Michigan Criminal Defense Lawyer Blog

How to Read and Use This Blog, the Topics Links and the Cross-References

2010-03-12T22:07:28Z

This article is really an interruption in a larger series about Suspended and Revoked Driver's Licenses. The reason I'm doing this is to make sure the reader understands how these Blog articles are categorized, and so that they know that most articles here connect with other articles, or even series of articles, and, if read together, can provide a comprehensive analysis of how certain things work (or at least how I handle them).

Most often, the reader will wind up here because of a search-engine query. Often, the reader will be taken to an article that directly relates to the topic (like DUI, Drug Cases, or License Restorations) they're searching. Sometimes, however, a person might wind up on either the most recent article posted, or some other article, neither of which have nothing to do with what they're looking for.

I'm no web master, so I can't really explain how that happens. I do know, however, that despite whatever article a person may wind up on, even if it doesn't relate to their search, it usually means there is another article on this Blog which does. In other words, if a person has searched for "Delivery of Marijuana Mi" and then winds up on this article, because it's the most recent entry, the search engine didn't exactly fail, it just didn't go to the actual article about "Delivery of Marijuana in Mi." That's what the column on the right side of this Blog is for.

That column, about ¼ of the way down on the right side of this (or any) page, lists all the articles I've posted by Topic. Thus, the person who winds up on this article but was searching for Marijuana Delivery would scroll down and click one of the listings for Marijuana.

Within the framework of those Topics, every article has, at the bottom, a listing of other topics in which that same article can be found. This is how I, as the author, have cross-referenced Topics. This means that a person wanting to learn all they can about one Topic should also click on those other Topic listings, because those other topics also have related information in them.

Also, a number of my articles are written in multi-part series. The way the site works, the newest articles are always listed above the older one. This means that every series of articles is kind of listed in reverse, or newest first, oldest last. Thus, Part 1 of any series is always at the bottom.

]]> In each article, certain words appear in green. These are external links. Some links go to relevant pages of my website, some to related or connected Blog articles, and others go to outside sources, such as the Michigan Secretary of State's website, or the "official" listing of retain my services. When I've asked what they read, I'll discover that they haven't yet read beyond that one article, and have missed much more information that they'd likely find helpful.

Other times, I am delighted to find that a person has read all of the related material and has a good understanding of things.

Listen, whatever I else, I put my heart and soul into this Blog. When I was first presented with the idea of Blogging, I began searching around, and what I discovered was, frankly, disappointing. Most of the legal Blogs were old news stories, poorly retold, with some Lawyer's (often useless) opinion added in. Others discussed technical legal stuff that no one (not even me, as a Lawyer) could care less about. Wow. Here's an article about some obscure Supreme Court ruling which "clarifies the rights of illegal immigrants caught trying to cross the border and their right, in certain cases, to pre-interrogation legal counsel. Zzzzzzzzz. Wake me up when that one's over.

Still, I though about it, and set out to write articles which seemed relevant to the questions I'm asked, and the situations I deal with every day. I limit my topics to the areas of Criminal Law, DUI and License Restorations that I handle. I try to leave opinion out, except to note how I see things work and how I handle them.

And, to pat myself on the back a bit, I've found no other Blog or Website that even comes close to the real-life discussions of real-life topics that are posted on this Blog. I may not be a particularly talented writer, but I try to write with the same "voice" with which I speak.

My point, after all this rambling, is to ask you, the reader, to do me a favor; use the Topics listing and the categories links and read as much as you can about the subject that got you here.

Or not. But beware, because if you call to hire me, I'll usually ask what else you've read, and if I find you haven't done all your homework, I'll tell you to read what an old radio commentator called "the rest of the story."

Thanks for checking in, and stay tuned.

