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September 8, 2014

Michigan Driver's License Restoration and DUI cases have a lot in Common

I am a Michigan DUI and driver's license restoration lawyer. At their core, DUI and license restoration cases are interconnected, and really share the same family DNA. To be clear, you can be a DUI lawyer and not know anything about license restorations, but it is hard to imagine a being a license restoration lawyer without a thorough understanding of the Michigan drunk driving laws. The overlap of these 2 fields is rather broad, and accounts for why I spend almost all day, every day, dealing with DUI issues, although sometimes from very different perspectives.

two-sides-same-coin 1.2.pngAs a DUI lawyer, my job, whatever else, is to minimize the actual consequences you will experience when you face a drunk driving charge. You hire a dentist to make your teeth problems go away, a mechanic to make your car problems go away; in the same way, you hire a DUI lawyer to make your DUI problem go away. As a Michigan driver's license restoration and clearance lawyer, my job is to win back your driver's license, or, if you live out of state, to win a clearance of the hold placed on your record by the Michigan Secretary of State.

As a lawyer with a conscience, I believe my job is to really help my client, meaning really produce a benefit for him or her, but I cannot imagine doing that without understanding the full dimension and interaction of DUI and driver's license sanctions. To be clear, there are plenty of aspects to this that are easy, and obvious. Everybody knows, for example, that a DUI brings driver's license sanctions. Fewer people, however, understand the subtle but important interplay of and differences between criminal (or court) license sanctions and the administrative sanctions imposed by the Secretary of State, independent of anything done in the underlying DUI case.

Important in every DUI case is a person's bodily alcohol content, called a BAC, at the time of his or her arrest. There is a huge body of science behind how a BAC result is calculated; most of it, however, applies to the results obtained from a police station Datamaster breath test, or a blood sample tested by the Michigan State Police. It is a related, but slightly different science involved in the breath testing done by an ignition interlock device. The relatively new High BAC offense in Michigan requires that a person convicted of that offense drive with an interlock on his or her vehicle for about 10 months, as does a multiple DUI offense driver getting a license through a sobriety court. Similarly, anyone winning back a license through the Michigan Driver Assessment and Appeal Division (DAAD) has to drive with an interlock for at least a year, as well. But there are differences...

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September 6, 2014

Summaries: Detroit-area DUI (self-help) - Michigan License Restoration (the Evaluation)

1. Your role in a Michigan (Detroit-area) DUI case

In this week's first article about DUI cases, I noted how the superb outcomes in the 4 DUI cases I handled in the Detroit area the preceding week, and referenced in the article before that, were partly the result of my client's direct interest and participation in their cases. In each of the 4 cases I discussed, my clients were motivated to take the necessary steps to make things better. I had 2 High BAC charges dropped all the way down a beyond simple OWI charge to the least severe "impaired driving" charge, saving each client's ability to drive. I was able to take a 2nd offense charge, get it reduced to a 1st offense, and then see that my client didn't get socked with expensive or difficult probation, winding up with only non-reporting probation, instead. In another 2nd offense case, I found a legal issue to challenge the evidence and expect to have the case dismissed. Here are the major bullet points from that article:

  • It takes your input to make a DUI case better
  • Your input in your DUI case can be as little as just paying attention
  • We're talking a few hours, not days
  • The payoff is absolutely huge
  • The most important part of a DUI is what happens to you, as well as what does not
  • The mandatory alcohol screening is the primary tool used to determine if your drinking is a problem, or you are at risk to develop a problem
  • Being thoroughly prepared to undergo that screening is key
  • I have more than just 24-plus years' legal experience - I am involved in the formal study of alcohol and addiction issues at the post-graduate, University level
  • This all comes together to make sure you aren't seen as having or being at risk to develop a drinking problem
  • It also means protecting you from burdensome and expensive counseling that you can avoid
  • The real measure of "success" in any DUI case is more about what does NOT happen to you
  • Avoiding consequences, including driver's license consequences, is really the end goal
Now, on to driver's license restoration and the role of the prognosis on the substance abuse evaluation form...

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September 1, 2014

How you can make your Detroit-Area DUI case Better

In the previous article from last week, I wrote about 4 DUI cases I handled in several Metro-Detroit area courts, and how I produced extremely good results in each: A 2nd offense DUI reduced to 1st offense with non-reporting probation; another 2nd offense drunk driving that will likely be dismissed; and 2 High BAC cases dropped all the way down to impaired driving charges, saving each client all kinds of money, not to mention driver's license problems. While I want to take credit for what happened (and, every bit as much, what didn't happen to my clients), the truth is that each one of my clients can also take his or her share of the credit for their cooperation and participation in producing those outcomes. Just like a patient has to follow up with doctor's advice to heal an injury, making things better in a DUI case requires client follow-through, as well.

Help-Needed 1.2.jpgThis means that if you are really serious about avoiding as many of the negative consequences of a drinking and driving charge as possible, you'll do what needs to be done to make that happen. There are always a few people who can be rather stubborn when it comes to neglecting or refusing to do things to make a situation better. You sometimes see this in medical situations: People refuse to finish medicine, skip physical therapy, or otherwise don't complete whatever their doctor tells them to do. The point of this article isn't to attack anyone, but rather show how intelligent follow-through helps maximize results.

For somewhat obvious reasons, I tend to pair with more cerebral clients. This blog contains more real-world information about Michigan DUI and Michigan license restoration and clearance issues than a law library. Most of my articles are of reasonable length, but I'm an explainer by nature, so I eschew the so-called "style" of a few sentences (mostly conclusion) strung together and calling that an article. I don't like the use of scare tactics, and I hardly think that any piece focusing on all the bad things that could happen in a DUI case qualifies as an "article." Thus, I write the way I would want to read if I was looking for information.

The upshot of this is that my clients tend be more of the analytical type, and most of them come to my office motivated to do whatever can be done to make things better. Some people even show up with a notepad, although that's not necessary - I keep one on my desk for just that purpose. My first appointment with a new DUI client takes at least 2 hours. I like the kind of clients I have; that only makes sense, because I am essentially writing to and for them. The flip side of that, however, is that I am not a particularly good fit for someone who isn't interested in anything beyond just paying for my services. There are plenty of bargain lawyers out there who will take your money and keep everything short and move the case through at the speed of light, although that will never produce a first-rate outcome, even by chance or luck. Beyond your money, I want your interest and your input. In other words, I need your help.

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August 29, 2014

Michigan DUI Lawyer - Examples of Success

This article will be about the great results I produced in the 4 DUI cases I handled this past week in the Detroit area. On my website and within the numerous DUI articles on this blog, I examine and explain almost every aspect of Michigan DUI cases in careful detail. Here, we're going to look at what all that analysis, knowledge and strategy actually produces. While I am certainly at the head of the class in terms of exploring how DUI cases work, I haven't been so good at taking it to the next level and showing off the results. To be perfectly honest about it, while I am supremely confident in my own abilities and certainly proud of what I regularly accomplish, I am somewhat modest and really don't like to do anything that seems like outright bragging.

Good Work 1.2.jpgRecently, both Ann, my senior assistant, and my web team have told me to do this. It has always seemed to me that the more cerebral reader could figure out from the kinds of articles I write that I produce exceptional results in Detroit-area DUI cases. I'm not nearly as shy about criticizing bargain, cut-rate legal services offered by some lawyers as I am to point to my own achievements. To me, it seems rather obvious that the top tier of DUI lawyers don't tout their finest attribute as being the cheapest, or otherwise use the same worn-out labels for themselves like "aggressive," "experienced" or "tough." Yet I have to admit that I have been behind the curve in posting my real-world results because I hate coming off as boastful. Apparently, I need to do just that, so I'll oblige. Since I handle so many DUI cases, we'll look back at the 4 DUI cases I handled in court this past week.

I don't know how to put this without sounding self-important, so I'll just be direct: I don't want to be too specific about the court or parties involved in the cases I'm about to review, because I don't want to draw too much attention to the kinds of deals I can get, or the outcomes I produce, only to have there be some kind of "law and order" backlash. If I'm going to venture into this territory, then I might as well be upfront about the fact that I expect to produce the very best outcome humanly possible in every case I take. I expect to produce a result better than almost everyone else.

When it comes to protecting my clients from the implications of an alcohol problem that is, or is not present, I can safely say that I am without equal. I am actively and currently involved in the formal study of addiction and alcohol issues at the post-graduate (meaning one already possesses a graduate degree) level. There is no lawyer or Judge who knows more about the onset, development, diagnosis, treatment and recovery (including relapse) from an alcohol problem than I do. This makes me the expert in the courtroom about what does, and, more important in many cases, what does not constitute a drinking problem. Now, on to those cases...

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August 4, 2014

Michigan DUI - A good Record Matters

Very often, when a new DUI client sits across the desk from me, one of the first things they want to me to know is how much the DUI charge is out of character for him or her. Chances are, if you're facing a DUI charge, and even if you've had one (or even more than one) in the past, you feel that this situation is not representative of who you are as a person. It is not unusual for a new client to somewhat sheepishly begin by saying something to me like, "I'm sure you hear this all the time," or "I know it probably doesn't matter, but...". While the reality is that I do "hear this all the time," it is also true that who you are as a person does matter, as does the fact that a DUI charge presents a distorted impression of your true character.

Thumbnail image for Thumbnail image for Smileysmall.jpgI can attribute some of this to the type of clients that I serve. Beyond all the hype about experience and qualifications, if you take the time to read even a little of my voluminous writings about DUI, you should (or at least I hope you do) glean that I'm a pretty nice guy. For better or worse, I suffer from "nice guy" disease. I have a conscience (it tends to just cost me aggravation, time and money), and I live by the rule that you should treat others as you wish to be treated. I'm the kind of guy that gets roped into doing things like inconvenient favors that eat up time I don't have, and I chalk that up to the cost of being a friend. Being the proverbial "nice guy" also means that I'm forever stuck in the "do the right thing" mode, which means that I will leave no stone unturned in trying to make everything better for my clients.

Fortunately, the karma payback for this is that I have a client base that is mostly made up of really nice people, as well. My clients are people with good jobs and who worry about the implications a DUI; these people have lots of questions and concerns, and are looking for a comfortable, conversational environment in which to find answers. I'm pretty much the guy for that, and I tend to be found by people who likewise have that kind of kinder, gentler and talkative soul. So how does any of that matter in a DUI?

About the first thing you figure out in a DUI situation is that being a good person is far from enough to get you out of it. If you're you're lucky, you'll get a nice police officer who might even acknowledge your cooperation. That's great, but it sure would be a lot better if he or she just made you get a ride home, right? That, however, never happens. Amongst all the political correctness and concern about safe driving, DUI cases are also a prime source of revenue for police departments and municipalities. One of the more frequent questions I get is whether or not it matters if a person has never been in trouble before. Rest assured, stuff like that does matter, but not enough to make a DUI just "go away". Yet we can still use all of your achievements and good qualities, called "social capital," to your advantage (while also understanding that the court system wants a piece of your financial capital). Let's look at how this works...

