). In other Blog articles about DWLS and DWLR, I have discussed various aspects of these cases, from explaining the different terms used to describe this category of Offenses, explaining what happens in Court, to pointing out what the first thing anyone charged with such an offense should do.

In this article, we'll look at those cases where a person is facing two or more DWLS charges almost simultaneously. This happens a lot more frequently than you might imagine. Often, when I receive a call from a person facing multiple DWLS charges, they want to know if I can cut them some kind of "package deal" on the Legal Fees (and yes, I can and do).

Legal Fee "package deals" aside, the real problem is that there are generally no "package deals" available in Court, at least at the outset of these cases.

Perhaps the most common scenario for multiple DWLS charges involves a person who, for whatever reason, has their License Suspended and gets caught driving. Instead of following up on that charge, they let it slip their mind, and all but forget about it.

Until they are pulled over again, and find out that there is an outstanding Bench Warrant for their arrest because they failed to show up in Court for that first DWLS case.

Eventually, the person is released from custody, usually after being required to post a Bond for the first case, and a Bond for the new case, as well. They leave the Police Station with a notice to contact the Court in which their first, unresolved DWLS case is pending, as well as instructions for Appearing in Court on the new charge.

At this point, most people will look for a way to get these cases handled. Some people, however, will repeat this cycle of events any number of times before they get serious about fixing things up. I have been hired to represent people who have done this so many times that the last place they were arrested finally got so fed up with this pattern that they set a Bond too high for the person to post.

]]> There does come a point, after all, when even the most lenient Judge or Magistrate can figure out that the only way to get this person to show up and take care of these matters is to set a Bond either too high for them to willingly forfeit, or too high for them to make.

In a case of multiple DWLS charges, I think every Lawyer who knows his or her way around the Courthouse will agree that the chances of a more favorable outcome is increased when the same Lawyer represents the person in all the different cases. This is one scenario where, unless absolutely economically necessary, Court-Appointed Attorneys should be a last resort. I say this not as a knock to the skills of any particular Lawyer, but because as a person Appears in each Court, he or she will wind up with a different Attorney on each case. Given the economic pressures that Court-Appointed Attorneys face, there is just too little time, and too little incentive for them to listen to someone's whole story and take up the mantle of working out a "global" resolution amongst the various cases. A private Lawyer, will, however, seek to do just that, and discuss the resolution of one case with the Prosecutor handling another in an effort to work out something along the lines of a "package deal."

The cold truth of the matter is that each City is a separate entity. Just because one Prosecutor is more lenient and sympathetic to a particular person's plight doesn't mean the one in the next City will be the same. In practice, however, a surprising number of Prosecutor's are at least open to hearing about a proposed "global" resolution of all the cases. Sometimes getting the kinds of results that, for example, don't result in Additional Mandatory Suspensions, or the imposition of additional Driver Responsibility Fees, takes multiple trips to different Courts. But this sure beats the heck out of the alternative, which is, essentially, to take it on the chin.

As I have pointed out in other articles, the reason a person's License was suspended in the first place plays an important role in predicting the outcome of a DWLS case. No matter how you slice it, there are 2 classes of people who get DWLS (and DWLR, or Driving While License Revoked) charges:

1. Those whose Suspension is the result of a DUI, and

2. Everybody else.

It's far better to be in that second class, rather than the first. Everything else aside, a person whose License was Suspended due to a DUI case will always be treated less leniently (a double-negative way of saying more strictly) than a person whose License was Suspended for anything else.

Whatever the reason for the original Suspension, it is imperative to try and order the resolution of the cases in a way that, in the experience of the Lawyer, will produce the greatest chances of the most favorable outcome. Let me explain:

Say Dave the Driver has a Suspended License. Say he got a DWLS charge a little over a year ago, and he just didn't take care of it. Now, Dave is pulled over in another City, and is Arrested for a new DWLS. For our purposes, let's say his first, older DWLS occurred in City 1, and his most recent in City 2.

Dave's Lawyer knows that City 2 is fairly conservative and not know for being very lenient. Dave's Lawyer knows that if he can avoid having Dave Plead to a DWLS, and instead Plead to the reduced charge of No Valid Operator's License on Person ("No Ops"), Dave will not only avoid any Mandatory Additional Suspensions, but also any more of those expensive Driver Responsibility Fees. This means Dave can move on to getting his License back.

