Articles Posted in Criminal Cases

In part 2 of this article, we continued our inquiry into probation violation cases in Michigan criminal and DUI cases.  In particular, we tried to see how the whole violation thing is perceived by the Judge who sentenced you for a drunk driving offense or something like a drug (including marijuana) crime.  We also noted that although positive test results are the most common reason for being violated, missed tests come in a reasonable close second, with false-positive results a distant third.  Here, in our 3rd and final part, we’ll go into the courtroom itself and see how it is proven that a person has violated his or her probation and how that plays out in front of the Judge.

Decorative Scales of Justice in the CourtroomUp to this point, we’ve looked at the 3 most common reasons that give rise to a probation violation:  A positive result, a missed test, and a false-positive result.  Now, let’s look at how these are handled in court and what must be shown to prove that there was, in fact, a violation.  That “showing” is technically called the “standard of proof.”  Everyone knows that if you’re accused of a crime and go to trial, the prosecutor must prove your guilt beyond a reasonable doubt.  A probation violation is proven by a much lower standard, called a “preponderance of the evidence.”  The most common way this is explained is to imagine the scales of justice sitting even, or level.  As soon as you put something on one tray, it goes down and the empty side goes up.  Now, if you put something of equal weight in the other tray, the scales go back to even and level.  If you put something that weighs just a little more on one side than you do on the other, then the heavier side falls farther down, and the lighter side remains higher.  Surely you get this.  A preponderance of the evidence means just enough evidence to tip the scales from being exactly even, one way or the other.

Let’s consider an example:  Assume that Sneaking Sam has missed a test.  Now, picture the Judge on the bench, with the scales of justice next to her, and they’re level (even).  She looks at Sam and says, “I have a notice that you missed a test last week, Sam.” She then grabs a 5-pound weight and puts it on one of the scales, causing it to tip.  So far, the preponderance of the evidence weighs in favor of Sam having missed his test.  Next, the Judge asks what Sam has to say, and his lawyer explains that Sam’s boss called him in early the day of the missed test because there had been a flood at the workplace, and hands up a letter from the boss to that effect.  The lawyer also offers up a make-up EtG test taken the next day.  The Judge then takes a 2-pound weight for the letter and a 2-pound weight for the make-up test and puts them on the other scale, causing the missed test side to rise.  Still, the scale hangs a bit lower on the side of the missed test.  That’s because the preponderance (think of it as the majority) of the evidence supports the idea that Sam did, in fact, miss his test.  Sure, he has a relatively good reason for doing so and it’s true that he has a clean make-up test, but in terms of the simple allegation that he missed the test, Sam’s evidence does not outweigh that on the “missed” side.

In part 1 of this article about Michigan probation violations, specifically in the Detroit-area district and circuit courts of Wayne, Oakland and Macomb Counties, we began examining what happens when a person who is on probation for a criminal or DUI case either tests positive or misses a test altogether.  I pointed out that to the Judge, a violation of his or her order to not drink (and/or not use drugs) by either a positive or missed test can feel like either getting the middle finger from the person to whom a break was given.  The only other alternative to “screw you, Judge,” is that the person is suffering from an overwhelming and irresistible compulsion to drink (or smoke weed or whatever).  As we noted, however it plays out, a missed or positive test does not look good.  I certainly understand that people who do have a drink (and get caught) are not, for the most part, trying to “flip off” the Judge, nor are they caving into cravings of some sort, but rather just want to be normal, like everyone else.  An order to not drink, however, must also be seen as a part of one’s punishment for the original offense, and a missed test, even if it is followed by a clean make-up test (or there is a “good” explanation for missing the test) is a violation of the requirement that a person test when directed, on the schedule ordered, and not one that is “convenient.”  In other words, part of the penalty for a criminal or DUI conviction is that you don’t get to act normal by enjoying an adult beverage.  At the end of part 1, we were, figuratively speaking, standing in front of the Judge who was wondering if a person tested positive because he or she is hell-bent on NOT following the rules or is otherwise unable to cope with his or her urges to drink (or use drugs).  We concluded by pointing out that it’s that very spot where most people really get a sense of how bad their situation looks, and asking what can be said or done to make it better.