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July 18, 2014

One Michigan DUI Lawyer to Another

The day before I began writing this article, I received an email from another Detroit area DUI lawyer who commented on some of my DUI blog articles. He indicated that he agreed with some, and disagreed with others. As it turns out, this lawyer is a substantial player in the DUI world. I have attended seminars where he has spoken, and I am familiar with his work. My first instinct was to recoil defensively and say something back. However, his message to me was both complimentary and factual. There was nothing for me to get mad about. On top of that, given his stature, I was honestly flattered that he would give me the time of day in the first place. He may see things differently than I do on some points, but I'd be a fool not to reevaluate anything I have written in light of his opinion regarding it.

Businessguys 1.2.jpgIn the past, I have referred a few cases his way. While it may seem that we share the same pool of prospective clients, the reality is that, for the most part, our respective clienteles don't overlap nearly as much as one might at first think. To be sure, I have been rather generous in describing myself as "different" and unique. I put out a lot of useful information about DUI and driver's license restoration, and I am not shy in directing anyone to it. In terms of driver's license restoration cases after multiple DUI convictions I would be less than honest if I didn't admit that I think of myself as THE guy. The DUI field is far more crowded, however, and I am sometimes critical of the various approaches taken by some lawyers. I want to clarify a few things about that here.

First, I absolutely believe that there are too many lawyers with hands out for your money that will charge far more than they are worth, or will be quick to produce a result not in line with how they make things sound and the cost of the services they provide. This does not apply to the lawyer who emailed me. The problem is that while he is the "real deal," there are too many other lawyers who just try to be. In short, you have to do some homework as a consumer to protect yourself from getting fleeced.

Second, the legal business is no different than any other in the sense that there is a lot of money to be made telling people what they want to hear, rather than what they need to hear. In this regard, I am different because I tell it like it is. It would be a lot easier for me to join the party and play off of people's hopes and fears, but I have this hard-headed notion of trying to be moral and do things right. This whole "being honest" thing winds up costing me a lot of money, but I get this idea that "karma" will somehow wind up paying me back somewhere down the road. Apparently, however, whatever payday I'm hoping for, it doesn't seem like it will happen at my bank. Scare tactics and promises that sound (and often are) too good to be true seem to be a big trend in DUI marketing. I refuse to do that...

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July 14, 2014

Success in a DUI case means what doesn't Happen to You

The best outcome in any DUI case is to get the whole thing dismissed, or otherwise beat the case, so that nothing happens to you. Most people, however, aren't so completely lucky. Short of nothing happening as a result of a DUI arrest, the less that happens to you, the better. In a very real way, success in a Michigan DUI case is judged by what doesn't happen to you.

Less-is-More-Final-1.2.jpgWe can see that sometimes, in a high-profile DUI case, a Judge will order community service in order to remind a celebrity that he or she is not above the law, and subject to the same rules as everyone else. Getting caught speeding in your 2014 Lamborghini after having a had a few too many doesn't entitle anyone to any better treatment that someone caught weaving on I-696 in his or her 2004 Chrysler Sebring. In the real world, less community service (or even none), and really less of everything, is the yardstick by which "success" is measured in terms of a DUI outcome.

You've probably already figured out that unless your DUI gets thrown out of court, you're going to wind up on probation. This is true even in 2nd and 3rd offense cases. Interestingly enough, there are still a few places where, at least in a 1st offense DUI, if everything is done just right, a person can either skip probation altogether, or, at least wind up on what's called "non-reporting" probation. Non-reporting probation means that all you have to do is not get in trouble for however long the Judge orders, and everything will be fine. In a recent 3-part series of articles, I examined what "probation" means, and I reviewed the different "do's and don'ts" of probation. Here, it's more relevant to talk about how you get on probation, meaning the process by which you wind up standing before the Judge and are ordered to follow that list of "do's and don'ts."

Michigan law requires that, in a DUI case, before the Judge can pass sentence, you must complete an alcohol screening (written test). This is handled by each court's probation department, and is part of a larger process called a "PSI," or pre-sentence investigation. The "PSI" can also simply be called the "screening," or "assessment." No matter what it's called, it boils down to the same thing, in every case, and in every court. Once your charge has been resolved, and before you come back to court to be sentenced by the Judge, you have to be interviewed by a probation officer, who will also hand you a written test to fill out. This test is scored, numerically, and the probation office compares your score to a scoring "key" to determine what kind of risk you present in terms of having or developing a drinking problem. This is hardly any kind of clinical assessment, but it is, unfortunately, exactly how the law does things. Even so, we can make it better...

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July 7, 2014

What Things can you Expect on Probation for a DUI? (Hint: It won't be Chocolate)

In the previous two articles, (DUI and Probation in the Metro-Detroit Area and How you get on Probation for a DUI) we have been exploring probation in a Michigan DUI case. In the first article, we outlined that probation is an alternative to jail, and that it really amounts to a series of "do's and don'ts" that are ordered by the Judge. We saw that in a DUI case, probation will always at least require a person to abstain from consuming any alcohol, and, additionally, that a person must otherwise not get in any further legal trouble, either. We then looked at the steps that lead to a person winding up on probation. Here we reviewed the required alcohol assessment that's part of the larger overall process that takes place before the Judge sentences a person. That process requires, in the end, that the probation officer administering the alcohol screening assessment provide a written sentencing recommendation to the Judge to be used in deciding a person's DUI sentence. To come up with that recommendation, the probation officer will meet with and interview the DUI driver, give him or her the alcohol assessment (test), score it, gather whatever other information he or she believes relevant, and then combine all that in the sentencing report. In the final analysis, that sentencing recommendation is really a blueprint for what kinds of things a person can expect as conditions of probation.

Boxcho 1.2.jpgThis third and final article in our loose series will be an overview of what we mean by "conditions of probation," and will explore the things a person can expect for probation in a Detroit-area DUI case. Here, I have to qualify things, because I practice what I preach, and by that I mean that I generally concentrate my DUI practice to the Tri-County area of Metro-Detroit, and will include in my circle DUI cases in Lapeer, Livingston and St. Clair Counties, as well. I won't take a DUI case beyond these areas, however, because I don't have the opportunity to get to any courts beyond these 6 counties regularly enough to be able to offer any real experience there, and it has always been my standard to be able to tell my client what is likely to happen based upon real-world experience.

Let's look at how DUI probation plays out in roughly best to worst-case scenarios:

There are still a few courts left (none, by the way, in Oakland County) that will wrap up a 1st offense DUI without probation, and just impose fines and costs. Anyway you look at it, no probation at all beats the hell of any kind probation. There's not a lot more to say on this point.

If you're going to get probation, however, then non-reporting probation is as good as it gets. Just like it sounds, non-reporting probation means you don't have to report. Most probation is reporting probation, meaning that you have to come in (usually once a month) to the probation department and check in with your probation officer. In non-reporting probation, you never have to check in. Here again, Oakland County proves to be the "toughest," with the fewest number of non-reporting dispositions. The exceptions tend to be allowed in cases where a person lives out of state, or lives far away (this happens with students who will live away, at college). Non-reporting probation usually lasts for a year, although the final decision about that is, of course, up to the Judge.

Continue reading "What Things can you Expect on Probation for a DUI? (Hint: It won't be Chocolate)" »

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June 30, 2014

How you get on Probation for a DUI

In the prior article about Probation in a Michigan DUI case, we outlined how the Judge will require a person to do certain things, and not do others. Chief amongst the big no-no's is using alcohol or drugs. We noted that, as easy as that sounds, lots of people trip up and wind up testing positive while on probation. In this article, I want to look at how the various conditions of probation wind up being ordered in the first place. This subject is rather more involved, so this article will be noticeably longer.

MDOC 1.2.jpgThe conditions of probation a person must fulfill don't just pop into a Judge's head out of thin air. In all Michigan DUI cases, the law requires that that a person undergoes a mandatory alcohol assessment. This means you'll take a written test, sometimes also called a "substance abuse evaluation" or "alcohol screening." At least in the Detroit area (Macomb, Oakland and Wayne Counties), where I regularly practice, as well as Lapeer, Livingston and St. Clair Counties, where I am often enough called upon to handle DUI cases, the alcohol assessment is handled exclusively by the court's probation department.

The alcohol assessment is part of a larger overall step in the DUI process called a "PSI," which stands for "pre-sentence investigation." The mandate that a person completes an alcohol assessment also requires that the results of that assessment be sent to the Judge. The assessment, then, is really a "test" to determine if a person has, or is at risk to develop a drinking problem. This is huge. In fact, in a DUI case, this is just about everything, and certainly the single most important thing that will determine what does and does not happen to you.

The way it works is this: You take the written assessment (test), and it is scored. In addition, you will be interviewed by a probation officer, who will gather information about you, including any past record (especially DUI's) you have, your upbringing and what you're doing in life right now (gainfully employed or unemployed). All of this, including (and especially) your alcohol assessment screening results are put together in a written report and recommendation that is provided to the Judge for his or her review and use at your sentencing. The law requires that you review this report with your lawyer prior to going before the Judge for sentencing.

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June 23, 2014

DUI and Probation in the Metro-Detroit Area

If you are facing a DUI in Metropolitan Detroit, then you are also quite likely to wind up on probation, as well. As a Michigan DUI lawyer with nearly a quarter century of experience in Macomb, Oakland and Wayne counties, I know how things work in all of the local courts. Because I exclusively concentrate my practice in the Tri-county area, I can speak from a position of authority about what happens here.

Thumbnail image for probation-officer 1.2.jpgThe first order of business in any DUI case is to obtain and examine the evidence. If there is a chance to beat the case, it almost always lies in finding something wrong with the evidence, or the way it was obtained. To be clear, I'm not suggesting that there is always something wrong with the evidence, but rather that it must be examined carefully to see if there are any irregularities regarding it that can be used advantageously. The simple fact is that most DUI cases don't present themselves with all kinds of evidence problems, begging to be thrown out of court. Some people blow an absolute fortune in legal fees chasing the hope that their case will be an exception, only to get a hard and expensive lesson in reality when it doesn't happen.

For the most part, anyone interested in finding out what probation is all about probably hasn't been on probation, so the likely reader of this article may very well be someone facing a 1st offense DUI charge, and who has little or no prior record of any kind. This article will be the first in a loose series about probation in DUI cases. It is worth noting that probation today is different than it was as recently as half a dozen years ago, so anyone who has been on it before might be surprised to find out that things have changed, and not necessarily for the better, either. So what is probation all about, really?

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May 23, 2014

Michigan DUI Defense - Either make Things Happen, or Watch them Happen

In my role as a Michigan DUI lawyer, I handle a lot of 3rd offense (felony) drunk driving cases. Within some of the DUI sections of my website, I examine the importance of examining and challenging the evidence as well as reviewing the video, if any, of the traffic stop and the field sobriety tests. The hope is to get a DUI charge "knocked out" if at all possible. In some of my DUI articles, I explain how, in some cases, a 3rd offense felony DUI charge can be reduced to a 2nd offense misdemeanor by way of a plea bargain. Those are all relevant and valid considerations in any drunk driving case, but there's more to it than just that.