Therefore, Dave's Lawyer may want to wrap up a deal in City 1 first, because he knows he can get the "No Ops" there. He figures that when he goes to City 2, he can at least apply a little pressure and a little guilt-trip to that Prosecutor by implying that the only thing standing between Dave and his regaining a valid Driver's License is what that Prosecutor does.

Or, the case may be vice-versa.

The larger point is that Dave will be far better served by hiring his own Lawyer to do this, and hopefully he will have enough sense to make sure the Lawyer he hires knows not only this area of the Law, but the particular Courts in which his cases are pending.

This stuff isn't rocket science, but it is the kind of stuff where a person should make sure their Lawyer is on familiar ground, and has experience with all the parties involved.

For my part, I limit my Practice to Macomb, Oakland and Wayne Counties. Trying to be a statewide practitioner may result in a little experience in a lot of places, but, as far as producing good results for the Client, I think it's better to have a lot of experience in fewer places.

Probation Violations in Michigan - I Missed a Urine Test

2010-02-08T20:38:05Z

In other Blog articles about Probation Violations, I have pointed out that the person facing the Violation faces an uphill fight. By and large, a person gets Violated for doing something they shouldn't have (like pick up a new charge or test positive for drugs), or for NOT doing something they were supposed to (like fail to show up for a urine test, or "drop").

This article will focus specifically on those cases where a person has missed a urine test. If this applies to you, hopefully you're reading this before you ever receive notice from the Probation Department of a Violation or Show Cause (another fancy name for Probation Violation).

I say that because there are some things to do to minimize the damage caused by a missed "drop." If a person has waited until they hear from the either the Court or the Probation Department, the ability to take protective action diminishes considerably.

To begin with, it really doesn't matter where the urine test was to be provided. Many Probation Departments have a person go take their tests at a "facility" such as JAMS, Drug Testing Services, Inc., or Michigan Court Services, Inc. JAMS is by far the most popular facility in the Tri-County area. Other Probation Departments will administer their own breath or urine tests, and send the urine out to a laboratory for analysis. Some Courts even order people to report to their local Police Department to have a breath test done on a daily basis, but that's not the subject of this article.

Whatever the scheme, a miss is a miss.

In my practice, I hear all kinds of stories about how a person called their Probation Officer to explain why they missed, or called beforehand to tell them they couldn't make it. Sometimes, a person will tell me that they left a message for their Probation Officer explaining the situation, and because the Probation Officer didn't call back, they assumed that everything was okay. Other times, the person tries to contact the facility to "make up" the missed test, only to be told that there's nothing that can be done, and the Probation Officer has been notified of the miss. While many of these stories are true, we come back to the same point made above: a miss is a miss.

And that point really hits home when that miss is the reason for a Probation Violation.

So what should a person do when they miss a test?

]]> Get another, right away. Even if a person has to go to another Clinic, like Clinton Counseling in Mt. Clemens (2 Crocker Boulevard, Mt Clemens, MI 48043-2558 (586) 468-22662), or try to have one done at another substance abuse treatment place, they should do so as soon as possible.

It is a given that Judges treat missed tests as positive tests. Let's face it, while there may be legitimate reasons why a person missed, it is well know that people will try and deal with that situation later when they know that any given test will turn up positive. Thus, many Judges will even forewarn a Defendant that a missed test will, in fact, be treated as a positive test.

If a person can at least come to Court and show that within hours of the missed test, they took one, and it came back clean, they have a leg to stand on while in Court. This doesn't change the fact that they missed a test, and many Judges will point out that the terms of the order of Probation were set by the Court, and did not contain any "if you miss, then you can go here, instead" provisions.

Still, when I represent someone who has missed a test or tests, if I can at least show that later that same day, or early the next, my Client had the foresight to go and get a test done, and that test is clean, it at least begins to remove some doubt about the person's not being clean, and allows me to work on the Judge to reset my Client's Probation without locking them up or extending their Probationary term.

Of course, there will always be cases where the person who missed the test left that message for their Probation Officer and who, not having heard back, assumed they were alright. Even if they only find out that there's a problem when they receive notice of a Violation, it cannot hurt their cause to go and get a urine test right away.

Although the half-life of metabolites of different drugs vary widely, it is generally understood that marijuana stays in the system for 30 days. This means that if a person is to provide a urine sample which includes testing for tetrahydrocannabinols, the active ingredient in marijuana, and even if they miss a test, another test within a week or two (or even longer) still has some evidentiary value.