Driving While License Suspended 2nd or Subsequent Offense in Michigan (Macomb, Oakland and Wayne County) - Part 2

2010-03-10T19:28:57Z

In Part 1 of this article, we began reviewing DWLS 2nd (and Subsequent) Offenses. This article picks up where the previous one left off. We'll examine how a Lawyer approaches and handles DWLS 2nd (and Subsequent) cases, and how, with each successive prior DWLS conviction, a person edges closer to actually getting locked up for this charge. As in the previous article, we'll simply use the term "DWLS 2nd" or "DWLS 2nd Offense" to mean both an actual 2nd Offense, meaning a person has only 1 prior DWLS conviction, as well as all "Subsequent" Offenses, where a person has 2, 3, or even more prior DWLS convictions.

In my Practice, DWLS 2nd Offense cases are handled much like 1st Offenses. When I am hired by someone to handle a DWLS 2nd, I fist want to know why their License was Suspended. As much as we've talked about DUI's, the most common reason for a License Suspension stems from either an unpaid Traffic Ticket or Tickets, or unpaid Driver Responsibility Fees.

If at all possible, the first thing a person with ANY Suspended License charge should do is clear up whatever it was that caused their License to be Suspended in the first place. Obviously, if the reason is for a DUI, all the person can do is wait. If the Suspension is the result of an unpaid Ticket or Tickets, then the person should pay them, or at least begin scheduling Court dates or work out some kind of payment plan to at least set the ball in motion.

The reason this is so important is that, as a Lawyer representing someone for a DWLS 2nd, I want to work out some kind of Plea Bargain for that person. Even if I know a Client is not likely to go to Jail, I need to try and minimize every other negative consequence of charge so that they can get back on the road as soon as possible, and so that they don't go broke in the process.

Let's look at a few examples. Let's say Dave the Driver gets pulled over in Warren for a DWLS 2nd. Lets say he already has a DWLS on his Record, which is the result of some unpaid Tickets elsewhere. When I go to Court for Dave, if I can show the Prosecutor that Dave has either taken care of his outstanding matters, or has at least started the process (meaning done more than simply saying he's going to take care of them), it is still possible for me to work out the poster-boy of all Plea Bargains in this kind of case, which has the whole DWLS charge dropped to what's known a s a "No-Ops." A "No-Ops" stands for No Valid Operator's License on Person, which amounts to being pulled over and having left your Driver's License at home. It carries no Points, no Mandatory Additional Like Suspension, and no Driver Responsibility Fees.

]]> Sometimes a person like Dave the driver hasn't had enough time to even begin this process before his new Court date rolls around. In those cases, I try and work out a deal with the Prosecutor to adjourn the case for a period of time to allow Dave to either clear up, or at least begin clearing up, the outstanding matters.

Let's look another example. Lets say Diane the driver is pulled over in Rochester for a DWLS 2nd Offense. Like Dave, she has some outstanding matters that have not been cleared up. When I go to Court for Diane, the Oakland County Prosecutor might not be as willing as their Macomb County counterpart to drop the charge all the way down to a "No-Ops." In truth, that's probably a pretty accurate statement. Anyway, in that case I am still usually able to have the Prosecutor drop the charge from a DWLS 2nd Offense (with the 1-year in Jail maximum and the up-to $1000 fine) to a DWLS 1st Offense (with a maximum Jail term of up 93 days and a maximum possible fine of up to $500).

This is still better than what the Diane was originally facing.

While her exposure in Court has been reduced, the Secretary of State is going to hit Diane with a Mandatory Additional Like Suspension. This means that if her License had been Suspended for a year when she got pulled over in Rochester, she's going to get another 1 year Suspension tacked on. In addition, she will have yet another Driver Responsibility Fee to pay, and if she still has some owing, the new fee will be tacked on to that existing balance.

