Articles Posted in DUI

As a Michigan criminal and DUI lawyer, about 2 of the most common questions that I’m asked are, “Am I going to jail?” and “Can you keep me out of jail?”  Even the quickest look at a sampling of DUI lawyer websites reveals that the whole “Avoid jail!” theme is used everywhere, by everyone.  It seems to be the strongest pitch a lawyer can make for your money.  I’m no exception; I make it, too, and I know that if I was in a pickle, staying out of jail would certainly be my first and biggest concern.  However, as I have pointed out in many of my various DUI articles on this blog (as well as my website), in the kinds of drunk driving cases and clients I handle, jail is usually not, for the most part, even on the menu.  But the cold truth that I have not seen addressed (until now) on any lawyer site is that some people do, in fact go to jail., and you can be sure that the folks sitting there didn’t book themselves in voluntarily.

jail-thumbIt is generally understood that, as a lawyer, talking about this isn’t good for business.  That’s why attorneys avoid it like the plague.  That’s also a disservice, however, to someone seeking real world information about what happens after a drunk driving arrest.  Of course, it’s my first goal to avoid jail as much as possible, in every situation possible, but even the WORST lawyer out there has the same goal, although perhaps not the skill to do it quite so well.  There is no hard and fast rule about who does get some jail time as opposed to who doesn’t, but there are a few helpful observations we can make to clarify things a bit.  On the one hand, if you’re facing a 1st offense DUI, you’re not really facing any jail time.  On the other hand, someone with a bad record has a much better chance of doing some time than a person with no prior record.  I addressed this in a recent article, and common sense is a pretty good guide here.  If you’re facing your 5th DUI, then yeah, you can count on some time.  Beyond that, however, there is a mix of variables that figures into all of this.  Some jurisdictions are really tough, while others are much more forgiving.  In fact, one Judge can be way more lenient than another would be in the exact same situation.  You also have to include the prosecutor in this mix of variables, as well, because not only do individual prosecutors from the same office have different approaches to things, but some offices are much more flexible than others.

Our discussion here will be limited to the things I handle my own practice: DUI cases and criminal cases involving things like suspended and revoked license charges, drug possession, and other misdemeanors and lower-level felonies, mostly for professionals or other good wage earners. meaning good people caught up in a bad situation.  For the most part, if you’re a solid citizen and haven’t been in trouble before, and you’re facing something like a DUI or suspended license charge, jail isn’t really on the menu at all.  Even if you have had a prior scrape with the law, including, perhaps, a prior DUI, you’re still probably safe in almost every one of the courts where I practice.  But here’s where things get dicey:

In part 1 of this article, I began my examination of the role of alcohol and substance abuse related issues in Michigan criminal, DUI and driver’s license restoration cases, and how my specialized background, which includes having completed a post-graduate program of addictions studies, makes my office different.  I pointed out that I balance my overriding mission to help people at all phases of their relationship to substances, but to never become “preachy” or seemingly fixated.  We looked at how alcohol and drug issues are interwoven into the vast majority of criminal cases, and of course, all DUI charges and possession cases.  I cautioned that, as much as I want to help people recognize and deal with substance abuse related issues, there are plenty of situations where I use my clinical knowledge to prevent a person from being perceived as having an alcohol or drug problem they don’t.  This is especially relevant in 1st offense DUI cases, where a drunk driving incident that just happens runs up against the court’s inherent “alcohol bias.”  In this second installment, we’ll turn our focus more to recovery, and how a deep knowledge of recovery and recovery processes is important to the win I guarantee in every driver’s license restoration case I take, and how all of these considerations kind of coalesce in criminal cases.

http://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/drug-addiction-spiritual-recovery-1.1-289x300.jpgIn the context of a Michigan driver’s license restoration case, understanding recovery is everything.  A person must prove his or her case by what is called “clear and convincing evidence” (this is a high standard of proof; think of it as requiring, in part, that after the evidence in a case is presented, the hearing officer deciding it will not be left with any lingering or unanswered questions).  There are 2 primary things a person must show:  First, the person must demonstrate that his or her alcohol (and/or substance abuse) problem is “under control,” meaning that he or she can fix a sobriety date (this doesn’t have to be an exact date; someone might say, for example, “early fall of 2009,” or something like that), and second, that his or her alcohol (and/or substance abuse) problem is “likely to remain under control.”  This means that the person can show that he or she is a safe bet to never drink (and/or use) again, and has cultivated the commitment and the tools to remain sober.  This is complicated stuff, as anyone who has tried a license appeal before and lost knows all too well, particularly if the person was genuinely sober.