The point here is that no matter what, if a person misses a urine test, they should go and get a substitute test done somewhere as soon as possible, if not right away. As I noted above, doing this cannot hurt, and usually helps.

Michigan Driver's License Restoration - Gambling on an Administrative Review

2010-02-05T21:41:48Z

Filing for an Adminstrative Review may be the ultimate shortcut to losing a License Appeal in Michigan. As a Driver's License Restoration Attorney, my reasons for urging caution with this process might not be what you'd think. Sure, you might figure that there's no way some guy who gets paid to represent people in License Restorations would ever encourage them to try it themselves, because that's essentially taking money out of his pocket.

The truth is, I am and always have been a big believer in self-help. I have never made a living doing for others what they can effectively do for themselves. The principal reasons I am not a fan of the Administrative Review process have to do with the high number of unsuccessful Appeals, and the fact that whatever causes a person to lose is yet another obstacle that needs to be overcome in the next Appeal. In a recent Blog article, I discussed the general idea that after a loss, winning an Appeal becomes even more difficult. While not focusing so much on the Administrative Review process, I did point out in that any License Appeal, whatever is filed with the State, or is brought out at the Hearing (win or lose), becomes part of the Record of the case and follows the person through all subsequent proceedings.

This means that the reasons for a Denial in an Administrative Review don't go away when a person files his or her next Appeal. Let's look at an example: Say a person loses their Administrative Review because their Substance Abuse Evaluation wasn't adequately favorable, or was otherwise inconsistent in some regard (a problem which is far more common than you might think, especially for those Substance Abuse Evaluations done by Counselors who do not regularly do them for the Michigan Secretary of State Driver's Assessment and Appeal Division Hearings).

When a person files for their next Appeal, the first thing the DAAD is going to look at is the order denying that first Appeal, and see if whatever was cited as a reason for that denial has been properly addressed and corrected.

Thus, if within that previously-submitted Substance Abuse Evaluation a person's "Prognosis" for continued abstinence from alcohol was not good enough, the DAAD is going to want a very clear explanation at the next Appeal about why it has become better. In other words, just submitting a better Evaluation with a more favorable "Prognosis" the next time won't cut it. One or the other Evaluation is wrong, and one or the other is accurate; a person filing a second Appeal after a loss is going to have to clearly explain this apparent contradiction.

]]> To make matters worse, the person Appealing a second time has to contend with the fact that in the Administrative Review questionnaire, they were asked the following:

20. Do you agree that the substance abuse evaluation about you accurately describes your alcohol/controlled substance use history and your current status? If no, please explain.

As you can see, if you said "yes," then explaining the difference between an unfavorable first Evaluation and a subsequently favorable one is all more difficult in light of that "yes" answer.

Likewise, if you said "no" in answer to that question, then your Appeal goes down the drain before the starting bell, because if the DAAD cannot find that Evaluation to be accurate and credible, you have failed to prove anything about your case.

And beyond being "stuck" with the shortcomings of a prior Appeal, a person filing for their second Appeal still has to meet the standard of proving their case by "Clear and Convincing Evidence." Remember, the DAAD is required to decide Appeals under "Rule 13," which requires the Hearing Officer to Deny the Appeal unless the person filing proves the following issues by "Clear and Convincing Evidence."

Here is the relevant portion of Rule 13:

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.

Filing a second Appeal is not the time to learn the nuances of this Rule, especially when you have the problems of the first, losing Appeal to overcome.

Beyond all of this, the questions asked on the Questionnaire portion of the Administrative Review application can be a huge problem. Let me explain.

When a person files for a License Appeal due to multiple DUI's, Michigan law characterizes them as a "Habitual Offender." This means, in practice, that a person filing a License Restoration Appeal will be presumed to have an alcohol problem. And, as I observed in another prior License Restoration Blog article, I have never seen, nor have I ever even heard of anyone winning a License Appeal by arguing that they don't have some degree of an alcohol problem. There isn't any amount of money that would convince me to represent someone before the DAAD who wanted to argue that, despite 2 or more prior DUI's, they don't have any kind of drinking problem. That's a guaranteed loser.

Therefore, in order for me to represent someone in a License Appeal, I need to have my Client be able to testify that they have quit drinking. On my website, I point out that a person can only "quit" drinking once; all previous but unsuccessful attempts can only be characterized as having "stopped" drinking for a while.

Yet the question 15 of the Administrative Review questionnaire asks the following:

15. Describe your current drinking habits and controlled substance use in detail. Include how often you use alcohol and/or use controlled substances, what kind(s) and the amount typically consumed/used per occasion.