In more serious cases, meaning those where the DWLS 2nd Offense charge really represents a Driver's 3rd, 4th, or even 5th Offense, the goal of my efforts (and I would hope of any Lawyer handling such a case) really begins to narrow on just keeping the person out of Jail. How that is done can vary form Court to Court. Sometimes, a "no Jail" deal can be struck with the Prosecutor. The strategy for keeping the Client from getting locked up will have a lot to do with their unique circumstances, the facts about their case, and which Judge is hearing it.

There is no way to list all the possible combination of things that can come into play, so here we'll just leave it the way a surgeon does when he tells a patient that for all the x-rays and lab work, he'll only know what to do when he "gets in there," meaning when he's opened the patient and seen what's inside. In many cases, the confluence of events present in the back room where the Prosecutor and Defense Lawyers meet, coupled with an assessment of the Judge's disposition in the Courtroom that day cannot be calculated until you're there.

We have seen that DWLS 2nd (and Subsequent) Offense cases are the more complex cousins to DWLS 1st Offense cases. In addition, we've seen that, depending on a person's prior Record, they run the gamut from being "no brainers" to stay out of Jail to real challenges just to do that.

In the next series of articles, we'll examine the far more serious Offenses of Driving While License Revoked 1st Offense, and DWLR 2nd (or Subsequent) Offense. Just prior to that, however, I am going to provide a short "How to Read and Use This Blog" article so that the reader can see how many of the various articles and series of articles are connected and cross-referenced.

Driving While License Suspended 2nd or Subsequent Offense in Michigan (Macomb, Oakland and Wayne County) - Part 1

2010-03-08T19:06:09Z

In Part 1 and Part 2 of the previous articles about Driving While License Suspended (DWLS) 1st Offense, we reviewed some of the reasons for and consequences of that charge. In this and the next articles, we'll look at DWLS 2nd Offenses and examine how and why that charge is (and is not) sometimes made, as well as the consequences that accompany a 2nd Offense. This overview will be based upon the many DWLS cases I have handled in the Courts of Macomb, Oakland and Wayne Counties.

Given the sheer number of DWLS cases that I handle, it only makes sense that a pretty fair share of them involve DWLS 2nd (or Subsequent) Offenses. It should be obvious at the outset that a DWLS 2nd or Subsequent Offense charge means a person has at least 1 prior DWLS conviction on their Record. From here on out, we'll refer to DWLS 2nd or Subsequent Offense as just plain DWLS 2nd Offense.

When someone is Arrested and then Charged with a DWLS 2nd, it's usual for their first concern to be staying out of Jail. If I have done anything in these blog articles, I think it's fair to say that I have NOT been any kind of alarmist, or used any scare tactics to frighten anyone about the real-life consequences of their situation. In fact, I have gone to great lengths to point out just how unlikely going to Jail is in many different kinds of cases, including the previous series of articles about DWLS 1st Offenses.

That changes a little bit now. While a DWLS 1s Offense almost never (and simply never, in my experience) results in someone going to Jail, Second (2nd), and especially that part about Subsequent (meaning more than 2 prior DWLS convictions) Offenses brings a person much closer to being locked up.

First of all, DWLS 2nd Offense is a Misdemeanor, like DWLS 1st Offense, but it carries a penalty of up to 1 year in Jail (a 1st carries a maximum penalty of up to 93 days in jail). In addition, it carries a maximum fine of up to $1000 (DWLS 1st carries a max of $500), 2 Points on the Driver's Record, and a Mandatory Additional Like Suspension. Beyond that, there is yet another, cumulative Driver Responsibility Fee, meaning that any DRF for a 2nd Offense is added on top of whatever other DRF a person might owe.

]]> A Mandatory Additional Like Suspension means that a person will have another Suspension, of the same length as whatever one they were on at the time of their 2nd Offense, added on. Therefore, a person whose License was Suspended for 1 year (even if they were 11 months and 29 days into it, meaning they only had a day or two left on it and who is convicted of DWLS 2nd will have yet another year of Suspension tacked on.