Plan-or-Growth 2.0There is no simple, one-size-fits-all answer to that question.  And to be perfectly honest, some Judges are “easier” than others.  You can call them more forgiving, lenient or understanding, but the plain fact is that there are some Judges who won’t really have much interest in your side of things if you test positive, and I can think of at least one Judge who will have about ZERO interest in anything you have to say once you’re caught drinking or smoking weed while on probation.  In that sense, as you look for a lawyer, you need to find one who really knows the Judge or Judges in the court where your violation is pending.  For example, that Judge who would probably have the least interest in anything you have to say is also (not surprisingly) rather short on patience, so it would not be a good tactic to go in there with an attorney who will drone on and on about kinds of stuff she DOESN’T want to hear.  Any chance to change her mind needs to come right out of the gate, not after torturing her by babbling on and on….

As we noted above, the goal in a probation violation case is to convince the Judge that you neither callously disregarded his or her orders to not drink (or use anything else) nor do you have an underlying problem with urges too strong to resist.  Of course, everyone’s first strategy is to say that very thing.  Part of the problem with such a plan is that, almost without exception, everyone does and says that same thing.  Over the course of my 26 years, I have read, quite literally, thousands of DUI police reports.  Ask any DUI lawyer or any police officer what people say when the officer asks if the person has been drinking, and you’ll learn that far and away, everyone gives about the same answer; “2 beers,” “2 drinks,” or “a couple of drinks.”  No one replies, “Hell yeah; officer, I drank a lot, and man, am I am really drunk right now!”  Likewise, everyone who stands before the Judge for drinking while on probation says that he or she didn’t mean any disrespect nor do they have drinking problem.  So if that’s not going to fix things, what do you do?

As a Michigan criminal defense and DUI lawyer, I get called upon to handle a lot of probation violation cases.  In fact, it’s quite likely that if you’re reading this, you or someone you care about is facing one.  In this article, I want to take a real-world look at the 2 most common reasons people wind up getting violated:  A positive urine or breath test result or a missed test for alcohol and/or drugs.  Sure, there are plenty of other ways that people violate an order of probation, and much of what we’ll look at here applies equally in those situations, but most of the calls I get follow a positive result or a missed test.  I want this installment to be candid and conversational, as if you were sitting in my office and we were speaking across my conference room table.  I’m sure that you’ve already come across plenty of lawyers with catchphrases about your freedom, your future, and/or control over your life, or who focus on how tough and aggressive they are.  By now, you’ve probably grown weary of all that, so we’ll change focus and use this article to examine how probation violations play out in real life, and how I handle them.  This article will be divided into 3 installments, and will really explore the goings-on in a probation violation case.

We’ll start by looking at the hard truth that a lot of people (including lawyers) want to dance around, rather than face head-on:  When you’re caught giving a positive test result, the first impression is either that you’re giving the finger to the Judge or you have a real problem with alcohol and/or drugsProbation is a break; an opportunity to stay out of jail by, amongst other things, showing up for all required tests and then passing them.  Of course the job of your lawyer in a probation violation case is to get the Judge to see what happened as being neither a disregard of his or her order nor as proof that you have some irresistible compulsion to drink or get high, and for everything else that can be said, this is the real crux of the matter.  It should be pointed out that although most Detroit-area courts use the term “probation violation,” some others call it a “VOP,” meaning violation of probation, or a “show cause,” which is a hearing that requires you to go before the judge and show cause (a good reason) why you shouldn’t be held in violation.  Whatever it’s called, it’s all the same thing.

We should also note, at the outset, that good reasons do exist for having missed a test, and that false-positive results do happen.  Sometimes, the simple truth is that a person misses a test because he or she forgot, or got real busy, or had to go to work, but was not to avoid a positive result.  In a perfect world, when that happens, a person will be timely notified of a positive result and have an opportunity to retest.  In the real world, however, it often works out that by the time a person learns he or she has failed a test, it’s too late to do anything about it.  Sometimes, a test result is wrong, but when a positive result is correct, meaning you did, if fact drink (or use drugs), you need the kind of lawyer who is a persuader, and who can explain things clearly.  In other words, if the positive test result is correct, it couldn’t matter less if your lawyer has a Nobel Prize in chemistry; that’s not going to make things better in front of the Judge.  Instead, you need to convince the Judge to not put you in jail or otherwise hammer you.  At the end of the day, while some cases do involve false-positive results, most arise because you simply got caught, and here, you need to go into full damage-control mode.  Let’s examine, in turn, positive test results (when you did drink or use), false-positive results, missed tests, and what has to be shown for you to be found guilty of a probation violation and how that all goes down in court.