Wall 1.2.jpgIn this article, I want to step away from all the "what if" kinds of questions, and direct the focus to what should be done in those cases that aren't likely to be thrown out of court for defective evidence and the like. Although this article is directed to someone facing a 3rd offense, it also applies pretty much equally to 2nd offense DUI charges, and even some first offense drinking and driving charges (particularly High BAC cases), as well. Here, we're going to survey the role of treatment and counseling in a DUI case, and how it can be used to make your legal predicament better.

This is important, because if you've already racked up 2 prior DUI's, then you know something about the realities of DUI cases being easy to beat. Look, I'm in business to make money, but the cold, hard truth is that most DUI charges don't get tossed out of court. If you are facing a 3rd offense DUI charge, or any DUI charge for that matter, your plan better include more than just hoping it gets dismissed.

The point I am making is simple, but also important for anyone dealing with a Michigan drunk driving charge: Every possible angle should be explored, and every possible thing done, to try and beat the charge, but even on the chance that won't happen, you better take the right steps to minimize the consequences (particularly jail) that you potentially face. In terms of the lawyer you hire, there are 2 kinds:1. Those who make things happen, and, 2. Those who watch them happen.

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May 19, 2014

Michigan DUI and what Happens to your Driver's License - Part 2

In part 1 of this article, we began an examination of the consequences to your driver's license in a Michigan DUI case. We established that there are 2 preliminary things to keep in mind before we can answer the question "what will happen to my driver's license?" First, and particularly in 1st offense DUI cases, we noted that the original charge for which you were arrested (often "OWI" or "High BAC") may very well be dropped down, so that what you wind up "getting" on your record may be far less severe, and may not have anywhere near the impact to your ability to drive as would otherwise be the case with the offense written on your ticket, or otherwise appearing on your court notice. That's the good news

Second (and this is the bad news), we established that for anything after a 1st offense DUI, the Michigan Secretary of State simply counts the number of total "alcohol related traffic offenses" (meaning DUI's) and automatically imposes license consequences, regardless of how the case is resolved in court. This means that, as far as driver's license sanctions are concerned, the only thing that matters is the number of DUI (or DUI-related) convictions a person accumulates in either a 7 or 10-year period.

Littleguydriver 1.3.jpgIn this 2nd part, we will look at he actual driver's license consequences that the state, meaning the Secretary of State, will impose for the most common DUI convictions. To be clear, license sanctions are only imposed by the Secretary of State, and not the court. A court cannot, under any circumstances whatsoever, take any action against a driver's license in a DUI case. No matter what the facts, the judge cannot modify anything done by the Secretary of State regarding DUI license sanctions, because the penalties described below are absolute.

It makes sense to examine the driver's license sanctions, or penalties, from worst to least severe. To keep this article of manageable length, I'm not going to get into the penalties for death or injury DUI cases. It should suffice to point out that if you find yourself facing one of these charges, you're at risk of losing a lot more than just your driver's license and have bigger concerns and risks to worry about. In order of severity, this is what happens:

For a 3rd offense DUI, meaning any combination of 3 alcohol-related traffic offenses - OWVI, OWI, High BAC convictions, and including 1 prior "zero tolerance" conviction within 10 years from the date of the conviction of the oldest offense to the date of the arrest for the most recent offense, the driver's license will be revoked for a minimum of 5 years. There is NO appeal to any court, and a person can only win back his or her license by filing (and winning) a driver's license restoration appeal with the Michigan Secretary of State's Driver Assessment and Appeal Division, also known as the DAAD.

This can be confusing, because criminally, a person can be charged with and convicted of a 3rd offense for any combination of 3 DUI's within his or her lifetime. The 3rd offense charge has nothing to do with any time frame, whereas the 3rd offense license sanctions are completely dependent upon those 3 DUI's all taking place within 10 years.

This is so important, it bears repeating: All driver's license penalties are set in stone, and there is absolutely no way around them. There are no exceptions, no hardship appeals, and nothing that can be done other than to suffer through them. The state does not have any mechanism to "care" what effects loss of a license will have in your life, meaning it does not "care" if the license sanction will cost you your job. Nothing can be done, even if you are a single mom and you have to drive your kids to school or need to take a dependent, elderly person to the hospital for life-saving medical treatments. The state simply counts alcohol related driving convictions, and if they fall within the clear and simple framework (3 within 10 years or 2 within 7 years), then the corresponding penalty is automatically imposed.

Continue reading "Michigan DUI and what Happens to your Driver's License - Part 2" »

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May 16, 2014

Michigan DUI and what Happens to your Driver's License - Part 1

In Michigan, there is always some kind of action taken against your driver's license for a DUI conviction. If you're facing a DUI, you probably want to know what will happen to your license. If your DUI case is over, particularly if it was a 2nd or 3rd offense, you may be wondering what can be done to get your license reinstated. As a Michigan DUI and driver's license restoration lawyer, I deal with these issues all day long. It sometimes surprises me how many lawyers trying to handle a DUI case really don't understand the full nuances of both the criminal (DUI) law and the law under which the Michigan Secretary of State must impose license consequences.

This goal of this article will be to clarify some of the more common issues regarding what will happen (or has happened) to your driver's license after a Michigan DUI conviction, as well as an attempt to straighten out some misconceptions. I'll divide it into 2 parts. In this first installment, I will outline a few general points about how DUI license consequences are meted out. We will also examine the 2 critical perquisites to understanding how and why Michigan DUI driver's license sanctions work as they do. In the 2nd part, we will jump to an examination of 1st, 2nd, and 3rd DUI offenses and see what happens in each case. Beyond presenting a kind of matrix of what happens, the reader should be able, after this 1st part, to understand why.

CyberDriver 1.2.jpgWithin a few days before writing this article, I was speaking with a fellow facing a 3rd offense DUI who repeated what he had heard from his previous lawyer about the license sanction (penalty) for this case. That lawyer was dead wrong about what would happen to his driver's license; I was able to assure the caller that despite being a "3rd offense," because this was neither his 3rd DUI within 10 years, nor his 2nd within 7 years, he would only face the license sanctions for a 1st offense DUI. If this sounds strange, then you can understand why so many misunderstandings abound.

Some people don't have the interest or patience to put in the time to figure all of this out. I'm not going to turn this into something complicated, but DUI license sanctions are kind of like a DVR or a new cellphone; you have to spend at least a few minutes to get a grip on things work. In order to get that "grip," there are 2 simple concepts that we need to get straight:

First, in a 1st offense DUI case, despite whatever charge you are facing now, there is a pretty good chance that, if you have a quality DUI lawyer, you will be able to get the original charge knocked down to something less serious. If you have been arrested for "OWI," which stands for "operating while intoxicated," your lawyer will likely be able to negotiate the charge down to something not nearly as bad, like OWVI, which stands for "operating while visible impaired." The same holds true if you have been charged with "High BAC." Even in that situation, a reduction to "OWI," or even "OWVI" is anywhere from reasonably possible to rather likely, depending on the circumstances of your case.

This is significant because if you come home and start looking stuff up on the internet, and you punch in the charge on your ticket or bond receipt, you will find about the license sanctions that apply only if you are convicted of the original charge. Of course, you probably cannot predict what kind of "deal" can be worked out in your case, but many people begin freaking out over all the scary sounding potential consequences they face without slowing down enough to realize those things are unlikely. This is a lot like prescription medications where the disclaimer for side effects sound so ominous - risk of stroke, heart attack or even death, just to name a few. Fortunately, in the real world that stuff rarely happens. Most DUI cases work out much better than you probably fear, at first.

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May 12, 2014

The Reality of DUI Charges in Metro-Detroit

Every Michigan DUI case begins with an arrest. When you look back, it becomes fairly obvious that the arrest itself was just about a foregone conclusion the moment you were asked to step out of your car. No matter what line of work you're in, you just come to "know" certain things from experience, and most police officers become very good at "knowing" when a person is over the limit for alcohol. In the real world, almost every traffic stop that progresses to include field sobriety tests ends up with a drunk driving arrest. How many times do you think the police pull someone over, see behavior that makes them suspect the person is drunk (particularly at 1 or 2 in the morning), only to discover the person really is sober enough to drive? How many times have you won the lottery 3 days in a row?

Reality 1.3.jpgI want this article to be an honest discussion about DUI cases in the Metro-Detroit, meaning Tri-County (Macomb, Oakland and Wayne) area. My intention here is to be straightforward and informative, and help someone facing a DUI learn something. Accordingly, I'm going to try and avoid all the meaningless marketing lawyer talk about being "tough" and "aggressive" and all that.

In the real world, when you're put in the back of the police car, you are probably still wondering if there is some miracle chance that you can avoid a formal DUI. For most people, it's being led into the police station that really drives home the idea that this whole nightmare is "official," and not likely to end with just a warning. Between the breath test at the police station and the booking process, most people start wondering about outcomes. You worry about your job, your driver's license, and, of course your family. At this point, it is not uncommon to have a kind of see-saw mental process going on that fluctuates between "I'm screwed," and "I will hire the best lawyer in the state and get out of this." Minutes pass like hours as the mental see-saw goes from side to side, until you are finally released, often after posting some kind of bond.

Being released turns out to be kind of a cleanup job in its own right. You've got to get the car. In some cases, if you've been arraigned before release, you may have to go sign up for alcohol testing. When you finally get home, get showered, and settle down enough to really think about things, you start to wonder about the whole system. From the moment of the traffic stop to the moment you get home, it seems like everyone has made you feel guilty. Even if a person knows he or she was over the limit, it is frustrating to be treated like you've already been found guilty. It can feel like the whole "presumption of innocence" thing has been turned on its head.

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March 14, 2014

Michigan DUI Lawyers - Honest, or just Slick? - Part 2

In part 1 of this article I took up the subject of how a whole new crop of "internet DUI lawyers" is putting up a growing number of over-the-top websites targeting Michigan DUI cases. I lamented that amongst all the flash and video and slick production, the realities of a DUI charge in the Detroit area, meaning Macomb, Oakland and Wayne Counties, is becoming obscured. I set out to peel back all the hype and return to an honest examination of what happens in the real world. As we saw, the truth, overlooked by all the slick marketers, is that of the 52,770 DUI and alcohol-related arrests that, by official records, took place in the State of Michigan in 2012, only 41 cases went to trial and won by a verdict of "not guilty."

It is against this backdrop that I stand as an honest Michigan DUI lawyer. I produce the best results legally possible in the cases I handle. I don't, however, get caught up in the tide of using hyped up phrases and adjectives to market myself as the most "aggressive" or "tough" lawyer out there, like that matters, anyway. The plain truth is that results matter, and the best results are achieved through a combination of education, experience, hard work and skill. I know that people of solid intelligence will take the time to read beyond all those sales pitches and do their homework. Even so, it bothers me that some individuals get sold by the packaging, instead of the product inside.