As with any case involving a Suspended or Revoked License, the underlying reason for a person's loss of License is very important. As I pointed out in the previous articles, and elsewhere, there are really 2 categories of Suspended and Revoked License Offenders:

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

2. Everybody else.

This means that people who can trace their original cause for losing their License to a DUI will always be treated somewhat differently than those who lost their License for pretty much any other reason. Again, to say it in reverse , a person whose loss of License is the result of anything other than a DUI is in much better shape than the person who originally lost it because of a DUI.

The overwhelming majority of DWLS and Revoked License cases result from a person being pulled over while driving and having the status of their License discovered by the Police. In these case, the person is usually caught in the act, and there is little way to challenge these cases, except perhaps to question the underlying reason for the Police stop.

This means that for all except the rarest of DWLS cases, the Lawyer's job shifts focus from evidentiary and legal challenges, to outright damage control. For those that call concerned about staying out of Jail, I always assure them that that's my first priority.

Now, to be truthful, I don't recall a single Client ever going to Jail with a true 2nd Offense DWLS (meaning they had only 1 prior DWLS). Granted, this experience is limited by the fact that I only handle these cases in the Tri-County area, and with the Jails at or nearly overcrowded, this type of Offense, even if it is a 2nd, doesn't rank too high on the public safety threat index.

When we start talking about 3rd and 4th Offenses, however, Judges really begin to take a different look at the person standing before them. Whatever else, a 3rd of 4th time Offender begins to look like a "scofflaw," or a person who doesn't care to follow rules they don't like. In these cases, anyone in the Judge's seat might start to think that the Offender could use a lesson in respect and rules, and locking them up begins to look like an easy and available, if not necessary, option to do that.

Likewise, 2nd Offenders lose the credibility to tell a Judge that this charge represents an instance of bad judgment. Very often, a person charged with a DWLS 1st Offense will tell a Judge about some situation or circumstance that compelled them to drive on the day they got caught. The need for a ride to work, or some other unusual situation is a frequent explanation, if not excuse. At this point, most Judges will remind a 1st Offender that, whatever their story, it is illegal for them to drive, and they need to remember that and simply NOT drive. And you can bet that when a Judge says that, the person standing in front of them agrees, and promises not to do it again.

Then they wind up with a DWLS 2nd Offense charge. Essentially they are out of excuses. Of course, it's naive to think that most people, like me, who work in the Criminal Justice System, don't realize that any number of people who have lost their Driving privileges still drive anyway, if not just more carefully. I'm not here to pass judgment on a person, and I fully realize that for many people, there is no realistic alternative to just taking your chances and driving. This is, (or at least was) after all, the Motor City, and there's no Metropolitan area anywhere that has less available and convenient mass transit than we do. In other cities, grabbing the subway, a cab, or the bus is just one of many options. Here, it often seems worse than a last resort.

Still, the fact is that, from a legal point of view, that's the Offender's problem, not the Legal System's. After all, people don't just randomly "lose" their License, nor do they have it taken away for being too good a Driver. At the root of all License Suspensions and Revocations is something that was done which should not have been, whether it's a DUI, or not having taken care of a Ticket or Tickets, or not paying Driver Responsibility Fees, or whatever.

In Part 2 of this article, we'll continue our examination of DWLS 2nd (and Subsequent) Offenses. We'll look at the differences in the the Lawyer's handling of, as well as the potential outcomes in 2nd, 3rd, and even 4th Offense cases.

Driving While License Suspended in Michigan - 1st Offense in Macomb, Oakland or Wayne County - Part 2

2010-03-05T23:44:28Z

Part 1 of this article focused on defining a DWLS 1st Offense charge, and what the law sets forth as possible consequences for such a charge. In part 2 of this article, we're going to talk about the real consequences of a DWLS 1st Offense charge, and what can be done to avoid them, and perhaps the whole DWLS charge altogether.