So if a person answers that they only drink a beer or glass of wine on special occasions, they have effectively lost not only the Administrative Review, but any subsequent Appeal until they can come back and admit to an alcohol problem, and describe what they've done about it and how they've made the transition to an alcohol-free lifestyle. For all of that, they can forget about having a License for at least the next several years.

There are, of course, more risks associated with an Administrative Review. The purpose of this article was to point out a few of the more significant concerns I have about the whole Administrative Review process so that the reader may at least get a sense of the risks involved.

Still, there are bound to be plenty of "do-it-you-selfers" out there. Heck, that's what keeps Home Depot in business. But just like a plumbing job that someone tries on their own and can't complete, getting a professional involved to finish the job often involves the additional work of undoing the damage done by the person who first tried it on their own.

Are there cases which I think a person can file and win on their own? Sure, but even for those who otherwise meet the criteria of winning a License Appeal, they have to be sure that everything is "just right" with their documentation to prove their case by "Clear and Convincing Evidence." Given that I will only refer my Clients to 2 or 3 places to get a Substance Abuse Evaluation done (based upon my experience that the vast majority of them are not good enough), there is certainly a significant element of luck involved with an Administrative Review that can be completely eliminated when a qualified License Restoration Attorney handles a License Appeal from start to finish.

Even for those who try it on their own and lose, however, the good news is that you can immediately file for an in-person Appeal and Hearing. If the problems that caused you to lose in the first place aren't so bad, or of the kind that would otherwise mandate that you wait a while, then things are far from hopeless. The question you need to ask yourself, however, is if it's worth the gamble.

At the outset of this article, I pointed out that the reader may wonder if my reasons for not being a big fan of the Administrative Review have to do with a potential loss of business. Now, as I've (hopefully) shown why that's not the case, let me let you in on a little secret: Those who file on for an Administrative Review and lose are simply the best and easiest possible Clients to have. When they call, there's no question on their part that they need and want professional help, and when they come in for their first appointment, to prepare for their Substance Abuse Evaluation (a 2 and-a-half to 3 hour appointment, by the way) they are all ears and ready to follow directions.

Michigan License Restoration Appeals - Revoked Until the Distant Future

2010-02-04T00:38:19Z

This article will focus on License Revocations that occurred after January 1, 1992, but prior to October 1, 1999, when Michigan's Habitual Offender Drunk Driving Laws went into effect. This Blog article follows one about Licenses that were Revoked, prior to 1992, for multiple Drunk Driving convictions. As a Lawyer who concentrates a significant part of his Practice in License Restorations, my experience with Suspended and Revoked Licenses pretty much runs the gamut of possible circumstances and situations.

Prior to the Habitual Offender Laws of October 1, 1999, a person who was caught Driving on a Suspended or Revoked License was punished by having their License Revoked for an additional number of years similar to whatever their then-current suspension or revocation period was. In other words, if a person had been revoked for 5 years for 3 DUI's within 10 years, then a Driving While License Suspended/Revoked/Denied (DWLS/DWLR) conviction would automatically get another 5 years tacked onto that Revocation. And this kept adding up for every DWLS/DWLR case they got. The end result was that some people were Revoked for 20, 30, or even more years!

In 1999, the Habitual Offender Laws, which made pretty much everything connected with Drunk Driving even tougher, did, however, lighten up the penalties for what are known as "Mandatory Additionals." Instead of compounding Revocations until the end of time, that same person who was Revoked for 5 years (due to multiple DUI's within 10 years) and who got another DUI would simply be Revoked for 5 years from the date of his or her last conviction.

This was great news for anyone arrested after October 1, 1999, but kind of shut out in the cold anyone whose arrest occurred before then. In particular, it tended to treat more harshly (or at least it appeared to) those whose Revocations occurred from January 1, 1992, up to September 30, 1999. Those whose DUI's occurred before the 1992 laws went into effect were still eligible to file and Appeal in the Circuit Court in the County in which they lived, and to have a License Restored based simply upon their need for one. This was known as a "Hardship Appeal."

The "Hardship Appeal" was completely and totally eliminated by the 1992 laws. When the Repeat Offender Law became effective on October 1, 1999, one of the big changes was that anyone who got another DUI, even if it was their 5th, or 15th, or 20th, would still be eligible to file a License Appeal 5 years from their last one.