If you have been arrested for a drug possession offense in Michigan, whether it’s the simple possession of marijuana, possession of analogues (meaning drugs like Vicodin and Xanax), or other controlled substances, including things like cocaine, ecstasy and heroin, a lot goes through your mind.  Of course, you’re undoubtedly filled with regret (certainly regret at being caught), but chances are, the reality of a possible drug offense on your record also has you worried.  The point of this article is to reassure the reader – whether you’re the person facing the charge, or you’re researching for your child, partner, or someone close to you – that in most cases, many, if not all, of the negative consequences, including a drug conviction on your/their criminal record, can be avoided.

Criminal-RecordsAs of this writing in July of 2016, possession of marijuana (spelled marihuana in the law book) still violates state law except with a medical marijuana card.  Certain municipalities have either de-criminalized or even legalized possession of small amounts of marijuana, but chances are, if you’re reading this, it’s because you were pulled over and found to have some in a jurisdiction where it is still illegal.  I point this out because the attitude of some people regarding marijuana is a bit ahead of the law.  For all the argument and analysis about how things should be, or likely will be down the road, the fact is that if you are found to be in possession of marijuana in most places, you will face a misdemeanor drug crime, and like all other possession charges, that subjects you to suspension of your driver’s license, making it all the more important to avoid such penalties by keeping the whole thing off of your record.

To keep this article short, I’ll skip the in-depth analysis of the “legal maneuvers” required to keep a possession charge off of your record.  In the real world, there are generally 2 ways this is done:  For those who are under 24 years of age (in other words, the day of the arrest or citation must be before the person’s 24th birthday), a conviction can be avoided by what is called “HYTA” (pronounced “hi-ta” and formally known as the “Holmes Youthful Trainee Act.”  Until recently it only applied before a person’s 21st birthday, but that has changed.), or what is commonly referred to as 7411 (said like “74-11” and referring to the actual Michigan Compiled Law –MCL 333.7411).  Let’s repeat that more simply; drug possession charges are kept off of a person’s record by either using “HYTA” or “7411.”  Unfortunately, in the real world, cases are often a bit more complicated, like when a person charged with possession of marijuana is also charged with possession of paraphernalia, or a DUI offense, as well.  For anyone over 24, there is no HYTA available, and a conviction for possession of paraphernalia cannot be deferred under section 7411.  This means that the lawyer will often have to do some creative negotiating to keep your record clean.  No matter how you cut it, the bottom line is that you hire a lawyer to make things better, and in the world of drug possession and related charges, that means, first and foremost, keeping everything off of your record.

How is it that by hiring a lawyer, you can almost always “get out of” a traffic ticket?  In this article, I’m going to skip all the discussion about policy and theory (the reader is likely not interested in that, anyway) and cut right to the chase about keeping points off of your record in a traffic ticket case, and how that applies in criminal and DUI cases, as well.  Whether you like it or not, there is a certain reality at work here, and in some ways it is related to the old observation that, “It’s not what you know, but who you know.”  Again, I want to avoid analyzing why things are the way they are, or how they should be in a perfect world, so I will use a real world example from my own life to illustrate:  In the process of building our home, my wife and I were asked to pick out things like plumbing and light fixtures (my wife, as it turned out, did all the picking, with my input being limited to a bunch of “uh-huh” and nodding-in-agreement responses) at certain supply businesses.  At some of these places, nothing could be purchased by the public at large, and at others, the price offered to those on the “inside” (builders, contractors and designers) was hugely discounted over what the public (we) would pay.  It may not be fair or right or whatever, but it is what it is, and unless we wanted to pay a price that was, in some cases, 40% more, we played by the rules, my wife picked out the stuff, and the ultimate purchase was made by our builder or designer.