While there are exceptions, pretty much all DWLS cases involve someone getting pulled over and caught driving. In that sense, the usual Client is caught "red handed," as the term goes, and there are seldom any evidentiary issues to challenge, except, occasionally, the underlying Police reason for the Traffic Stop.

Therefore, in the usual, garden-variety DWLS 1st Offense case, a person has been pulled over for some reason and is found to have their License Suspended. Most of the time, they'll be arrested and taken back to the Police Station, but sometimes, they'll be let go with a Citation (Ticket). Of course, they're not let go to keep driving; either someone in the car with a valid license will have to drive, or they'll be allowed to call someone to come and pick them up. Depending on the circumstances, the car may or may not be impounded.

After all of that, they start looking for a Lawyer. They want to know several things, and first among them is whether or not they can be kept out of Jail. Good news here; unless the person has a really horrible prior Record, a 1st Offense DWLS is almost a slam-dunk for staying out of Jail. In fact, I cringe when people sometimes tell me some Lawyer or other told them he or she would keep them out of Jail. To me, that's like a Dentist telling a person with a cavity that because of the filling they can put in, they'll keep the person from getting brain-cancer. In fact, I can't remember anyone I've ever represented even coming close to going to Jail on a DWLS 1st Offense charge.

Okay, so we know that in all but the rarest of rare cases, we're not talking about Jail. Next on anyone's list is (or at least should be) what can be done to avoid all the other consequences (Mandatory Additional License Suspensions, Points, Driver Responsibility Fees, etc.)? The answer to that question depends, more than anything, on the driver's prior Record. If the person gets a DWLS 1st charge after having ignore 22 Tickets in 14 different Cities, and has 20 outstanding Suspensions for failure to take car of any of them, their chances of working out a deal to avoid all the consequences of a DWLS are a lot slimmer than a person who has 1 or 2 (or even 3 or 4) outstanding unpaid Tickets that have resulted in Suspensions.

]]> That deal we're talking about involves negotiating with the Prosecutor to drop the DWLS charge to the lesser offense of "Failure to Display a Valid Operator's License," or what's known as "No-Ops." A "No-Ops," when it can be had, is the poster-boy of all plea bargains. No-Ops results in no Points, No Driver Responsibility Fees, and, best of all, avoids any further Mandatory Additional Suspensions.

Typically, the Prosecutor, as a prerequisite to any such "No-Ops" deal, with require that the person "clear up" any outstanding matters in other Courts. Sometimes that involves a lot of money, and the Client is simply not able to pay for all this at once, so an astute Lawyer will either buy enough time for the Client to do this, or work this requirement into the Sentencing for a "No-Ops deal.

Even those who have had their License suspended for a DUI are often able to have a "No-Ops" deal worked out for them.

Whether or not a person winds up on some kind of Probation depends, in large part, on which Court is hearing their case. Courts in Macomb County are more likely than their Oakland County counterparts to simply send someone out of Court without requiring them to report monthly for Probation. Wayne County Courts, especially those in and near Detroit, are also more likely to not impose rigorous Probation requirements on someone who has gotten a "No-Ops deal. Western Wayne County Courts tend, in my experience, to be a bit more conservative than those closer to Detroit.

No matter which Court is hearing a person's case, the extent of any prior Record is an equally important factor in determining if the matter can just be resolved by the payment of a Fine, or if Probation (either Reporting, or non-Reporting) is ordered.

The point to all this is that although Jail time is legally possible in a DWLS 1st Offense case, it's so rare that I've never even heard of it happening. The ultimate goal is to avoid as many of the legal consequences as possible, and the best way to do that is to negotiate a deal with the Prosecutor to reduce the DWLS to a "No-Ops" charge.

In the next articles, we'll examine DWLS 2nd and Subsequent Offense cases, and see how having a prior Suspended License conviction (or convictions) can affect a person's future.