]]> Which tended to suck for someone who had any "Mandatory Additional" Suspensions or Revocations that occurred after January 1, 1992, but before October 1, 1999. Those with multiple DUI Revocations from before 1992 could at least run to Court and file a Hardship Appeal, and cases from after October 1, 1999, were not subject to the "piling on" or consecutive effect of those mandatory addtionals, but for anyone who had them between those dates, they could neither seek a Hardship Appeal nor would they get the benefit of having each period of Revocation run concurrently. It wasn't and still isn't uncommon to come across someone whose License had been Denied and Revoked for 20 or 30 years.

Fortunately, the Habitual Offender Laws of 1999 were NOT retroactive. While the explanation is long and somewhat complicated, the bottom line is that anyone whose License was Revoked (or Suspended) prior to October 1, 1999, can still go to Court and seek to have all of those "Mandatory Additional" Revocations (or Suspensions) set aside, so that they may at least begin the Process of pursuing a License Restoration Appeal.

I have done this on multiple occasions, and I have yet to run across a Judge who will not go along. Once the Judge is made to understand that he or she is not giving the person any kind of License, but rather just clearing the way so that they can file a License Appeal with the Secretary of State's Driver Assessment and Appeal Division (DAAD), they not only lose any reticence about doing so, but usually wish the Client good luck with their Appeal.

So to be clear, for those old cases still out there, here's the breakdown:

If your last DUI was prior to 1992, you can go to Court and Petition for a License based upon the Hardship that not having a License causes.
If your last DUI was on or after January 1, 1992, then you cannot file any kind of Hardship Appeal, either in Circuit Court, or with the Secretary of State. Hardship is not a valid issue for any License Revocation that occurs as the result of a DUI conviction on, or after January 1, 1992.

If you have been penalized with "Mandatory Additonal Suspensions or Revocations from before October 1, 1999, then you can go to Court to have them set aside (wiped away) so that you can file a License Restoration Appeal.

As long as your last DUI was prior to 1992, even if you were penalized thereafter with "Mandatory Additional" Suspensions or Revocation, you can still go to Court and have them set aside and, if you win, then proceed with a Hardship Appeal in Circuit Court.

If your last DUI was on or after January 1, 1992, then once the "Mandatory Additionals" have been set aside, you can then file a License Restoration Appeal with the Secretary of State's DAAD.

Even after the 1999 laws, Mandatory Additional Suspension can be appealed to the Circuit Court, but those things rarely are an issue for drivers with multiple DUI's.

Driver's License Restoration in Michigan - Can I go to Circuit Court for a License?

2010-02-01T21:33:22Z

As a License Restoration Lawyer, I help people understand the License Restoration process and answer lots of questions about it. It has been my hope that the numerous articles on the Blog in the Driver's License Restoration category can help explain the process and answer many of those questions.

One question that comes up quite frequently from people who've had their License revoked because of multiple DUI's is something like "Can't we just go to Court and get some kind of Restricted License?"

Generally speaking, the answer is "no," but there is an exception, although it applies to a small, and shrinking group of people. The reason I point it out is that in the last year alone, 2 of the License Restorations I handled fell into this category.

For anyone whose last DUI occurred in 1991, or earlier, then the possibility of going to Court and getting a License Restored does legally exist. If a person's last DUI occurred in 1992, or any time thereafter, then there is NO possibility of having a Revoked License Restored in Court.

Here's why: In 1992, new DUI laws went into effect that completely eliminated what were known as "Hardship Appeals" in License cases. A Hardship Appeal simply meant that a person whose License had been Revoked for multiple DUI's could go to Court, and demonstrate how not having a Driver's License was a hardship upon them, and ask the Court to grant some kind of License. That whole process was eliminated by the 1992 law, and from that point forward, any new License Revocation could not be undone except by a License Appeal to the Michigan Secretary of State's DAAD (Driver's Assessment and Appeal Division, which was then known as the DLAD, or Driver's License Appeal Division). Beyond where the Appeal was to be filed, the whole hardship thing went out the window. In other words, it couldn't matter less how difficult life became without a License. Hardship was no longer a basis, or even part of one, for a multiple DUI Revoked License Appeal. New rules governing License Appeals went int effect.

]]> In order to win a License Appeal from 1992 forward, an Appeal for a License Restoration was completely governed by the following DAAD rule (known as Rule 13):

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.

In other Blog articles, I have examined and explained this rule in detail, and an examination of it is not relevant here, except to point out that this whole big thing is what took the place of simply appealing to a Court and showing how badly a License was needed.