That I really understand recover from the inside-out, the outside-in, and from all the clinical perspectives, as well, provides me with a huge advantage as a license restoration lawyer.  So much so, in fact, that I guarantee to win every case I take.  The catch?  I will only take a case for someone who is truly sober.  As far as I know, I’m the only lawyer who writes anything at all about sobriety, and I am completely certain that amongst every other lawyer out there, I have written more about sobriety than all of them combined – and HUNDREDS of times over, at that.  The job of the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers is more or less to “test” whether a person is sober or not, and they are very knowledgeable and do their best to examine the clinical information provided in a license appeal case through the lens of the legal requirements that must be met in order to win.  It is the lawyer’s job to make sure that the clinical evidence submitted meets those legal standards.  That task is a HELL of a lot easier when, as the lawyer, I fully grasp the clinical and practical realities involved in getting sober.  For everything that could be said here, the bottom line is this:  If you’re sober, then you know that sobriety is a journey, and not a destination.

The other day, my paralegal, Ashlee, told me of a conversation he had with a caller who had gotten into trouble because of a relapse after having been clean and sober for a number of years.  She smiled as she recalled telling the caller, “Well, you certainly called the right place with us because we kind of specialize in substance abuse matters.”  I nodded in agreement, but as I began to think about it later, realized how accurate Ashlee’s statement really was.  Every single day, for almost all of the day, my staff and I deal with issues related to drinking and drugs in criminal, DUI and driver’s license restoration cases.  These issues are so central to what I do (more on that in a bit) that a number of years ago, I returned to the University campus (no online classes for me) and completed a post-graduate program of addiction studies.  Between handling DUI cases and driver’s license restoration appeals, issues directly related to the development, diagnosis, treatment of and recovery from alcohol and/or drug use disorders are at the core of everything I do.  In this 2-part article, I want to look at the critical importance of understanding substance abuse issues in the context of DUI (OWI) and driver’s license restoration cases, and in certain other criminal cases, as well.

In a 1st offense DUI case, for example, I use my clinical http://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/SA1.1.jpgtraining to prevent a person who does not have a drinking problem from getting caught up in the court system’s inherent “alcohol bias” and wind up being treated like he or she does.  This means I work to prevent them from getting ordered into unnecessary substance abuse counseling, education and/or treatment.  By contrast, when a person with a 2nd offense DUI tries to explain, as many 2nd offenders do, that no matter how bad things look and how much the court system will “think so,” he or she doesn’t have a drinking problem, I have to make clear that, by law, that every 2nd offender is required to complete some kind of counseling.  I must also make clear that, clinically speaking, no matter how much the person does or does not drink, just by their record alone, there is obviously some kind of risky relationship to alcohol.  I have to help my client see that, at this point, labels don’t really matter anymore.  I deal with it all, from 1st time DUI offenders who quite obviously have a serious drinking problem to 2nd offenders who do not, and really are just unlucky, The same holds true for certain criminal charges, and particularly drug and even marijuana possession cases.