img_1806The point I’m making is that there is a similarity when it comes to things like traffic tickets, and even criminal offenses and DUI charges.  In some cases, a lawyer, like me, walks in and just gets a deal that an unrepresented person can never procure simply because one is a lawyer and the other is not.  It’s why, for example, cops don’t get traffic tickets and why Chrysler, Ford and GM offer employee pricing.  It is what it is, and for my short time on the planet, I’m not about to take up the cause of whether that’s right or not; I offer my services to those who will pay for them in order to avoid the points on a traffic ticket or make things better in a drunk driving, misdemeanor or felony case.  When I need to, I go to someone to get the “friends and family” deal on a car, and I hire a contractor to do whatever work needs to be done at my home, and/or to avail myself of his or her discount on the supplies we need.  There are some “do-it-yourself” diehards who will try anything to save a buck, and to them I say, “good luck.”  I have no interest in either being one of those people, nor do I want to deal with them.  My own dad, who spent his career as a letter carrier for the U.S. Post Office and therefore did not earn a ton of money, was a firm believer in hiring a professional to do the job; he paid the plumber, the electrician and the mechanic to do things right.  While other dads may have spent an entire weekend figuring out and trying to do their own car repair, my dad was only too happy to drop the car off, have the mechanic fix it, and know that it was done correctly by someone who’s done that same repair countless times before.  I’m the same way both in terms of what I do as a lawyer, and what I hire outside professionals to do for me.

As I noted above, this connects with, but is certainly not limited to the idea of “who you know.”  In other words, there are courts a lawyer can walk into and just because he or she knows everyone, get a really good deal.  On the other hand, some lawyers may take cases in far-away courts (this is something I avoid completely by keeping things strictly local by appearing pretty much only in Wayne, Oakland and Macomb County courts) and still be able to work everything out, just because he or she is a lawyer.  In one sense, that’s part “good ol’ boys network,” and in another sense, it’s not that at all.  At the end of the day, any lawyer who walks into any courthouse carries at least the implied understanding that either something can be worked out amicably, or it can be dragged out as a huge, time-consuming mess.  This is the real, if not unspoken point of hiring a lawyer in the first place…

In part 1 of this article, we began our examination of drinking (and drug use; the lessons here apply equally) and that uneasy feeling some people get when they get caught up in something like a DUI or criminal charge and they realize that something about their partying behavior (like facing a drinking and driving charge) just isn’t working out the way they want. Many of my clients are people who have found the true joy of getting clean and sober and are now moving ahead toward a driver’s license restoration. On the flip side, many of my clients are people who are a million miles from having any kind of problem and just make a mistake in judgment and get a drunk driving. Others may indulge in the occasional joint and simply get caught being in possession of marijuana. Still plenty of people that I see are dealing with the consequences of alcohol (or drug) use that has gotten out of hand. While I hope a lot of people find something of use in this article, my deepest hope is to extend a hand to the person who is just beginning to open up to the idea that his or her relationship to alcohol or drugs is problematic. We don’t need to describe or label it in anymore detail than that; this is for those who simply have a feeling that something just isn’t right. In this second part, we’re picking up with the idea that quitting doesn’t really have any downside. There is no “missing out” on the fun (and how much fun has it been lately, anyway) but rather about things getting better. A lot better.

wine_glass_3169919b.jpgHere’s the real kicker: When a person quits drinking for good, always, and without exception, his or her life improves. On the one hand, life itself gets way better, while on the other, the storm of never ending (and self made) problems just comes to an abrupt end. As much as someone may wonder how they’ll ever have fun again without alcohol, everyone who has ever gotten sober shakes their head in regret that they didn’t do it sooner. How much fun is drinking right now? How much fun has it been recently? Is it really the grand prize of all prizes to work all week just so you can piss away an entire weekend getting wasted? Is getting drunk on Friday night really the best reward you deserve in life? When people get sober, they get genuinely happy. They look at the people in the bars at night and feel sorry for them. They’re out doing whatever, and they feel a sense of pity for those to whom another night getting toasted is their life’s goal. Sober people know they’re not missing out on anything (by contrast, they know the folks wasting their nights getting hammered are the ones really missing out), and, to a person, they all wish they would have figured this out sooner.