Signer 1.2.jpgSince the dawn of time, people have always paid big money to hear what they want to hear, and buy into hopes and dreams. How many rich Amway (or other successful multilevel marketing) people do you know? How many people, even celebrities, have had facial surgery to try and look younger, only to wind up looking like a cat, with eyes rolling up the sides of their head while their skin looks way too tight. That looks better? I'll bet the surgeon didn't tell comedian Joan Rivers she'd look more like she was about to say, "meow" than she would wind up looking younger.

Being a real DUI lawyer has kind of gotten lost in all of this hype of DUI marketing. I don't want to be too judgmental here, but I can tell you that from my own, very experienced perspective, after more than 23 years of doing this - experience matters, and matters more than anything else. For example, in the last several years, I've enrolled in a post-graduate program of addiction studies at a local University. This has added significantly to my ability to help many of my DUI clients from being seen by the court as having a drinking problem they don't. For those who present with an issue, or an apparent issue, I can use my clinical understanding to help them beyond the scope of just minimizing the negative legal consequences of a DUI charge. Yet bringing over 2 decades of working in the DUI field to the classroom was invaluable to me. It wouldn't have been the same if I had undertaken this program of study 12 or 15 years ago. But I'll bet some webmaster could make it sound very different.

That's a really long-winded and nice way of saying experience matters, and a lot of experience matters a lot. All the video and graphics and glitz of an interactive website cannot substitute one bit for the knowledge your lawyer either does, or does not have. Mine comes from almost a quarter century working in the courtrooms of the Detroit area. Remember, self-descriptions of skill and ability anything more than that; self-descriptions. I can tell you all day long how tough, aggressive, or experienced I am, but have you ever spent a week with me? Do you really have any clue which lawyer truly has the most experience, or who is hard-headed and keeps engaging in self-defeating behaviors with Judges and prosecutors?

A physician friend of mine once told me that when your doctor gives you a referral to a surgeon, he or she doesn't really have any idea how good that surgeon is (or is not). Your doctor has never been next to that surgeon during an operation, and doesn't know if that surgeon is so good that he or she can do a 3 hour job in 2 hours, or otherwise needs 3 hours to do what everyone else gets done in 2 hours. The only thing your doctor knows is that the surgeon is someone who "does" the kind of surgery you need. In the same way, I know who "does" divorce, but really, I have no basis to evaluate if anyone I know is really good, or just okay. Or sucks, even, unless I was to get complaints about him or her. I'm never in court with divorce lawyers. Is there any reason to think it's different with a DUI lawyer? And more important, how do you find out who's right for you?

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March 10, 2014

Michigan DUI Lawyers - Honest, or just Slick? - Part 1

For a long time, I have updated my website and blog by examining topics of my own choosing. Every single working day, I handle some aspect of Michigan DUI cases, and my writings are drawn primarily from that professional experience as a DUI lawyer. I try to focus on subjects that actually matter in the real world, and not those that just sound good, or are good for drumming up business. Sometimes, however, it feels like I'm all by myself. I guess that if I have to stand as a committee of one, I can at least brag that my integrity is not for sale.

If you search "DUI" in just about any context, you will find an endless supply of hungry-for-business lawyers, each trying to outdo the other in order to get your dollar. Everyone describes him or herself as an always-successful winner, more aggressive and tougher than any other attorney. Website developers are having a field day with all this, as every new site that comes out has more video, more flash and just "more" style than the next. Getting lost in all of this, however, is the unvarnished truth about the reality of DUI cases. This article will be my attempt to peel back all the "special effects" of internet DUI lawyer marketing and push for a return to an examination of how things really happen out there in the Detroit area.

Sign 1.2.jpgThere are 2 main themes that internet DUI lawyers use to market themselves: Fear and success. It doesn't take much time to figure out that one of the two mainstays of bringing in clients center on repeating all of the possible bad things that can happen to someone facing a DUI. In other words, the message translates to "You're screwed, but I can save you." Without a reasonable voice to say anything to the contrary, the only questions left are "how screwed am I?" and "Who can save me more?" The other tactic is to focus on how a potential defect or defects in the evidence can lead to your "beating" the case if only you hire the lawyer who can find it.

Think about this for a moment. Everyday, the TV is filled with ads from furniture stores. They always have a reason for having a sale. Have you ever NOT seen a Gardner White or Art Van ad, even for a day? Every single ad tells you that it's your lucky day because the company "overbought," and has too much stuff to store; their warehouse is overstocked. Somehow, you're asked to believe that these mega-companies who have managed multimillion dollar profits for decades still haven't figured out how to manage their own inventory, so they're forced to practically give stuff away, all for your benefit. Whatever the back story (President's day, July 4th, Labor day, etc.), the sales pitch is that you are going to get a really super-special, once-in-a-lifetime, great deal if you hurry on in. As it turns out, the internet DUI legal crowd is trying a variation of the same tactic.

Now, try this on for size: That $900 couch "regularly" priced at $2000 is, in truth, just a $900 couch. You couldn't find it anywhere for $2000 if you tried. The reality is that for $900, you're going to get $900 worth of furniture; nobody is just going to give away something that could honestly fetch $2000 for a quick, measly $900, especially when the person who shows up to "buy" it often doesn't even have any money, and needs to be financed (meaning needs to borrow money) just to afford it. Things can be made to sound fantastic, but at the end of the day, the reality is that the couch priced at $900 is worth $900, and a DUI based on solid evidence doesn't get miraculously thrown out of court.

In plenty of other website sections and blog articles, I've made it very clear that with one, single exception (just 1 of the 3 Judges in the 48th district court in Bloomfield Hills), a person charged with a 1st offense DUI in the Metro-Detroit area is NOT going to jail - period. Let me repeat this: If you are facing a 1st offense drinking and driving charge in any district court of Macomb, Oakland or Wayne County, with the single exception outlined above, you are not facing any jail time. All that stuff about a lawyer keeping you out of jail? It's BS, in the just same way that if you hurry in, you can get a $2000 couch for $900.

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March 7, 2014

Michigan DUI - How much does you Lawyer know About You? - Part 2

In part 1 of this article, we began our discussion about how well your DUI lawyer should get to know you. We talked about the concerns the consequences a DUI charge can have to your ability to move forward, and how that fits into your overall life circumstances. Specifically, we addressed things like the suspension or restriction of your driver's license, the impact of a DUI on your record, and its effects on your ability to earn a living. We clarified that you are NOT going to jail in a 1st offense DUI anywhere in Macomb or Wayne County, and, with only one exception, nowhere in Oakland County, either. We further noted that jail can often be avoided even in a 2nd offense charge, especially if you've taken the right steps early on. Finally, we examined a case that I recently handled and saw how my familiarity with my client's work (health care professional on call 24 hours) and life situation allowed me to negotiate effectively with the prosecutor and reduce a "High BAC" charge down to an "Impaired Driving" offense, completely avoiding any mandatory driver's license suspension.

We learned, I hope, that while it's important to know your lawyer, meaning who you hire to represent your interests in a DUI case, it's every bit as important to make sure the person you consider paying is equally, if not more interested in getting to know you. For all the clinical, legal and technical "stuff" that comes with a DUI, unless the police really screw things up, or the evidence against you is so faulty that the Judge throws it out of court, making things better for you has a lot to do with making a good case for you. I need to be able to explain, clearly and persuasively, how and why my client is deserving of a special break. Whatever else, if you don't start working for a "special" break, you're never going to get one.

WHOareYOU1.2.jpgHere, in part 2 of this article, we'll start with the proposition that a DUI charge always bad news. Obviously, a DUI is inconvenient for anyone facing it. No one has so much extra money lying around that this charge isn't going to hurt. Even if you make hundreds of thousands of dollars a year, chances are, you could do something a lot better with your money than blow it on a DUI case. There is no one who is or will be better off for having some kind of drinking and driving charge go on his or her driving record.

Yet there are some people who have special concerns or life circumstances that must be taken into account when representing them on a drunk driving charge. While special circumstances don't necessarily beget special treatment, unless your lawyer can clearly differentiate you as being special in some way, "better" treatment is not even a possibility. In other words, if you're just part of the "herd" of drunk driving cases in court on any given day, or just another member of the "stable" of DUI clients in your lawyer's file cabinet, you can't even hope to be treated as an individual, and your concerns will get trampled underfoot. Without "special" handling, you will be overlooked with the kind of condescending nod that says, "Sure, you are special and unique - just like everyone else."

Not surprisingly, I attract an eclectic mix of DUI clients. My clients are certainly more "cerebral." Whatever else, I don't have to endure one-sided conversations across my conference table with people who don't think too much, and speak even less. My clients are usually people with a lot of questions, and who (rightfully) expect patient and well-informed answers. Many are nervous. As a side note, almost every week I wind up pointing out to someone that one of the more consistent and interesting ironies I see as Macomb, Oakland and Wayne County DUI lawyer is that those people who worry the most usually have the least to worry about.

Having handled Michigan drunk driving charges for over 23 years, it is easy for me to not be worried. Have you ever noticed that when you go the dentist, and he or she has about 200 tools in your mouth, including a drill and suction, and you seem to be holding on to the chair for dear life, feeling bits of tooth and the metallic tang of blood splatter everywhere, your dentist is as calm as a cucumber, humming away, or asking you about any movies you've recently seen? Beyond trying to distract you and calm you, your dentist knows things are going to be okay. Chances are your dentist has fixed a tooth problem like yours countless times. Lawyers, as a group, not only fail to calm client's fears (especially those that are unfounded), but sometimes exploit those fears to trump up business, and I hate that...

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March 3, 2014

Michigan DUI - How much does you Lawyer know About You? - Part 1

Several times each week, I am in court with a client facing a Michigan DUI charge. By the time I walk into the courthouse for our first court date, I usually know my client rather well. Here, on my blog, and on my website, I do my best to let you know who I am, and what I'm all about. The problem is, that's only half of the equation. Who you are, and what you're all about, is every bit as, if not a more important consideration to getting the best outcome in your case. After more than 23 years of successfully representing people facing DUI charges I know that getting better results in a Macomb, Oakland or Wayne County DUI case directly correlates to how well your lawyer knows you, and can address the special concerns a drunk driving charge brings to your life situation.

DUI lawyers do a good job of talking about themselves. Take a look around the various websites, and it seems that almost every lawyer claims that he or she is better than the next. For all the space lawyers dedicate to talking about themselves, few, if any, bother to talk about you. That's not good. There are several very relevant facets of "who you are" that directly impact your DUI case, and really dictate how it should be handled. This article will be a 2-part examination of why who you are, and how your special circumstances and concerns matter to the outcome of a Detroit-area drinking and driving case.

Uimages 1.2.jpgSome time ago, I included a section on my website and an article on this blog about the emotional and personal considerations of facing a DUI charge. Those installments received a lot of positive feedback. Looking back, I think those pieces were amongst first things out there to really address the basic fact that some clients are frantic, anxious and/or worried. Some need reassurance, and some have lots of questions and need answers. Some need both. Pairing this kind of person with a "strong, silent type" of lawyer will only result in frustrated client.