The court system is not (and does not have the resources to be) very nuanced or subtle about a person’s relationship to alcohol, operating instead from the position that, if you’re facing a DUI, you probably have some kind of drinking problem.  Lawyers typically line up to make their money by agreeing with and never challenging a client who say, “not me.”  From a business point of view, the customer is always right, so if a client with multiple prior DUI’s calls in and is looking for a lawyer who will echo that he or she doesn’t have problem, it’s a temptation that’s hard for many to resist.  After all, money talks and BS walks, right?  On the flip side, however, nobody really wants to hire some lawyer who thinks he or she is Ms. Sobriety or Mr. Rehab, either, and won’t fight to protect them.  Where, then, is the balance?  I think it’s fair to say that if we are going to be honest here, we need to acknowledge that a lot of the trouble people get into, especially those that result in DUI, criminal or drug possession charges, are the result of poor decisions made after drinking or using.  Imagine if you asked a law-abiding, non-drug using person, “Would you mind keeping these  Vicodin pills (or this cocaine, or whatever) in your pocket while as we drive around?”  They’d look at you like your nuts – but to a drug user, having them on in their pocket as they travel around in a car doesn’t seem like such a stupid idea.  The point I’m making is that the court system doesn’t have it completely wrong about alcohol and drug problems and how they “ride in” with various cases, but that same system doesn’t always get it right, either.  Not every DUI driver has a drinking problem.  The lawyer must find the right balance between these seemingly competing positions in order to produce the best outcome possible for the client.  Here’s what I mean…

One of the most important issues that I face as a Michigan criminal and DUI lawyer is a person’s prior record.  It is absolutely critical to how things work out in just about every case.  Curiously, it is a subject that has largely been overlooked on lawyer’s websites, mine included.  In this article, I want to take a look at how a person’s prior record can affect the outcome of his or her case, and how this applies across the board, from serious things like 3rd offense (felony) DUI all the way to a simple traffic ticket, and everything in-between, including 1st and 2nd offense drunk driving cases, as well.  This is not a pretty topic, because the simple truth is that it’s not good for a lawyer’s business to be writing things that can make a case seem tougher as opposed to all the things that can make it better, but your record is a necessary topic to discuss, and any lawyer worth a nickel is going to have to address it at some point with his or her client.  I think it’s about time to drag it out into the light and give it a good once-over.

criminal-clipart-criminal-clipart-1-281x300In some cases, the importance of a prior criminal record (or lack thereof) is obvious; for example, in DUI cases, because a person with a prior conviction within 7 years will be charged with a “2nd offense.”  In DUI cases, there is no getting around a case being a 2nd offense or 3rd offense, whereas a person arrested for something like possession of marijuana may be charged and ultimately treated like a 1st time offender, even if he or she has a prior record for the very same thing.  Worse yet, there seems to be little or no logic as to why, beyond just being “lucky,” in a manner of speaking.  In other situations, a person may have a prior record for a completely unrelated offense, or even multiple offenses; those convictions may be recent, old, or a even a combination thereof.  It goes without saying that having NO record at all is better than having any kind of record, but given that a prior scrape or two with the law isn’t that uncommon, lots of very good people have some missteps in their past.  That said, I’m sure the reader understands that the fewer of those on record, the better.  This should make sense without the need for any kind of further explanation.

This can get weird, however, because in the real world, a prior record can be a big deal in some cases, and not matter much, or even at all, in others.  I have, for example, represented someone with a rather bad record charged with his or her 1st DUI and have been able to easily reduce the drunk driving charge because the person doesn’t have any prior drinking and driving convictions.  By contrast, there are some really tough jurisdictions (thankfully most of which are NOT in the Detroit-area) where a single, unrelated and old conviction can be a stumbling block to a plea bargain in a new and completely unrelated case.  With these somewhat extreme and opposite situations serving as bookends, let’s turn now to how things most often play out in the real world.

A big part of being a Michigan DUI lawyer is representing people who have never been in trouble before.  A drunk driving charge is a criminal charge, but the kind of client for whom I handle a DUI is hardly any kind of “criminal.”  Most of my DUI clients are people who have never been arrested before, and therefore never imagined being transported to a police station in handcuffs and spending a night in jail.  Then it happens.  If you’re reading this, chances are you, at least someone you care about, has recently been through a DUI arrest.  If it’s you, then you know it sucks.  If it’s your spouse, partner, sibling, child or someone important to you, you’re probably sharing in the misery.  Let me begin with the good news; Assuming you didn’t hurt anyone, and with the exception of just one Judge in the Greater-Detroit area, there is almost certainly no more jail in your future for a 1st offense DUI.  I say this upfront because I hate how some lawyers pander to people’s fears.  You know the type; they’re everywhere, reminding you of all the ways that a drunk driving charge can ruin your life while selling their services to save you from certain doom.  To be sure, a DUI is serious business, but in more than 26 years, I’ve represented people from every walk of life – from surgeons to sergeants, nurses to nannies, teachers to techies, engineers to bakers – and NOT ONE of my 1st offense drinking and driving clients has ever lost a job, or otherwise been “ruined.”