This is the one time in your life when you should act quickly. The biggest waste of your precious little time on this planet is to think too much about this before you act. You can easily get stuck in the paralysis of analysis, where you think about everything, but do nothing. Pick up the phone and reach out for help. Remember my questions: How much fun is drinking right now? How much fun has it been recently? Now, consider this question: What do you think is going to change, and when, that will make drinking fun and safe again? I’ll help you cheat by giving you the answer: Nothing. Not now, not later, not ever. It’s time to grow up and take control over your life. You’ll be incredibly glad that you did. You’ll get back more than you even know you lost, and you’ll move ahead like you never thought possible. Can you think of any way that not drinking will harm you? How many ways has it helped you, lately? It comes back to the fact that those uncomfortable feelings you’re having are “right.” That’s your gut; now is the time to trust it…
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As a Michigan criminal, DUI and driver’s license restoration lawyer who spends almost all of his time on cases directly connected to problems caused by alcohol and drugs, I have wanted to write this article about coming to grips with those problems for a long time. I suppose I have, separately, and in little pieces throughout the nearly 700 articles I have published thus far, but this is really my first attempt to put it all together at once. To keep things manageable, I’ll break this piece into 2 installments. My goal here is to reach out to the person whose drinking or drug use has become an “issue” in a criminal or DUI case (or even outside of that context) and who has the unsettled feeling that something just isn’t quite right. Sometimes, these “issues” become pressing and a person begin to think about all of this after an arrest and arraignment for something like a drinking and driving offense, when he or she is suddenly ordered, by a Judge, to refrain from drinking (and drug use) and is being tested to ensure compliance. The first reaction is often a kind of discomfort because you really don’t know if you can stop drinking (you may tell yourself something like it’s not that you can’t, but rather than you don’t want to), and it’s always accompanied by a kind of anger that you’re being “forced” to not drink, and besides, who the hell is someone else to tell you that you have a problem, or treat you like you have one? This kind of inner turmoil is a big clue that something is amiss.

wine-690299-min-1080x675.jpgIt’s not that everyone who is unhappy with an order to not drink has a problem with alcohol, but the degree to which someone is frustrated by or resistant to this kind of required, but temporary, abstinence can be telling. In my driver’s license restoration practice, for example, where my clients are sober and usually have been in recovery for a number of years, most will admit to NOT having stopped drinking, even while they were on probation or being tested as a condition of bond. For these people, alcohol admittedly played a disproportionately (and therefore inappropriately) important role in their lives. In other words, drinking was too much of a priority for them. To choose to use alcohol despite being ordered by a court to NOT do so, while simultaneously being under very real threat of going to jail if you do is clearly maladaptive and troubled behavior. For as much as I have seen and learned over my 25-plus years, perhaps the best and simplest way I’ve heard it put is this: “Anything that causes a problem is a problem.” In the real world, no one ever thinks about their drinking or partying until it starts causing problems. At first, those problems are infrequent and usually “fixable.” The thing is, once the problems start, meaning once you have more than something like an isolated, 1st offense DUI that just “happens,” the problems tend to keep coming, and they come more frequently and get more complicated (and expensive).

Precisely because of the way I spend all of my workdays as a lawyer, dealing with legal issues involving alcohol and drugs, I realized how much more I could actually help my clients by advancing and formalizing my understanding of addiction issues. Accordingly, I went back to school at the post-graduate level (a post-graduate program, unlike a regular graduate program, is for people who already hold a graduate degree) and completed the coursework in an addiction studies program. I learned a lot there, all of it from the clinical, rather than the legal side of things. Still, nothing beats good old-fashioned experience. Book learning is great, but I prefer the “real world” over everything else. For all the clinical and technical terms that I added to my vocabulary, I saw that in the addiction field, just like everything else, we tend to talk things to death, and it seems that in the quest to help people, we sometimes talk them right out of seeing what’s right in front of their eyes. In the case of alcohol and addiction issues, for example, the over-use of terms such as “alcoholic,” “alcoholism,” “denial,” “powerlessness” and “surrender” can scare people off and send them running for the hills. Getting help should not sound so demeaning or scary. Let me explain what I mean…
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Leaving the scene of a property damage accident (sometimes written up as something like “leaving scene of PDA,” or “leave scene PDA,” and often referred to simply as “hit and run” or “PDA”) is one of the more common offenses I see in my role as a Michigan criminal and DUI lawyer. Most people don’t understand how seriously these cases are taken until they find themselves in the middle of one. The reason for this is simple: In many, (if not most) PDA cases, the driver who took off did so because he or she had been drinking and didn’t want to deal with the police and get arrested for a DUI. Of course, this isn’t true in all cases, but the assumption is nonetheless there in every case. Not surprisingly, a lot of these charges wind up in courts with robust DUI caseloads, including Oakland County’s Rochester Hills’ 52-3 and Troy’s 52-4 district courts, along with Royal Oak’s 44th district court. In Macomb County, the Sterling Heights 41-A district court and Shelby Township’s 41-A Shelby division, along with Clinton Townships 41-B and Roseville’s 39th district court see their fair share of PDA cases, while in Wayne County, the 16th district court in Livonia, the 18th district court in Westland, and the 35th district court in Plymouth/Canton deal with as many of these charges as any other local, Detroit-area court.