To be sure, some lawyers (not me, obviously) just want to focus on handling the case, and don't find much of a role for explaining things or soothing fears. That is not, in and of itself, a bad thing, it just doesn't work particularly well for someone who is worried and/or has questions. A lawyer's approachability in this regard is kind of the lawyer equivalent of a doctor's "bedside manner." It is sometimes described as a "desk side manner." Today, in the information age, DUI clients want a lawyer with whom they can really communicate. The days of the cold, impatient, "know it all" expert who is short on explanation (and time) are a thing of the past.

The point I'm getting at is that it is important for your DUI lawyer to help sort through the stress you feel and the things you about. It really goes without saying that you hire a lawyer to make things better. My job, in any drinking and driving case, is to avoid or minimize as many negative consequences as possible. It would be great if a lawyer could just wave a magic wand and make everything go away, but that's not how things happen in the real world. Most DUI cases are not based upon faulty evidence, and most don't just get tossed out of court. This means that it becomes important to speak honestly and patiently with the client, and make sure that his or her concerns are completely and properly addressed. It also means that, as the lawyer, I have to get to know my client so that I can evaluate perceived and realistic impact of a DUI in his or her life.

Helping reduce a person's anxiety and stress to overcome irrational fears of consequences that won't likely happen is important, and beneficial, but it's also crucial for me to have a firm understanding of my client's life situation so that I can help avoid those consequences that would be most problematic for him or her. For example, not being able to drive at all for 30 days might not be the end of the world for one person, but could mean the loss of a job to another. And then, there's the question of jail...

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February 7, 2014

The Straight Truth About a 1st Offense DUI the Detroit-area (Macomb, Oakland and Wayne Counties)

The straight truth about 1st offense Michigan DUI cases is not what you might first expect. As a Michigan DUI lawyer, I pride myself on doing the very best work an producing the very best outcomes possible for my clients. If there is a way to "knock out" a DUI charge, I'll find it. Critically important to how I define myself is the whole concept of being honest. Unfortunately, the notion of honesty gets stretched, to say the least, when it comes to lawyers marketing themselves for DUI cases. This article will be a reality check of all the bad things that won't happen in your DUI case. Although this article is written with a 1st offense DUI charge in mind, most of what is covered applies, at least in part, to 2nd and subsequent DUI charges, as well.

If you're reading this, then you're probably looking for a DUI lawyer, and are likely gathering information and checking around the internet. In looking around, you can almost feel bombarded by the competing claims of "tough," "aggressive" and "experienced" lawyers. If DUI attorney says he's #1 is good, then DUI lawyer #2 claims that she's better. If you keep looking, you'll soon discover that DUI lawyer #3 claims to be the very best, and that DUI lawyer #4 charges more than the cost of good used car. Look harder still, and you'll find the world's cheapest lawyer, or even one that will come over to your house on Saturdays just to sign you up.

Good News 1.2.jpgSuccesses and testimonials and case summaries are carefully constructed to make it look like the lawyer spends every day in court, fighting DUI cases at trial, and winning. Here's where the numbers tell a very different story, however. In 2012, there were 52,037 alcohol-related (meaning DUI and MIP) arrests in Michigan. Yet for all of the marketing hype you'll find, conspicuously missing is that out of those 52,037 arrests, only 40 cases went to trial and resulted in a "not guilty" verdict. No matter how you slice it amongst all the lawyers clamoring for a piece of your DUI business, and out of all the DUI charges brought to court in the year 2012, there were only 40 people who went all the way to trial and won.

The immediate meaning of this should be clear: The statistical chance that any given person charged with a DUI can go to trial and be found "not guilty" is incredibly low. This isn't hopeful news, nor is bringing it up good for business, if you're a DUI lawyer. If you're arrested for a DUI, you want to hear that some sharp lawyer can take your case to trial and win. But that's not the reality, and I can't abide the idea that either me, or my client is laboring under a false illusion. If we're going to make things better, it's not likely to happen by putting all your efforts into long shot odds of just 1 out of 1300. Instead, you have to be smart, as in realistic about things.

Yet that's hardly a reason to give up hope in beating a DUI, because "beating" a DUI charge is actually statistically viable. Beating it a trial is unlikely, but there is always a statistically significant number of cases that get thrown out of court because of problems with the evidence. Whatever else, DUI cases don't dismiss themselves; it takes experience, intelligence and skill to pursue and produce these results. Obviously, the best thing that can happen to your DUI case is that it gets thrown out of court. Yet banking on that outcome is a lot like playing the lottery for your retirement plan.

Here's the "other" secret about DUI cases, at least in the cities, townships and villages of Macomb, Oakland and Wayne Counties, where I concentrate my DUI practice: Things won't turn out as bad as you probably fear. In 1st offense cases, and really only with 1 exception (cases assigned to Judge Kimberly Small in the 48th district court in Bloomfield Hills), jail isn't even on the menu. Let me say this again, to make it clear; you're almost certainly NOT going to jail in the first place. Any lawyer that hawks his or her services as being the difference between you going to jail in a 1st offense DUI case, or not, at least in the Detroit area, is either completely clueless, or downright deceptive. Either way, you should run away from that kind of operation as fast as you can. Now, let's turn to what really matters...

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February 3, 2014

DUI in Macomb County - First Offense, or any Offense, Things are Better here

After more than 23 years as a Macomb County DUI lawyer, I am convinced beyond any doubt that if you have to face a 1st offense DUI charge, or any DUI charge, for that matter, you're a lot better off if it's in somewhere in Macomb County rather than anyplace else. In contrast to most of my other DUI articles, this one will be shorter. The DUI section of my website most of the articles this blog contains tons of in-depth information of just about every aspect of and step in a Michigan DUI case. Here, I just want to make a point that's a ray of sunshine, at least if the cloud over your head is a Michigan drunk driving (technically called "OWI," or operating while intoxicated) charge.

Here, we will focus on one simple point: Macomb County is the most consistently decent and forgiving of three Metro-Detroit Counties in terms of being more "lenient" on people dealing with a first time drinking and driving charge. This is not to say that these courts are, in some way, more tolerant of drunk driving, nor are they in any way less aware of the potential dangers posed by driving while over the limit. Yet the truth is that the vast majority of us have, at some point in our lives, driven home when we probably shouldn't have, and to act otherwise is hypocritical.

Macomb seal 1.2.pngEveryone knows that for the longest time, there has been an increase in public attention on drunk driving. Laws are getting tougher, not easier, and it only makes sense that, as a society, we want less, rather than more people getting behind the wheel while intoxicated. It is decidedly easy for any Judge to jump on the bandwagon and get "tough" on DUI cases. Beyond being simple, there is absolutely zero political risk in taking a hard stance against drinking and driving. No Judge risks losing a reelection bid for being perceived as having tried to hard to protect his or her electorate from drunk drivers. Doing the right thing, as opposed to the easy, or politically expedient thing, however, requires both consideration and courage. This is where I give high marks to the Judges in Macomb County.

In Oakland County, a 1st offense DUI driver can expect to be "put through the ringer" much more severely than he or she would be in Macomb County. And while most of the courts in Wayne County, like almost all of those in Macomb, share the belief that a person can make a mistake and learn from it, there are a few others that tend to be more like their counterparts in Oakland County, rather than Macomb. In other words, the courts in Wayne County are not as consistently understanding (if you're the one facing the DUI, this really means lenient) as those of Macomb; it depends on the city in which the case is brought.

How this really works out, and where it matters to anyone facing a DUI is what actually happens to you. And let's be clear about any concerns over going to jail; unless your case winds up in the 48th district court in Bloomfield Hills, there is virtually zero chance that will happen. If you really do your homework, then you'll find out that one Judge in the whole Tri-County area, Kimberly Small, has a policy that sends every DUI driver, including first offenders, to Jail. If she's not your Judge, and/or your case is pending in any other court, you can breath a lot easier.

I wanted to get this out of the way because I think it's BS for a lawyer to make it sound like his or her efforts will be the difference between you going to jail or not in a 1st offense DUI case. Instead, the intelligent and well-informed efforts of the DUI lawyer are best directed at avoiding all the other consequences that can be imposed as a sentence in a DUI case. These include what can feel like endless classes, counseling, ignition interlock, rehab, all done on your time, and all of which you will pay for out of pocket. So why is it "better" if your case is in a Macomb County court?

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January 31, 2014

MIchigan DUI and the Importance of your BAC Results

In my capacity as a Michigan DUI lawyer with more than 144 DUI-related articles (to date) on this blog, I have analyzed and examined every aspect of a Detroit-area drinking and driving charge in detail. It has been a while since I've written about the subject of BAC results, even though they play a central and fundamental role in every operating while intoxicated (OWI, the actual term under Michigan law for a "DUI") case, and I think it's time to circle back to this important subject. This article will focus on the importance of your BAC score, whether it's from a breath or blood test. To be clear, this will NOT be an article about "high BAC" DUI cases, although we will, of course, talk about them as part of our larger discussion.

Your BAC result, and particularly the defining role it plays in your DUI case, is largely a matter of perception. Some of this is inevitable and unavoidable, while some of it can be managed. There are three aspects of this, in particular, that we'll examine as we survey the larger landscape of the significance of your BAC results in a DUI case.

blows 1.2.jpgLet's begin with a simple, if unpleasant, conclusion: Your BAC score says a lot about you. Ever since breathalyzer tests have been given, we have judged how drunk a person was at the time of his or her arrest by looking at his or her breath test results. It is human nature for anyone to feel a little bit defensive about his or her own score, so rather than thinking about your own, think, for a moment, about a news story involving the DUI arrest of some celebrity you don't like. When the news announces his or her BAC results, we tend to take notice, or even sneer, especially when the results are 2 (or more) times higher than the legal limit.

While it's true that different people have different tolerances, in the realm of DUI cases, having any kind of tolerance to alcohol is not a good thing. You don't need to be a rocket scientist to figure out that telling the Judge that you didn't feel buzzed or drunk, even though your BAC score was over the legal limit, isn't a good idea. That's tantamount to saying that you're an experienced drinker and have gotten so used to drinking enough to be over the legal limit that you're not impaired by it. Being able to hold your booze is not an asset here, and saying that "I wasn't that bad" is not a winning strategy.

The main point to this article, and this discussion, is this; your BAC score is used as a label and essentially defines you in your DUI case. Just about everyone knows that the State of Michigan passed a high BAC law a few years ago. Less known is that, now, a lot of local municipalities have taken legislative action and passed their own high BAC ordinances, not surprisingly, to get in on a piece of the money action.

The issue with "high BAC" is one of perception, because when the entire world labels your BAC result as "high," then you will inevitably suffer under the weight of that label. Think about it this way: Although the law now defines a "high" BAC as .17 or above, if you administer a breath test to a 34-year old, 6 foot 7 inch NFL linebacker weighing 320 pounds and he blows .17, and then administer the same test to a 20-year old, 5 foot 4 inch female college student weighing 120 pounds, and get a reading of .16, do you really perceive these two people as being about equally intoxicated? Whatever else, your perception is probably not affected much only because of the .01 difference between the two results. Now, let's look at the perceptions that will affect your case...