article-2255011-16B27161000005DC-30_634x603-300x285I wish I could say it was all thanks to me, but the honest truth is that, as scary as all of this can seem, the legal system itself is not designed to destroy anyone’s life over a DUI.  Sure, there is punishment and there are sanctions; the idea is to make it hurt enough so that you won’t let it happen again.  For the most part, that works, at least for my typical client, who is a professional with a lot to lose.  Often enough, a client will present to me with concerns about his or her occupational or professional licensure (everyone presents with concerns about his or driver’s license).  These are all manageable issues, and I mean manageable in the sense that, if handled properly, there will be no interruption or suspension of one’s ability to keep his or her job, or practice in a licensed field.  Still, I understand that there is a kind of persisting mortification that a person experiences after being released from his or her overnight in jail, and the point I want to make here is that while such feelings are normal, they are also, fortunately, misplaced.  The worst is already over.

And therein, really, lies the mystery and the truth.  While a DUI can be a threat to your future, most of the worst consequences aren’t even on the menu in a 1st offense case.  Proper and timely defensive action can protect you from most of the other potential fallout, as well.  The mystery here is the sense of unknown surrounding what will happen – “Am I going to go to jail?” – (no), while the truth is that bundle other consequences that you are at a very real risk to experience.  This is where all that “proper and timely defensive action” comes into play.  And to be clear, “timely” does NOT mean hurry up and hire a lawyer.  On the contrary, you should take your time and get to know the lawyers you’re considering by reading their articles and websites.  There is NEVER a reason to hurry up and hire a lawyer, and the only reason any lawyer would suggest you “act now” or “call today” is so that you won’t continue to look around, explore your options, and find someone else.  Believe me, there is simply no good reason to ever NOT put in the time to really do your homework when it comes to hiring a lawyer.

This article will cover what happens after a blood sample is taken following a Michigan DUI arrest, particularly in the Metro-Detroit area (meaning Macomb, Oakland and Wayne Counties).  Instead of a long, overly-legal analysis of the scientific protocols required of such tests and the results they produce in a drunk driving case, we’ll keep things short here and focus on what you can expect early on.  We’ll also look at how (and why) Detroit-area drinking and driving cases involving blood tests take longer to make it to court than those involving breath tests given at the police station.  In my practice as a Michigan DUI lawyer, “When will we hear something?” is about the most common question asked of me after a DUI arrest with a blood draw.  For most people who’ve had their blood taken, the days following a drunk driving arrest are quiet.  Sure, you’ve been told that you’ll be contacted, but when?  How?  Will the police come knocking at my door or show up at work?

DUI-blood-drawThankfully, the answer is “no.”  I’ve never had that happen in any DUI case I’ve handled, but one thing that does occur sometimes is that the police (or the court) do NOT follow through with any kind of notification, and upon inquiry my office learns that a new client has an outstanding warrant for a DUI charge despite having checked his or her phone and mail carefully ever since the arrest.  To be sure, this is not the norm, but it does happen, and when I’m retained in a DUI case where the client has had his or her blood taken, my office promptly notifies the court, and sometimes the appropriate person at the arresting police agency, as well, so that my client won’t miss any notification.