1743060_G.JPGAs it often plays out, a person, while driving, sideswipes another vehicle, or else hits a parked car, a mailbox or some kind of road sign, and just keeps going. Many times, when a driver hits another vehicle in traffic, the license number of the vehicle that caused the contact is obtained, and later given to the police. Obviously, it’s easier to plow over a mailbox at 3 a.m. and go undetected than it is to hit another driver. Also, because alcohol is often involved, the offending driver may completely underestimate the degree of contact or amount of damage he or she caused. I’ve had cases that involved contact so slight that the person didn’t realize it and that resulted in an almost undetectable scratch, to cases where the driver beached the car somewhere after breaking off a wheel, left it, and went home, only to be roused by the police knocking at the front door.

A key thing to remember is that a PDA situation is kind of like a bad DUI (at least in those cases where a person is unable to demonstrate that he or she was not drinking) specifically because there was an accident. Most drinking and driving arrests don’t involve an accident. In fact, in the vast majority of drunk driving cases, the person simply gets pulled over for something like speeding or swerving and then winds up getting caught after having had a few too many. A DUI with an accident is always worse than a simple DUI without one. When it’s believed a person charged with leaving the scene of a PDA had been drinking, it makes sense that he or she is seen as even more dangerous than someone merely stopped for drinking and driving without having hit anything. So what are consequences, as in punishment, for a PDA hit and run?
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In my world of driver’s license restoration, criminal and DUI cases, the word “sobriety” really takes a beating. It is chronically overused, while seldom fully understood. In the context of a Michigan driver’s license appeal case, for example, the key inquiry is whether or not a person has really quit drinking and is a safe bet to never drink again; this hints at the deeper, truer meaning of the word. The concern that a person will drink and drive again is pretty well obviated when it’s clear that he or she has both the commitment and the tools to remain alcohol-free for life. As often used, however, the word “sober” is simply intended to mean “not drunk.” Real “sobriety,” however, is qualitatively different from merely “sober,” as in not drunk. It is this deeper notion of sobriety, which involves a person having quit drinking for good, that is fundamental to winning a driver’s license appeal. It can also be important in criminal and DUI cases, as well. I’ve had 1st offense DUI clients who are exhausted by their drinking and are ready to quit, while, by contrast, I’ve had people with 4 or more DUI’s who insist that no matter how things might look, they don’t have any kind of problem with alcohol. Sobriety, or a lack of it, always plays a central role in all driver’s license restoration and DUI cases, while playing anything from a leading to a supporting role in many criminal cases, as well. In this short article, I want to take a closer look at the true meaning of the term “sobriety.”

Acceptance1.2.jpg“Sober” can mean that a person is either “not drunk” or he or she has moved past drinking to an alcohol-free lifestyle. When we hear that a person has been “sober” for a certain number of years, the term essentially means the same thing as the notion of “sobriety” that I want to explore here. As the defining point of this article, the reader will either “get” this, or not. If you or someone you know well has gone through the life-changing process of getting sober, then you understand the profound transition involved, and how completely one must abandon (i.e., surrender) any notion of “controlling” his or her drinking to get well. This kind of personal metamorphosis is a fundamental requirement to winning back a driver’s license that has been revoked for multiple DUI’s. Because I only do license appeals for people who have genuinely embraced sobriety, I can and do guarantee a win in every case I take. A client of mine really defined this in the clearest way when he observed that you can admit you have a problem with drinking, and you can even “admit” that you’re powerless over alcohol all day long; what matters is truly accepting it. This is an interesting take on AA’s 1st step, “Admitted we were powerless over alcohol and that our lives became unmanageable.” In the way that the AA people mean it, acceptance is implicit in the admission, but what my client was trying to say is that many people “know” they have a problem with drinking even while they are still struggling with trying to control it, whereas once someone fully “accepts” his or her powerlessness over alcohol, there are no more attempts at control. Instead, there is a simple surrender, and the fight just ends. By the time most people hit this point, drinking is no longer fun anymore, and usually hasn’t been for a while.