If you think about it for a moment, you begin to see that nearly 20 years have passed since the law changed. In practice, this means that the majority of the Judges an otherwise eligible person would appear before haven't been Judges since before the law changed. In fact, may of them weren't even Lawyers yet. I was admitted to the Bar in 1990, just 3 years before the law changed, and I'm considered a veteran Lawyer. This means that even if a person is eligible to appeal to Court for a License Restoration because their last DUI occurred before 1992, there's a darn good chance that any Judge to whom their Appeal would be assigned is unfamiliar with the applicable law, and has never done one of these before.

Those two cases I mentioned earlier each stands as a good example of how this can play out.

In the first case, my Client, a 60+ year-old grandmother, had lost her License back in 1991 for multiple DUI's. She had been married, and her husband had driven her wherever she needed to go after her License was yanked. That worked well, until he passed away, and she was suddenly without a ride to take her anywhere.

She had multiple "Additional Revocations" which made her ineligible to file for a License Appeal until the year 2035. Yes, you read that right. And that whole topic will be the subject of the next article on this Blog. Because those extra-long Revocations became obsolete in 1998, due to another change in the law, she was eligible to file an Appeal to set aside those Revocations, which, if she won, would at least allow her to at least file thereafter for a License Appeal. So that was our first move.

My Client lives in Wayne County, so her first Appeal, to set aside those additional long-term License Revocations, was filed in the Wayne County Circuit Court. Wayne County is still, by far, the biggest of the 3 Counties, with the biggest Court, to boot. Yet even there, when we appeared before the Judge, he was somewhat unfamiliar with the law in this area (look, I specialize in this stuff, but except for those who do this stuff all day, it's not a common or regular thing). Fortunately, the Michigan Attorney General was there, as well, and confirmed to the Judge that he could do what I was asking him to do. The Judge did, then set aside my Client's other License Revocations, thus making her eligible to file a License Appeal. As we discussed it in Court, it became obvious that the Judge had had enough of learning the law, and clearly "suggested" (his words, not mine) that any License Appeal be filed with the Secretary of State, who also and always has jurisdiction over License Appeals.

Because of the way Courts work, the License Appeal I would have filed in Court would have automatically been assigned to that same Judge. And he had made clear that he didn't want to deal with it, so my Client and I instead filed her Appeal with the Secretary of State, Driver Assessment and Appeal Division (DAAD). Of course, in dong this, we were not able to avoid certain requirements that we otherwise could have if the Court had heard our case, but I knew the Judge's "suggestion" was his way of saying "don't come back."

As it turns out, we won the Appeal before the Secretary of State, and my Client was finally re-licensed after nearly 20 years.

In the other case I mentioned, my Client was just plain eligible to file for a License Appeal in Court. He didn't have any additional Revocations, and because his last DUI happened in 1991, had been eligible to appeal since about 1996. We filed his case in the Macomb County Circuit Court (across the street from my office) and were assigned to a Judge who has been on the bench for less than 10 years. This Judge is very diligent, and at least read up enough to know about the particulars of a law that changed before he ever even got out of college, much less law school. He heard our appeal, and granted my Client his License based upon a showing of a hardship. Of course, the fact that my Client had not had any legal troubles since his last DUI nearly 20 years ago, and could honestly tell the Judge that he had gotten sober many, many years ago, and was committed to sobriety for the rest of his life, surely helped.

As we have seen, if a person has had their License Revoked for 2 DUI's within 7 years, or 3 or more within 10 years, and the last DUI occurred before 1992, they are still technically eligible to file a Hardship License Appeal in the Circuit Court for the County in which they live. In most cases, I would probably suggest going to Court first, as the standards by which any License is granted is, at least technically, a bit easier.

Anyone whose last DUI happened in, or at any time after, 1992, however, cannot appeal to Circuit Court, and must file a License Appeal through the DAAD.

In our next article, we're going to examine the "gap" provision regarding License Revocations that occurred between 1992 and 1999 and see how pretty much all License Revocations that occurred after January 1, 1992, but prior to October 1, 1999 can be set aside, so that a person can at least clear the way to file a License Appeal with the DAAD.

Driving While License Suspended or Revoked - a Return to Forever

2010-01-29T23:29:02Z

In the previous article on this Blog, we examined the difference between Misdemeanor and Civil Infraction Traffic Offenses, and learned that Misdemeanor Traffic Offenses can NEVER be removed from a person's Criminal Record. In this article, we'll look at the consequences of that permanence, and see how it applies in the real world.