A big part of the problem here is timing.  If you go to the police station and blow into the breathalyzer machine, your BAC results are printed out immediately.  If your blood is taken, it can take weeks (usually, in the Tri-County area, about four weeks, give or take) before the results make it back to the police, who then must forward everything to the prosecutor.  Blood is always sent to the Michigan State Police Crime Lab for analysis.  There is a lot to understand about how the blood must be collected, packaged, sent and tested, but discussion of that falls beyond the issue of timing that we’re examining here.  And for all of the science you can apply to DUI blood tests, none of it really matters a bit until the results come back.  If you’ve been arrested for a Michigan DUI and had your blood taken, a good and general rule of thumb (at least in the Detroit area) is that it takes about a month to get the results.  And while it used to be that blood tests were almost exclusively given in cases where a person refused to take a breath test, more local police agencies are having them done right out of the gate, instead of breath tests.  I’ve had cases in Oakland County where the person was driven right to the hospital from the scene of the arrest, and other cases in Macomb County where someone like an EMT has been at the police station to take blood right away.

In my roles as a Michigan criminal, driver’s license restoration and DUI lawyer, I have always tried to keep my fees reasonable.  That said, I have never sought to compete with the bargain lawyers, as the level of service that I provide (and which should and does translate into tangible results) is much different from theirs.  For example, I guarantee to win every driver’s license restoration case I take.  Recently, however, health insurance costs have gone way up, essentially becoming the straw that broke the camel’s back in my office, because over the last few years, everything else has gone up, as well.  I’ve held the line on costs until now, but since mine have gone up again, so too, will my fees, although only modestly.  I’m out to cover my increased costs, not build a new vacation home.  While most lawyers don’t go anywhere near publishing their fees or writing anything about them, I do.  That I list my fees in the first place makes me very different from every other lawyer I know; that I’d put up an article announcing and explaining a price increase is yet another way that I’m different, but I wouldn’t do things any other way.  Personally, I won’t do business with any operation that hides its prices or is secretive about costs, and given that one of the current, in-vogue buzzwords is transparency, I think an article about prices is necessary and, well, transparent.

left-feesYou know the old saying, “There’s no such thing as a free lunch?”  Well, it’s not only true, it is an axiom of commerce.  Nobody gives anything away for free.  There is always a motive.  Even if you stop into a furniture store to fill out a card to enter a raffle for a free couch with a “no purchase necessary” disclaimer, the store figures that the cost of one (and you can count on this, it’s not a top-of-the-line model) couch is more than worth bringing hundreds of people into the showroom and have them walk all the way to the back, past all the other furniture, to enter the contest.  Over time, they will clean up on impulse buys that make the cost of the couch well worth it.  I’m no different.  I’m a nice guy, as honest as can be, and have my own motivation for being transparent, but I’m also perfectly glad to share it.  I figure that, by listing my prices, I can save my staff and I lots of time not having to deal with time-wasters and bargain hunters looking for a cheap lawyer.  In fact, just about anyone who emails and inquires “How much do you charge,” beyond having missed the fees I list on both my blog and website, almost certainly can’t afford the services I provide, either.  Hiring a lawyer, at least for the kinds of work I do, is kind of like hiring a laser eye surgeon to fix your vision, or a plastic surgeon to do some cosmetic work:  You can find bargains, and you can find cheap, but you will NEVER find the best in class using those criteria.  That goes for everything.

Of course, you can overpay for a lawyer, as well.  Anything near a $10,000 DUI, for example (regardless of whether it’s a 1st, 2nd or 3rd  offense) is, in my opinion, grossly excessive – unless it results in all charges being dropped.  Given that only about .17 percent of all DUI and DUI-related arrests result in an acquittal after trial, good luck with that (this, in part, accounts for why I attract a disproportionately high number of 2nd offense DUI cases; those clients are experienced, educated consumers and they identify with my candid and direct approach).  Always remember that when you hire a lawyer, you are paying for someone to go make your situation better.  Anybody can promise the world, make everything sound like it will all get dismissed, assure a great outcome, and then do all kinds of work.  The question becomes what work is actually helpful and/or necessary, and the answer involves making sure your lawyer charges enough to thoroughly examine the evidence first (that’s not going to happen with a cut-rate lawyer), and then challenges it when doing so is appropriate, and likely to improve your case, rather than just doing so in a shotgun approach that is really just “busy work” to justify the fee you’ve paid.  These tactics, while making a person feel like they’ve gotten a lot of work for their money, do tend to backfire with the court and cost a lot goodwill.  Judges know who is out to take people for a ride.  Yet for all of that, however, what am I doing with my prices?