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January 24, 2014

Why a Michigan 3rd Offense (Felony) DUI is not the end of the World

In Michigan, a third (3rd) offense drunk driving is a felony offense. There is no higher Michigan DUI charge. This means that whether you have 2 prior DUI convictions, or 7 DUI convictions, any DUI charge after your 2nd will be called a "third" (3rd). It goes without saying that a 3rd offense is a big deal; I deal with these issues almost every day, and I see how profoundly upset it makes the person charged with it. However, unless someone has been hurt, or killed, and despite the very real implications of a felony DUI charge, consequences can be managed, and you need to know that facing a 3rd offense is not end of the world. With the right lawyer, things can be made much better than you can probably imagine.

If you've taken the time to read any of the other DUI articles on my blog or the various DUI section of my website, you know that I am typically more refined than this, but here, we need to talk money, first. If you're facing a 3rd offense DUI charge in Macomb, Oakland or Wayne County, this is not the time to be looking for the budget DUI lawyer. That's not say that you should be forking over legal fees of $10,000 or more, unless you're paying for a trial, either. But going to trial is seldom a winning bet, anyway.

close-glass-whiskey-and-ice 1.2.jpgAccording to the Michigan State Police Annual Drunk Driving Audit for 2102, there were 52,037 DUI/alcohol related arrests in Michigan, and only 40 of those cases went to trial and won a "not guilty" verdict. That translates to a .076 % (as in point zero seven six percent) acquittal rate. This is hugely important before you hand over enough money to make a down payment on a home to some lawyer for the slim chance to wind up being part of that super-small (.076%) and super-lucky group of 40 people.

Those numbers only tell part of the story, however. The first order of business in every 3rd offense DUI is to examine the evidence very closely, because a rather sizable number of DUI case can and do get tossed of out court. This doesn't happen by itself; rather, it is almost always the product of good work by an experienced and sharp DUI lawyer. I get DUI cases "knocked out" all the time, but it is always done through a combination of effort, intelligence and skill.

Still, pursuing a challenge to the evidence should not cost a king's ransom. The point to be taken here is that while there are no "bargains" when you're looking for quality DUI representation, that doesn't mean you should get taken for a ride, either. Normally, your best options lie in the middle of the price range. Beyond just telling the reader to "call me," the best advice I can give here is for you to do your homework. Look around at different lawyers. I believe it's always best to stay local, and that's why I ONLY handle Detroit-area DUI cases, meaning drinking and driving cases brought in Wayne, Oakland or Macomb Counties.

As you do your research, you should read and compare the articles and other information written by the lawyers you're considering. Honestly, you have to read more than a little to get a sense of the lawyer's "voice." If you read enough of what he or she has put up, you can get a sense of how conversational or friendly a lawyer is, and whether or not he or she is a good "explainer." Of course, if there's not much to read, then you might want to take that as a clue, as well...

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December 27, 2013

Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 2

In part 1 of this article, we began looking at the "big picture" in a Michigan DUI case, trying to separate all the scare tactics that too often obscures the much more palatable reality in a 1st offense case that you're almost certainly not facing any jail time. We learned that a Detroit-area DUI case is not the end of the world, and that by hiring a local Michigan DUI lawyer (meaning one who practices exclusively in Macomb, Oakland and Wayne Counties) like me, even many of the potential "real world" negative consequences can be avoided. We saw that those that cannot be avoided outright are manageable, at worst. Beyond that, we looked at the first 4 of what I have called the "5 most important" aspects of a DUI case. Those included the cost (and yes, aggravation) of having to hire a DUI lawyer, observing that, on the one hand, there is little benefit to be had from the cut rate services of the low bidder kind of lawyer, while on the other hand, there is certainly little or nothing worthwhile to be had from spending too much for a lawyer, either. This is especially true in a 1st offense OWI case.

We noted that the DUI itself is going to be expensive, that barring a dismissal of the case, there will be at least some restriction of your Michigan driver's license, and that the whole process is (by legislative design) inconvenient. Here, in this 2nd part, we'll pick up where we left off and look at the mandatory alcohol screening test, the required interview with the probation officer, the probation officer's duty to write and forward a written report to the Judge recommending what your sentence should be, and how that all interacts to determine what matters most in any DUI case - what actually happens to you.

Rainbows 1.2.jpgAbove and beyond the 4 things we've discussed in part 1, the 5th, and most what I think is by far the most important aspect of a Michigan DUI case (unlike a misplaced concern about going to jail, which we noted almost certainly is not going to happen anyway), is that you ARE at risk to get shuffled into some kind of "alcohol classes" or counseling, even in a 1st offense situation. This is my home territory, and where I can help you in a way unsurpassed by anyone else.

In my own travels around the internet, I noticed that some DUI lawyers, for example, highlight their training with the datamaster breathalzyer instrument used at the police station. This "training" typically consists of a 6-hour, one-time class put on by the Michigan State Police. The sad reality here is that, unless your case can be won at trial because of a faulty or mistaken breath test, or it can otherwise be dismissed for that reason, a lawyer's knowledge about this machine, even if he or she can take it apart and rebuild it blindfolded, is essentially worthless to you. A DUI lawyer might as well advertise that he or she has a black belt in karate, because that will provide about the same degree of help in your DUI case.

By contrast, being able to speak with authority about what does, and, more importantly, in the context of facing a DUI, what does NOT constitute an alcohol problem, can make all the difference in the world to what actually happens in your case. It is highly unusual for a lawyer to have this kind of knowledge and training, but I do, and that can bring an unparalleled advantage to your defense.

This is key. This really is the "meat and potatoes" of any and every DUI case that isn't "knocked out" for some technical reason. The chance that you will actually go to trial and have a Judge or jury find you "not guilty" of any and all charges is statistically remote. If you want to plan intelligently, then hoping for a miracle isn't the way to go.

Unless your case is simply thrown out of court, there is a 100 percent chance that you are going to be screened for a potential drinking problem, because it is required, by law. The court must order that your history with alcohol be closely examined, and it will order you to refrain from drinking. It is also quite likely that you will be subjected to some kind of alcohol testing to make sure that you don't drink while this "no drinking" order is in place. In a DUI case, the entire focus of the court quickly shifts from your arrest to your relationship to alcohol. This is where and why the real risk in a DUI case is getting wrapped up in all kinds of alcohol classes and counseling and even AA. This is the part of the case where I can make things better, and help you avoid the expense and inconvenience of unnecessary education or treatment. Here, I bring highly specialized and entirely unrivaled educational background to the table that can directly help you and clearly separates me from the rest of the pack of "Michigan DUI lawyers."

Continue reading "Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 2" »

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December 23, 2013

Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 1

Some of my blog articles and website sections are really just detailed examinations of a particular aspect or two of a Michigan DUI case. Sometimes I'll focus on the evidence, or the traffic stop, or a bond condition like having to test for alcohol (and sometimes drugs) while the case is pending. In other articles, I will examine the mandatory alcohol-screening test that's part of the court process in every drinking and driving case before the sentencing, or even the sentencing itself. It's been a while, however, since I've taken a step back and done a more general overview and looked at the big picture of what's really important and "what happens" in a typical DUI case.

This article will attempt to do that. In particular, and because I limit my DUI practice to local cases pending in Macomb, Oakland and Wayne Counties, we'll examine the 5 most important things about a Michigan DUI based upon my real world experience in these Detroit area courts. To do this properly, we'll divide this article into 2 installments. The first, (and shorter) installment will cover 4 of those 5 topics, and the second and longer installment will focus on the 5th, and what I consider most important topic.

Rainbow 1.2.jpgAbout the most important "big picture" thing to first point out is that a DUI charge does not mean going to jail, nor does it represent the end of the world. When I looked around on the internet and at many of the legal sites of lawyers that handle DUI cases, a few things struck me, but none so much as the "doom and gloom" that seems to surround this whole subject. It seems that it has become a marketing tactic for some lawyers to try and scare the reader nearly to death, and then offer their services as the best way to save the person from all the terrible things that can happen.

This kind of "scare tactic" approach must work to at least some extent (why else do so many lawyers do it?), but the honest truth is that, almost without exception, you're not really at risk to go to jail in a 1st offense DUI case in the first place. If the only thing you're worried about is getting locked up, then the $1500 cut-rate lawyer will do the same thing as the $10,000, over-priced lawyer. This is so important that it should be repeated: Almost without exception, you are not really at risk to go to jail in a 1st offense Michigan DUI (OWI) charge. This is the reality no matter what lawyer you hire. While I am in business to make money, I have no heart to lie and pretend that even with my special skill set, it will be the difference between your going to jail or not. Especially in a 1st offense Detroit area DUI, the truth is that you are almost certainly not going to jail.

The surprising truth is that even in a 2nd offense Michigan DUI, jail can very often be avoided, if things are handled properly. The point I'm driving at is that there is little to be learned, and little value to be had, from any lawyer that talks about or focuses too much on potential negative consequences. In the realm of DUI cases, there are many scary sounding and theoretically potential legal consequences, but in the real world, most of them never come to pass, and certainly not all of them together. It is a given that a person facing a DUI - whether a 1st, 2nd or even 3rd offense - is frightened. It seems to me that if you're in a position to help that person realize that some of his or her apprehension is misplaced, you ought to do that, and help calm them down, rather than working them all up and making things even worse.

High BAC charges are a recent introduction into Michigan law. While a high BAC charge sounds scary, the actual "enhanced" penalties fall far short of catastrophic. About the biggest actual risk in a high BAC charge is that your license will be suspended for 45 days. Again, in terms of "real world" outcomes, I've never had a high BAC client go to jail, and have been able to reduce the high BAC charge to something less severe in the vast majority of cases I've handled. In other words, if you've been charged with high BAC (sometimes called "OWI enhanced"), and even if the evidence in your case is rock solid, it is quite likely that I will be able to negotiate the charge down to something that avoids the theoretical, potential license sanction, anyway. This is why I don't charge more money for a high BAC charge than a standard 1st offense DUI.

Continue reading "Michigan DUI /OWI and the Real World Things That will Happen in Your Case (it's not as bad as you Think) - Part 1" »

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November 11, 2013

Michigan DUI and Probation Violations in DUI cases Involving ADD, Anxiety, Depression or Mood Disorders - Part 2

In part 1 of this article, we defined what is unfortunately an often overlooked but all too common problem in Michigan DUI cases - the existence of an underlying mental health situation involving things like ADD, anxiety, depression, or a mood disorder. This inquiry focuses on both those situations where a person is facing a DUI charge, and those situations where a person violates probation for a previous DUI case, by testing positive for alcohol or another substance.

We noted that this topic applies equally to individuals who do have, and those who do not have, any kind of alcohol or substance abuse problem. Our discussion led us to the stark realization that more understanding and appropriate treatment is given to a murderer (think of the convicted killer of John Lennon, and the guy who shot President Ronald Reagan) or serial killer than a DUI driver suffering from anxiety or depression.