As anyone who has done this knows, the very moment you surrender and give up the battle with the bottle, you actually win. This applies whether you’ve ever been to an AA meeting or not. I like AA, but only when it is accurately seen as just one of many ways to help people get sober. It frustrates me that some Judges are all too quick to force people to go to meetings without any real understanding of larger recovery principles or the potential efficacy of AA for any particular person. AA is a great program for some individuals, but certainly not for everyone, or, indeed, even for most people. If you’re facing a DUI, the last thing you need is to be forced into getting the “wrong” kind of help. Research proves that this can have the opposite of the desired effect. Yet whether AA is right or not for someone, many of its lessons are universal…
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As a Michigan criminal, driver’s license restoration and DUI lawyer, the whole concept of addiction is pervasive in my work. Each and every day, I deal with people across the substance abuse spectrum, including those who have alcohol and or drug problems and don’t know it, some who won’t admit it yet, but may be in the midst of struggling and/or coming to grips with their problem, and others who are in recovery. In addition, I deal with plenty of people who do not have any kind of problem, no matter how things may look in the context of any particular circumstance or case. Not very long ago, I wrote an article about how the whole court system has a pretty strong bias in DUI cases that tends assume that everyone charged with a drunk driving has a drinking problem, or at least a significantly increased risk of having one. In a very real way, this is a little more than an extension of this whole new focus on “addiction.” Addiction has become the new buzzword in criminal and DUI cases, and one of the newest marketing focuses just about everywhere. I have seen a growing number of ads on TV offering to help people break the cycle of alcohol and/or drugs. On this subject, I can speak with some real authority because I have an extensive, post-graduate University education in the field of addiction studies. Thankfully, my studies in this field predates its recent popularization.

Thumbnail image for 606e84581ee0736db8b3783711efd385.jpgThis matriculation enables me to understand substance abuse problems from the clinical side of things as well as the legal. To me, it’s kind of like having both sides of a Q-tip. It goes without saying that, for example, in a DUI or drug possession case, any lawyer smart enough to boil water wants to avoid having her client seen as having an alcohol or drug problem in order avoid as many negative consequences as possible. On the flip side, it doesn’t take a legal scholar to understand the value of shielding the client in the cloak of having a “disease” or problem when doing that will make things better in ways like avoiding jail. To put this another way, in situations like a 1st offense DUI, the goal is to avoid having the client look like he or she has any kind of problem (or even potential problem) with alcohol. In that situation, the word “addiction” is bad, because no one wants to be loaded up with otherwise avoidable classes, counseling or treatment. By contrast, in a 3rd offense DUI, the word “addiction” is useful, and will almost certainly be invoked to deflect anger from the fact that a person is a repeat offender. Instead, the idea is to have such a client perceived as more like the victim of a problem who needs (and wants) help, rather than a “criminal.” In the context of a winning Michigan driver’s license restoration case, it is essential that the person be able to prove genuine sobriety. Accordingly, anyone who wants to win back his or her driver’s license must begin the process with a solid understanding of his or her addiction, as well as recovery from it.

It doesn’t take any real degree finesse for a lawyer to take a 2nd DUI offender, for example, and tell him or her to get into counseling, and then just show up in court and try and play the “recovery” card. Unfortunately, the word “addiction” has been thrown around so much recently that it has practically lost any subtlety it used to have. The same thing happened over the years with the use of precious metal terms. At one time, having any kind of “gold” credit card (or membership or other privileges) was the best you could do. Then, gold wasn’t good enough, and we were introduced to platinum. Not long after that, when gold was forgotten and platinum has lost its luster, things went to titanium. Now, the world is focusing on addiction, and it seems like the word is being used in endless situations. The setting we’re concerned about in this article is how we can use “addiction” (including a lack of it) to make things better for people facing a criminal or DUI charge, as well as the role it plays in a successful driver’s license appeal. Let’s see how this all works in some real world situations:
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