We all make mistakes.  In my practice as a Michigan DUI lawyer, I help people get through drunk driving charges as painlessly as possible.  For all of the confusing, legal and technical mumbo-jumbo that lawyers can throw at this, the bottom line is that people make mistakes, DUI’s happen, and everyone who faces a drinking and driving charge wants to get out of the situation with the fewest possible consequences.  In the previous installment on this blog, I explained that I wind up getting hired for a lot of 2nd offense DUI cases because so many people, after having gone through this process once already, and not feeling that the lawyer from their first case was “all that,” start doing some serious research online and come across the information I put up, essentially confirming its accuracy based upon their prior experience.

keep-calm-because-stuff-happensIn the DUI area of website and on the DUI section of this blog, I try to examine every aspect of drinking and driving cases.  That was an easier task when I first began, but now, having done that from just about every angle possible, I have pretty much covered it all within my articles.  To keep it fresh, I often try and write about subjects that are the things I’m most often asked about because I know that there is someone is probably searching for that very information.  In this article, I want to talk about the reality that getting arrested for a DUI sometimes just “happens.”  Think about it; no one plans on going out and driving drunk, much less getting pulled over while trying to get home.  You can analyze it anyway you want, but the truth is that DUI’s just “happen.”  Of course, some people are inclined to overthink things, and will try to examine a particular DUI incident to find an underlying cause, kind of like an “autopsy” on the event itself.  Sure, sometimes there is more to getting popped than just bad luck or chance, but getting into all that analysis kind of reminds of how some people approach nutrition.  We all know someone who counts carbs or fat grams or whatever; maybe they even sound smart as they explain how much they’re enjoying NOT eating pizza (yeah, right).  To me, that’s a waste of time.  Instead, I think of my dad, who was a mailman, an athlete, and who was always active.  He ate bread and butter and hot dogs and pizza, yet, despite that, was in great shape his whole life.  He did just fine right into his 90’s without all the BS of over-analysis.  You can do the same with a DUI.

If you’re arrested for a drinking and driving offense, the “why” of it doesn’t change anything, either.  Who you are matters more than why you were.  Someone pulled over for weaving and who says that he or she over-celebrated something will be treated the same as someone whose whole family was recently sucked away by a tornado.  And I’d bet that, in neither of those cases, did the person go out with any intention to drive drunk, even if the plan was to go out and get drunk in the first place.  In the real world, there is almost always this thought-gap between the actual partying and then getting home, or getting around.  Driving drunk is almost never intentional; it just happens.  The problem, however, is that if you’re facing a 1st offense DUI, absolutely none of this is a defense, nor can it help you get out of trouble.  So, what do you do?  First, let’s ease your worst fear; if you are facing a 1st offense DUI, you’re not going to go to jail (there is one Judge in the Detroit area who is a possible exception to that, but unless your case is assigned to her, jail is just NOT on the menu).  This means you can stop wasting your time and skip blowing the family fortune on some lawyer whose big pitch and main offering is to keep you out of jail, because you’re not going there anyway.  That’s like a dentist promising to fix a cavity so that you don’t get brain cancer – not going to happen….

As a Michigan DUI lawyer, I frequently find myself answering questions about what will happen to a person’s driver’s license as a result of a drunk driving case.  In this article, I want to shift the focus from what will eventually happen to your license, down the road, to the what that paper license that sitting in your wallet right now is all about.  I have done numerous other and thorough examinations of license consequences in both the Michigan DUI section of my website and in various articles within the DUI section of my blog.  Here, we’ll direct our attention to the legal and practical implications of having your physical driver’s license destroyed and exchanged for a temporary driving permit, and exactly what it “permits.”