Depressed woman 1.2.jpgNow, we'll shift our perspective a bit to that of the clinician. As a Michigan DUI lawyer involved in ongoing education at the graduate level in addiction issues, and with an undergraduate degree in psychology, this whole topic hits a nerve with me. I feel compelled to do more than just play the role of "DUI lawyer" in this type of situation, and because of my background, I am uniquely able to understand the larger dynamic at play when a DUI client presents with an underlying mental health issue. What's most alarming is that huge numbers of people in our modern society have to deal with things like ADD, anxiety or depression, but this seems to be overlooked by the court and probation people assigned to "handle" DUI cases. The point I'm making is that the presence of these conditions is not a small-scale phenomenon. You'd be hard pressed to find a family without some history of one of these conditions.

About the best thing a court can do to someone who has any kind of mental health issue, regardless of whether or not the person has a co occurring alcohol (or drug) problem, is to make sure the "right" therapist treats him or her. By "right," I mean someone who understands co morbid substance use and abuse issues. Sometimes, this isn't an issue because a person may have his or her own therapist. If someone does not, then it can take some work to find the "right" person, and even then, the therapeutic relationship begins somewhat precariously, with the knowledge on both sides that, because of the court's undeniable presence and role, it's a bit like an arranged marriage.

From the clinician's side of things, it is frustrating to have to send reports to the court about a client's progress, and to know that what is absolutely, everyday normal in the therapeutic world, namely, that a client will "slip" and have a drink, or use, is cause for punishment for a court-referred person and that such a person can actually be sent to jail. In other words, a person who is not on probation will work through his or her problems with the therapist and report an episode of drinking, or using, without fear of being punished. Progress, in the clinical sense, and in the real world, typically involves two steps forward, one step back, three steps forward, one step back. Very often, that step back can be a drink, or an episode of using. It happens; this is expected and understood as a normal part of getting better. Every therapist is intimately familiar with this, but that knowledge doesn't seem to make it through the courthouse doors...

Continue reading "Michigan DUI and Probation Violations in DUI cases Involving ADD, Anxiety, Depression or Mood Disorders - Part 2" »

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November 8, 2013

Michigan DUI and Probation Violations in DUI cases Involving ADD, Anxiety, Depression or Mood Disorders - Part 1

In more than 23 years as a Michigan DUI lawyer handling drinking and driving cases in the Metro Detroit area, I have seen certain patterns of behavior that are completely missed, or at least misinterpreted, by the court system. This has led me right back to the University campus where I formally study of addiction issues at the post-graduate level. I think it applies to everyone that, as you learn things, it changes the way you view the world. In the world of DUI cases, that means a whole lot of people seem to get steamrolled, or sold out, by a system that doesn't have the ability to understand their respective situations. Specifically, I'm talking about people with ADD, an anxiety disorder, depression, or a mood disorder who have been charged with a DUI, or otherwise wind up on probation for a DUI and thereafter face a probation violation for drinking or using a prohibited substance. This article will apply equally to those who do, as well as those who do not have, an alcohol (or substance abuse) problem.

We hear references to the kind of behavior in everyday conversation: "He's 'self medicating,'" or "she's depressed." There are detailed examinations in textbooks and plenty of research studies about the co occurrence of an alcohol problem and an anxiety, depressive or mood disorder, but our examination here will, by necessity, be much more topical and summary, even though this article will be divided into 2 parts. Technically speaking, the pairing of an alcohol (or substance) use disorder with another mental health issue is called a "co morbid" disorder.

Depressed blue 1.2.jpgThis is very heady stuff, even for those with doctoral degrees in psychology and extensive substance abuse training. Before we get into how alcohol and something like ADD, anxiety, depression, or a mood disorder affects people in the real world, it is worth noting that, if the research and analysis of data about how to best deal with these situations isn't even completely clear to the people with 50-pound heads and advanced degrees conducting research on University campuses, you can be sure no one at the local courthouse has any better solution.

The big problem is that the people (meaning Judges and probation officers) at the local courthouse must handle these situations. They have no option of just throwing their hands in the air and admitting defeat. To make matters worse, because of the incredible complexity of these combined and intertwined issues, the people to whom such cases are assigned (probation officers) don't even have a clue that they don't really know what's going on. In other words, because they don't understand the depth of the situation, they have no idea that they are in way over their heads. This is not a knock against anyone; treating co morbid disorders is far from fully understood, or in any way settled. My point here is that this kind of situation will exceed the resources and understanding of any court system, even though the court system has no choice but to "handle" it.

Unfortunately, what winds up happening is that the system just criminalizes and punishes people for being anxious, or depressed, or having ADD, or having a mood disorder. In many cases where a person suffers from one of these conditions, whether diagnosed or not, he or she may find some relief on occasion by drinking. We call this, appropriately enough, self-medicating. It often happens without any conscious awareness on the drinker's part. For whatever reason, this sometimes comes to light when a person has a few too many and gets caught driving. Suddenly, then, it seems as though the system seems to stand ready to pounce on him or her, as if their drinking is only about being self-indulgent and partying too hard.

A person in this position may very well not even have an alcohol problem, but that doesn't stop the court system from treating him or her as if they do. Similarly, it's quite possible that the person doesn't realize he or she has any kind of anxiety disorder, or is really depressed, but the system will blow right over that and attempt to treat a drinking problem that may not even exist. There's a popular saying that applies here - "It's complicated." As we'll see, that's an understatement of grand magnitude...

Continue reading "Michigan DUI and Probation Violations in DUI cases Involving ADD, Anxiety, Depression or Mood Disorders - Part 1" »

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October 7, 2013

Michigan 2nd Offense DUI - Staying out of jail and Making Things Better

As a Michigan DUI lawyer, I handle a lot of 2nd offense cases. I think that a good part of the reason why is that many people who've already had a 1st offense DUI read some of my articles and recognize the accuracy of how I explain the court process. In addition, because the whole issue of alcohol, and particularly your relationship to it, is the focal point in a 2nd offense DUI case, my expertise in addiction and alcohol issues is of immeasurable value. The bottom line is that anyone facing a 2nd DUI charge knows that things are serious, and that it's important to get he best help you can.

While there is certainly a lot to a 2nd offense case, the hardest reality is that getting thrown in jail is a real possibility in this situation. That needs to be avoided at all costs, and it is unlikely that the level of expertise needed to produce the best results will come from the "low bidder." For me, it is the convergence of a rather unique skill set that enables me to provide the best opportunity to stay out of jail and minimize all of the other consequences that are on the menu when you're facing a 2nd offense. Someone who has been through the process before doesn't have to take what I say on faith.

gettingArrested 1.2.jpgIn the bigger picture, it would just be more profitable for me to say what people want to hear in terms of making a 2nd offense DUI all better. However ignoring or refusing to look at and address the main issue a 2nd offense presents is not a strategy. To be completely honest about it, when you've been charged with a 2nd offense DUI, you are invariably seen as either having a drinking problem, or being extremely likely to have one. To put it another way, just about every Judge, at least in the Detroit area, will think that it's highly unlikely that your drinking is not a problem. I cannot even fathom how a lawyer would not begin his or her representation, which is supposed to translate into "help" for the client, from this premise. To ignore this reality is not only disingenuous; it's dangerous. Some think that simply ignoring this whole topic is good for business, in the sense that talking openly about it, as I do, might "scare" a prospective client away.

Think about it for a moment; do you really thing that there is any Judge who will look over from the bench and see a person with a 2nd offense DUI and just figure it's bad luck? If we're going to make things better for you, the first thing we need to do is take an honest look at your situation, and facing a 2nd offense DUI is a unique and troubling situation. At a minimum, you have to admit that a 2nd DUI represents some kind of ongoing problem when it comes to choices made, particularly choices about drinking, and driving. And from the new Judge's point of view, whatever the other Judge in the first case did, it clearly wasn't enough to put a stop to the behavior.

Accordingly, it would be ludicrous to think that the Judge in your 2nd offense case will be thinking that perhaps the 1 year of probation you got in your 1st offense case was just too much. The new Judge is going to be wondering what he or she has to do to make the point and get the drinking and driving to stop. About the last thing the new Judge is going to buy is another "it won't happen again" promise. That pretty much amounts to nothing more than "been there, done that." Instead, the new Judge will be waiting to hear what else you have to say, and show. And you better have something. That's where I come in.

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September 23, 2013

The "Problem" with Michigan DUI Cases

Whether it's a DUI anywhere in Macomb, Oakland or Wayne County, there is an undeniable negative vibe that is part and parcel of any Detroit area drunk driving charge. If you've already been in front of a Judge or Magistrate, then you've likely had your first taste of this. Anyone having to "test" as a condition of his or her release fro jail, for example, already feels that the whole "innocent until proven guilty" thing has been turned on its head. Beyond feeling like you have to prove your innocence, it feels like there is a certain sense that you have an alcohol problem just because you've been cited for OWI.

You're not misinterpreting things. When you get caught up in the world of a DUI, you can darn well count on having to labor under the presumption that your drinking is, or is at least at risk to become, a problem. To be clear about it, the whole judicial system, for better or worse, has gotten caught up in the agenda of MADD. It used to be that MADD's mission was to prevent drunk driving, but even it's founder quit years ago because she felt that organization had lost its focus and become far too "anti-drinking," rather than focusing on the prevention of drinking and driving.

Thumbnail image for Thumbnail image for problems 1.2.jpgAs a Michigan DUI lawyer who is also involved in formal University education at the post-graduate level in alcohol and addiction issues, I am specially equipped to stand up and argue for you and keep you from getting swept away by the tide of "you must have a drinking problem" sentiment that seem to dominate the thinking of everyone in the court system simply because you're facing a DUI charge.

Still, there is a reason that Judges and probation officers have, almost unconsciously, shifted over to such staunch anti-drinking positions. In this article, we'll look at how and why the everyday experience of a Judge or probation officer shapes his or her beliefs about drinking and people facing a DUI charge. In particular, we'll see that as much experience with alcohol issues as any Judge or probation officer has, every last bit of that experience is negative. There is no case handled by any Judge or probation officer where a person's drinking has not been, at least on the occasion that gives rise to the charge, problematic. Remember, every Judge or probation officer works all day, every day, with people whose use of alcohol was problematic enough to bring them into the legal system.

By contrast, those same Judges and probation officers have never so much as spent an hour of their working life dealing with situations where a person's alcohol use was not problematic. Non-problematic use if alcohol won't get you arrested. It only makes sense that if your drinking hasn't caused a problem, then you don't wind up facing charges for it. The person who has a glass of wine with dinner and doesn't get arrested doesn't have to go to court. As a consequence, it's only to be expected that many Judges and probation officers eventually form negative attitudes about drinking.