Driving While License Suspended in Michigan - 1st Offense in Macomb, Oakland or Wayne County - Part 1

2010-03-03T23:37:07Z

Driving While License Suspended cases have always been a large part of my Practice, and the sheer number of such cases has been rising over the last several years. The economy has prevented many people from paying off or otherwise dealing with Traffic Tickets, which then results in a "FCJ" or Failure to Comply with Judgment" Suspension of their License. Even those who handle their Traffic Tickets are sometimes unable to pay the Driver's Responsibility Fees, or what's known as the "bad drivers tax." When those Fees are not paid, the Driver's License is Suspended.

There are, of course, lots of other reasons why a person's License may be Suspended. In this article, we'll discuss some issues regarding Driving While License Suspended (DWLS) 1st Offense cases, and how that can affect a person's ability to get their License reinstated. In the next article, we'll examine how this works in cases of Driving While License Suspended (DWLS) 2nd and Subsequent offense. After that, and as this series of articles continues, we'll see how all this works in Driving While License Revoked (DWLR) cases.

The 2 terms DWLS and DWLR are sometimes confused, and despite being part of the same law, are very different, and carry very different consequences. So, to define our subject here, we're talking about matters involving Suspended, and not Revoked Licenses, and Parts 1 and 2 of this article will deal with DWLS 1st Offenses.

Let's clarify one more thing; I only handle DWLS and DWLR cases where the charge is pending in a Court in Macomb, Oakland or Wayne County. A recent exception to that limitation only served to reinforce my decision to limit my Criminal Practice to the Tri-County area (this geographic limitation does not apply to my License Restoration or Bankruptcy Practices). Thus, what you read here is how things work in the Detroit area. Some or all of it may apply elsewhere, but I have no inclination or interest in finding out to what extent that is or is not true.

Suspended License cases come in several different flavors. Some cases, like those that we'll be examining in this article, involve a "1st Offense," meaning that the person charged has no prior DWLS cases. Some people, however, do have "priors," and the number of those "priors" can range from 1 prior to many. Not to swap war stories, but perhaps the highest number of prior suspensions I have seen on a Client's record was over 60! Long story about that one, but I kept the guy out of Jail.

]]> A DWLS 1st Offense carries a maximum possible Jail term of up to 93 days. Relax, if you're facing this (at least in the Tri-County area), because actually getting any Jail time is extremely unlikely. In addition, it carries a maximum fine of up to $500 (plus Court costs), and will put 2 Points onto the Driver's Record. In case that's not enough, there is a $500 Driver Responsibility Fee for 2 consecutive years. Perhaps worst of all, the Driver will also have his or her License Suspended for a mandatory "like" additional period (which means if it was suspended for 6 months for some reason, and the person gets a DWLS during that 6 month period, a whole new, additional 6 months suspension period will be imposed, on top of and after the original 6 months) if there is a certain, specified period of suspension. If the Driver was just suspended for unpaid Tickets or Driver Responsibility Fees, then they'll receive an additional mandatory 30 day Suspension for the new DWLS.

In my various Blog articles, I have noted one thing about DWLS (and DWLR) cases that is as solid as the laws of physics: All Drivers charged with DWLS (and DWLR) fall into 1 or 2 categories -

1. Those whose Suspension (or Revocation) originally results from a DUI, and

2. Everybody else.

This means that no matter what else is or isn't present in any given case, if a person originally lost their privilege to Drive because of DUI, things are going to be more difficult than if their License was Suspended for any other reason. To say that in reverse, if a person's Suspension results from anything other than a DUI, they're much better off. I could write for days about why that is, and how that plays out in different Courts, but for our purposes we just need to accept that as a fact, in the same way that Halloween falls on the last day of the month of October.

In Part 2 of this article, we'll review how the consequences of a DWLS can be minimized, if not avoided. We'll look at the best possible plea-deal that can be arranged in these cases, and how that is done.

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 their 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 knew I was probably going to Jail anyway, so I just 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 first 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.