8828683_yes-cops-can-pull-you-over-for-an-obscured_3cef2cdc_mMichigan DUI law requires the police to confiscate and destroy your physical driver’s license at the time of an alcohol-related driving offense, like OWI.  The police must give you a temporary driving permit (it is called a section 625 G permit) and then enter this information so that your Michigan Secretary of State (SOS) driving record will promptly reflect what has happened.  Imagine, for example, that a person is arrested for a 1st offense DUI and is in an accident a week or so later; the police who respond to the scene will ask for his or her driver’s license, and all he or she will have to give is the paper license (without a photo, no less), so the driving record better confirm that.  The most important thing about this temporary driving permit, and really, the most important point of this article, is that it is a “full” license and does not, in any way, further restrict your ability to drive.  The key word there is “further,” because although the Michigan Temporary driving permit does not restrict your ability to drive, neither does it confer any additional driving privileges that you did not have at the time of its issuance.  Thus, if your license was already restricted at the time of your DUI arrest, the temporary driving permit means that you can still drive, but only in accordance with the restrictions that were already in place.

The easy way to understand this is that the temporary driving permit is the same thing as if you actually lost your wallet, with your license in it, and then went to the SOS for a replacement, and while you waited for your new picture license to arrive in the mail, had to carry a paper temporary license.  This is a subject about which many people are confused, and I can only surmise, somewhat ashamed to ask.  Let me repeat this to make it clear:  If you have been arrested for a drinking and driving offense in Michigan and have been issued a temporary driving permit, there is absolutely no restriction on your ability to drive that wasn’t already there before the incident.  If you had a full license at the time of your arrest, you have a full license thereafter, and until further notice from the SOS.  Things are different, however, for those who refused the breath test and have been given a temporary license on a special form entitled “Officer’s Report of Refusal to Submit to Chemical Test.”  If you have been given that form, you still have a full license, but only for a while.  Lets’ explore this further…

Perhaps the single best and most valuable piece of legal advice that can be given to anyone being questioned by the police is to “shut up.”  Seriously, don’t say anything.  In my role as a criminal, DUI and even driver’s license restoration lawyer, if I could wave a magic wand and get my clients to do just one thing, it would be to keep quiet.  In this article, I want to take a quick and simple look at the value of silence, and how the natural urge to speak complicates just about everything.  Chances are, if you’re reading this because you’ve been charged with a crime , a drinking and driving offense, or need to get your driver’s license back, and you’ve probably said things along the way that you’d like to take back.  Although less frequently a problem in DUI cases, a situation just crossed my desk yesterday (the inspiration for this article, in fact) where someone who should not have said anything probably talked themselves right into a drunk driving charge.

raf,750x1000,075,t,5e504c_7bf03840f4.u2In that case, the person (I will use  “he/she” or “they” to avoid even a gender identification) had been in an automobile accident caused by the other driver.  This person left the scene, but the other driver got the plate and the police showed up at his/her home.  The person was rather drunk when the police came, and when asked about whether he/she had been drinking before driving and at the time of the accident, the person admitted to having done so, and having been drunk at the time.  Subsequently, the person tested out with a rather high BAC.  Although I cannot say much more, charges will be coming.  The problem here is that had this person simply NOT said anything, the police would have been faced with an almost certain inability to prove that he/she was over the limit at the time of the accident, effectively killing the likelihood of a drunk driving conviction.

I see this all the time in criminal cases, as well.  Let’s use an indecent exposure case for an example.  Imagine the police get a call about a guy exposing himself while driving on Main Street.  The caller can’t give a great description of the driver, but does give a license plate number.  Running that information, they identify the car as belonging to Fred, and the police contact him.  They ask Fred if he was anywhere on or near Main Street at the relevant time, and he answers “yes.”  With that answer, Fred has just seriously helped the case against him.  Now the police know that Fred was in the area at or around the time the caller said she was flashed.  Had Fred just said nothing, the police would probably not be able to prove he was even in the area, much less that he flashed anyone.  Fred, like so many people, probably had pangs of guilt and the inner turmoil of just knowing that the police “know” (knew) that he did it, so he thought it would be better to be honest.  To be clear, in most cases, the police do “know.”  Cops are smart, and most police officers develop a better sense of human nature than anyone in any other profession.  A street cop learns to read facial expressions and body language in ways you and I will never comprehend.  Still, “knowing” something is one thing, but being able to prove it is quite another.