As a practicing Criminal Defense Lawyer, I spend a lot of time in the Metro-Detroit area Courts. A recent experience in a city outside the Suburban-Metro area (hereafter referred to as the "other place") serves as the inspiration for this installment. To be fair, I cannot say where this case was handled, other than to point out that it was not in Macomb, Oakland, or Wayne County. In fact, an experience like this tends to reinforce my general policy to limit my Practice to the Tri-County area, with certain, limited exceptions. And I got into this case as one of those exceptions.

My Client was charged with Driving While License Suspended, Revoked or Denied (DWLS/DWLR), 2nd Offense. His last DWLS/DWLR conviction occurred more than 10 years before this most recent charge. He has 4 total prior DWLS/DWLR convictions. His License was Revoked due to several DUI convictions, the last also occurring nearly 10 years before this arrest. To be clear, his last DUI did, in fact, occur after his last DWLS/DWLR case.

Somehow or other, my Client was able to get a License from another State right after his last DUI conviction (definitely an error on that State's part), and returned to Michigan for a visit a little over 5 years ago, when he held the then-valid, out of State License. He got pulled over in a local city, and because his Michigan License was revoked, was still cited for DWLS/DWLR. He returned to the other State without taking care of this Michigan matter, and all but forgot about it.

Until he got arrested for DWLS/DWLR in the "other place." When his LEIN record was run, it came up that he had an outstanding Bench Warrant for his failure to show up to Court for the local DWLS/DWLR case. The end result to all this was that he had to post a Bond for the Old, local case, as well as the new, "other place" case.

]]> Because of the way things worked out, the "other place" Court date came before the one in the local Court. I dutifully appeared in Court and met with the Prosecutor for that County. He was a nice enough guy. He heard me out about my Client's situation, and expressed his understanding. He agreed to reduce my Client's charge from a 2nd to a 1st Offense (the maximum possible sentence for a 2nd Offense is up to 1 year in Jail, whereas for a 1st Offense, the maximum is no more than 93 days in Jail), but pointed out that he did so very reluctantly, because my client had so many prior convictions.

I politely, but proudly pointed out to the Prosecutor that it had been nearly 12 years since my Client was last convicted of DWLS/DWLR.

The Prosecutor then politely, but properly pointed out that unlike a 2nd offense DUI, which must occur within 7 years of the 1st in order to count as a prior, there was no such time limitation with DWLS/DWLR cases. While I knew this to be true, it has also been my experience (pretty much all of which has been local to the Detroit-area), that convictions this old are generally not counted against a person who has remained trouble-free for so long.

He then pointed out (and I later confirmed) that the Judge to which my Client's case had been assigned is known as being VERY tough, especially on DWLS/DWLR cases that can trace back to a DUI Suspension or Revocation. He further told me that our Judge will often sentence people to the maximum Jail term allowed by the Law. In the local Courts, keeping the Client out of Jail in a case like this is usually not hard to do.

So I begged and argued and whined a while longer, and he told me the best thing he could do (that the Judge would likely follow) was to recommend a "cap" of 30 days in Jail as the maximum for my Client. This is where my jaw almost hit the ground.

While that doesn't mean that my Client will necessarily go to Jail, in any local, Detroit-area Court I'd expect to at least get the Prosecutor to agree to a recommendation of "No Jail" or "No Objection to Probation Only."

In an earlier Blog article, I noted how all DWLS/DWLR cases fall into 1 of 2 categories:

1. Those for whom the Suspension or Revocation is the result of a DUI, and

2. Those that aren't.

We further learned that anyone who lost their License because of a DUI who and has been charged with a DWLS/DWLR can expect to be treated more severely than a person whose License Suspension is the result of an unpaid Traffic Ticket. And make no mistake about it, my Client fell into that 1st category.

That said, there does come a point (at least one would hope), when enough time has passed to allow any anger toward the Driver to subside, especially when he or she has otherwise remained out of trouble. I call this the "dog poop rule." Even though I don't have a dog, I know that if someone comes home, opens their front door, and sees Fido squatting in the middle of the living room, leaving a "deposit" on the carpet, he's going to be in a LOT more trouble than if when moving furniture, the person discovers Fido had a little "accident" a long, long time ago.

The same thing usually applies in Court. At least it does locally.

In the "other place" Court, not only did they not care how long my Client had been trouble-free, they still held firm to the fact that this all started because he lost his License for multiple DUI's. Sure, he got a break, and apparently a pretty good break by the local standards of that "other place." In the Tri-County area, however, I would have expected that the charge could be reduced to No Operators License On Person (No Ops), at least in most Courts. And in pretty much every local, Detroit-area Court, while my Client would certainly not get a pat on the back and an "atta boy," he definitely would have been treated less severely than he was in the "other place."

I suppose there are several "morals" or conslusions to this story:

1. All Traffic Misdemeanors stay on your Record forever.
2. Any DWLS/DWLR conviction can be used as a "prior" offense, no matter how long ago it occurred.

3. If a DWLS/DWLR conviction is the consequence of a prior DUI, or multiple DUI's,
things are worse than if the DWLS/DWLR are the result of anything else.

4. Because each of the Local (Macomb, Oakland and Wayne) County Jails is either
overcrowded, or nearly overcrowded, DWLS/DWLR cases are not given priority for
incarceration. Other Counties think differently, and have the available Jail space to
spare.

5. Don't drive without a License. If you do, stay in the Detroit-area.

Misdemeanor Driving Offenses - On Your Record Forever

2010-01-27T21:21:22Z

We've all heard the term "Traffic Offense." Usually, it's used to denote a legal problem of relatively minor significance. Sometimes the term "Traffic Offense" is improperly used as a synonym for "Traffic Ticket." While all Traffic Tickets, are, by their very nature, Traffic Offenses, not all Traffic Offenses are merely simple Traffic Tickets.

Traffic Offenses can be divided into 2 categories: Civil Infractions and Misdemeanors. Civil Infractions are Offenses which DO NOT carry any possible Jail term. Most, but not all, Civil Infractions carry Points, which are applied to a Driver's Record, plus fines. Think Speeding Ticket.

Traffic Misdemeanors, on the other hand, DO carry a potential Jail Sentence. In addition, many, although not all, Misdemeanor Traffic Offenses carry Points, as well as fines and Court costs. Think DUI and Suspended License charges.

In my Criminal Practice, the general lack of clarity regarding a "Traffic Offense" comes up in many different ways. Let's look at a few examples.

When someone hires me because they've been charged with a crime, and I ask if they have any prior Criminal Convictions, I often get a response like "no, just some Traffic stuff." But as we've seen, some Traffic Offenses are Civil Infractions, and others are Misdemeanors. All Traffic Misdemeanors are, first and foremost, Misdemeanors, meaning they are Criminal Offenses. A person convicted of a DUI, or Driving While License Suspended charge does, in fact, have a "prior," or "priors." A person with 100 Speeding Tickets, but no prior Misdemeanor of Felony convictions, (Traffic or otherwise), despite being a lousy driver, does not have any "priors."

Here's where it gets tricky: Traffic Misdemeanors can NEVER be removed from a person's Criminal Record. While even a Delivery of Heroin Felony conviction can be set aside, by law, no Traffic Misdemeanor can ever "come off" a person's Record. Traffic Misdemeanor are worse than bad tattoos; at least a tattoo can be removed, even though the process is painful.

]]> If a person contacts me about an "Expungement" (technically called a Set-Aside of Conviction), and I ask if they have any other Criminal Convictions, besides the one they want "expunged," I'm often answered with a "nope. That's the only thing I have." After a few more questions, however, I learn that the person cannot qualify to have a matter removed from their record because they actually DO have another prior Criminal Conviction. It's that pesky "Traffic Offense" Misdemeanor (such as a DUI or Suspended License case) that they didn't realize stays on their Record forever.

Civil Infractions have their own way of "coming off" a person's Driving Record. First, remember that Civil Infractions are NOT Criminal offenses, so they're only reported on a person's Driving Record. After 2 years, the State drops the Points associated with any Civil Infraction. And a Driving Record, at least as far as Civil Infractions are concerned, only goes back 10 years. This means that a person who gets a Speeding Ticket for 20 MPH over the limit will have the Points count on their Driving Record for 2 years (Insurance Companies count them for 3 years; that's another story) and the violation will show up for 10 years. 11 years after that Ticket, even if a Police Officer runs the person's Driving Record as part of a Traffic Stop, the old 20-Over Ticket will not show up.

If there's a moral to this story, I suppose it's twofold: First, know the difference between Civil Infraction and Misdemeanor Driving Offenses, and Second, know that a Misdemeanor Traffic Conviction stays on your Criminal Record, like a bad tattoo, forever, and can never be removed.