That's not to say that they're abstainers, or teetotalers, either. The point I'm making is that the negative attitude they develop about drinking is essentially created by and focused upon those who have been charged with a DUI, which, in Michigan, is actually called OWI, or Operating While Intoxicated. And while this article is about overcoming being perceived as having a problem, we'd miss the proverbial elephant in the room if we didn't acknowledge that there is a very good reason these attitudes develop and are sustained in the first place. Statistically speaking, a much larger percentage of people arrested for a DUI have an underlying drinking problem than the population at large. In other words, if you had 2 empty rooms, and you filled the first with 100 people chosen at random, and then filled the second with 100 people currently facing a DUI charge, it shouldn't come as a surprise that, as a group, you'd find a much higher incidence of problematic drinking amongst the DUI group than the group chosen at random.

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September 20, 2013

Michigan DUI Breathalyzer and the Breath test (PBT) Before your Arrest

In my role as a Michigan DUI lawyer, I often hear people use the term "breathalyzer" with indiscriminate reference to whether it was the initial test taken on the portable unit at the time of arrest, or the much more sophisticated test taken on the big machine at the police station. In this article, I want to focus on the role of the test taken prior to arrest. This test is called a "PBT."

"PBT" stands for "preliminary breath test." I don't know how people speak of it outside the Metropolitan Detroit area, but in Macomb DUI cases, Oakland DUI cases and Detroit OWI cases, people often use the term "PBT" as an acronym for "portable breath test." While this is not technically correct, it does accurately reflect that the machine used for a "PBT" is small and portable. And while we're clarifying things, it should be noted that in Michigan, there is no charge of "DUI," meaning "driving under the influence." Michigan law only makes out the charge of "OWI" (check your ticket or court notice), meaning, "operating while intoxicated." As much as "DUI" has come to be synonymous with "drunk driving," the term "PBT" has likewise simply come to mean the breath test given by a police officer with the handheld portable unit. Rather than stand on ceremony here, we'll just use the term as everyone understands it.

Shadow PBT Cop 1.2.jpgA discussion like this can sound rather well organized and clinical, but at the time a PBT unit with a straw is being shoved into your face, you're probably not thinking about the device's technical name or evidentiary limitations. If anything, you're probably just praying in your head some version of, "please let me blow under the limit!" Whatever else, if you're reading this, that didn't happen. Nor would it be fair, really, to expect any kind of "divine" intervention that would thwart the proper functioning of such an instrument and let a person who is over the limit somehow test out as being under. The machine did its job, the night took a turn for the worse, and now you're dealing with a DUI.

Earlier, we noted that the acronym "PBT" stands for "preliminary breath test." Key here is the word "preliminary." These portable machines are, by and large, reasonably accurate, but not accurate enough to provide bodily alcohol content (BAC) scores sufficiently reliable to be used against you in court. This goes to one of the more common misconceptions about PBT scores. In those cases where someone remembers what he or she blew in the back of the police car, it is not unusual for him or her to think that the number is part of the DUI charge. It's not. A PBT score is only used as part of the determination that there is "probable cause" to arrest you and take you to the station, where you'll be asked to perform the real breath test on the big machine.

There is a lot of science involved in a breath test and the machine used at the police station. Some people are willing to spend the money to challenge those test results. Yet for all that effort and expense, of all the people arrested for a DUI each year, less than .25% (meaning less than one-quarter of one percent) of them are ever found "not guilty" after spending a boatload of money on a drunk driving trial. In 2011, for example, about .17% of all DUI arrests in the State of Michigan resulted in a "not guilty" verdict. Whatever else, technical arguments about the scientific unreliability of breath testing doesn't sell particularly well with juries. Here, however, we're not focused on the science of breath testing at the police station, but rather the role of the handheld preliminary breath test.

In that regard, the biggest value of the PBT given at the time of your arrest is to determine, at least preliminarily, if you are over the limit and should be taken to the police station for further testing. From the point of view of a Detroit DUI lawyer, like me, the results of your PBT test also provide a benchmark from which to interpret your BAC scores obtained from the from machine at the station. In other words, if your roadside PBT score was .14, and you blow .06 at the station, or, conversely, if you blew .06 on the road, and then .14 at the station, something is likely wrong, and serious investigation is needed. Most of the time, a person's PBT score will be at least relatively close to his or her BAC score from the police station. Any difference or similarity has to do with how much alcohol the person consume, exactly when, and how his or her body metabolizes it. Thus, if Dan the driver slams 2 quick shots before leaving the bar and gets pulled over just as he leaves, his roadside PBT score may not reflect those last 2 drinks. By the time he gets to the station, however, his BAC will likely have increased significantly.

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September 9, 2013

Should I get into Counseling or Treatment for a 1st Offense DUI in Michigan?

Anyone facing a 1st offense drunk driving charge has lots of questions. In fact, as each hour passes, every unanswered question sprouts even more questions. This article will deal with just one of the questions that, as a Michigan DUI lawyer, I'm asked quite frequently: "Should I get into some kind of counseling?" While my answer is most often a simple "no," there is a longer explanation behind it, and that will be the focus of our current inquiry.

To begin, I have to define a few things, beginning with me:

alcohol dice.jpgFirst, and technically speaking, I am a Michigan DUI lawyer because I am a licensed Michigan attorney. More accurately, I am a Metropolitan Detroit, Tri-County area DUI lawyer. Specifically, that means that I am a DUI lawyer who only handles cases in Macomb, Oakland and Wayne Counties. This means that I know how things work in the courts of the Detroit area. All of my experience is here, and after 23 years, I've certainly accumulated a lot of it. If you're facing a DUI in Macomb, Oakland or Wayne County, I know the difference between one court and the next, and even between different Judges in the same court. The other side of the coin, though, is that while I suspect things might be similar beyond the Detroit area, I don't really know.

Second, a "1st offense DUI" means, rather obviously, any DUI charge if you don't have any priors. Yet even if you do have a prior offense, as long as the conviction for it occurred more than 7 years before the arrest for your current charge, the new case can only be brought as a "1st offense." That 7-year mark is critical because the law begins measuring the date of your last DUI from the date of conviction, meaning the date on which you pled guilty.

Third, a "high BAC" charge, sometimes written up as "OWI enhanced," or otherwise known as "super drunk" is still a 1st offense. In fact, legally speaking, you can only be charged with this "enhanced" DUI if you are a 1st offender. Of course, as noted above, if you had a prior more than 7 years ago, any subsequent charge is a 1st offense. To be clear, it doesn't matter what your BAC results, if you have had a prior DUI within 7 years, you cannot be charged with the "high BAC" or "enhanced" OWI.

Fourth, and following from above, the technical name for a drunk driving charge in Michigan is really OWI, which stands for "Operating While Intoxicated," and not "DUI." There is no legal term called "DUI," nor is there a charge named "DWI." While people use these terms rather freely, you will never see anything except "OWI" or "Operating While Intoxicated" on a ticket or any official paper issued by the state, or by a court. After years of using the technically correct term, I finally gave up and gave in and now use "DUI" just like everyone else.

Fifth, the terms "counseling" and "treatment" are often used interchangeably. For the most part, this is okay, but the reader should recognize that someone staying at an inpatient facility and being given medication to ease the effects of alcohol withdrawal is being "treated," and not "counseled." By contrast, someone meeting with a substance abuse counselor once or twice a week is in "counseling," and not really being "treated." For simplicity's sake, we'll stick with the common, interchangeable use of the term counseling and treatment, having at least noted, at the outset, that they can, technically speaking, refer to different rehabilitative modalities.

A lot happens when you're arrested for a DUI. The first 24 hours following your arrest is stressful. As soon as you think of one thing, another pops into your head, and soon enough, your head is practically spinning. Of course, everyone wonders if there is some way to just make the whole thing go away. What if the officer didn't read me my rights? Maybe they can cut me some slack because I have a good record and a good job and this is really going to screw me up...

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August 23, 2013

Michigan Criminal and DUI Charges - will Anyone find out About me Being Arrested?

It costs a lot of money to advertise and a lot of time to become well known as a Michigan criminal lawyer, or a Macomb DUI lawyer, or even a Michigan driver's license restoration attorney. In fact, to become "known" through advertising, in any of these capacities, at least by the general public, would cost a fortune. As a result, when a case comes along and a lawyer is contacted by the media about his or her client, the opportunity for what amounts to hundreds of thousands of dollars of "free" publicity presents itself. Without thinking, many lawyers will jump at the chance, often with a vague recollection of the notion that "there's no such thing as bad publicity." This is selfish and shortsighted thinking, at best.

If a lawyer's primary concern is getting his or her name "out there," then this is like winning the lottery. If, however, the lawyer's primary concern is the well being of his or her client (as it darn well should be), then deflecting, rather than basking in the spotlight is very often the better, if not the more expensive choice. The inspiration for this article is the result of a recent case that came into my office. As I discussed the matter with my senior assistant, Ann, we realized that by doing the right thing for the client, I would literally be turning away an incalculable amount of free publicity. Yet it is precisely in my client's best interests for this case to disappear, as much as possible, from the public radar.

Headline News 1.2.jpgImagine that you are arrested for some kind of criminal charge, or even a DUI, and somehow or other, it winds up in the paper, or on TV. It doesn't have to be a feature or huge, front-page story, but for some reason word of your arrest gets out. Immediately, people who know you start talking. Your employer may find out. At that point, what's the best thing that could happen? When you really think about it, the best thing that could happen is for the whole thing to just go away. There is no way to undo the publicity that has already been given to the story, so what you really want is that no one else hears about it, and that everyone who already has just forgets about it.

That won't happen with some self-serving lawyer yapping away about your case. No matter what he or she says, or how much he or she insists that you're innocent, all the attention is just that- attention, and it focuses right on you. If you want a situation to go away, you need to make it go away, and the first way to achieve that is to NOT talk about it. Over the years, I have quietly been involved in many cases that have started out being watched by various media outlets. You wouldn't know about any of them, and that's precisely the point.

Beyond just deflecting attention away from a client, I believe in deflecting it away from the officials involved in it, as well. It is far better to handle a case when neither the prosecutor nor the Judge feel the weight and scrutiny of the public gaze. To be sure, there are some cases that will always hold the public's attention. When a public figure (think Kwame Kilpatrick or O.J. Simpson) is in trouble, the media will follow the case no matter who says what. There are also certain kinds of cases that capture the media's attention just because of the facts. Most often, these are serious cases. A particular murder, kidnapping, or even case of the church secretary embezzling hundreds of thousands of dollars will sometimes be "interesting" enough to follow independent of anything any of the parties say about it.

It's sometimes easy to forget that Judges are elected officials. So is the county prosecutor. As much as any politician wants "good" press, he or she certainly wants, more than anything, to avoid any "bad" press. Being seen as soft on crime is not a political asset. Imagine, for a moment, that you're a Judge. When election time rolls around, do you think it could ever hurt you to be known as the Judge who is really tough on drunk drivers? Yet if your opponent were challenging you by claiming that you had been too soft on drunk drivers, you'd be stuck defending yourself. Looking at it from an electability standpoint, being seen as tough on drunk drivers is an asset, while being seen as too soft is a political liability.

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August 12, 2013

Michigan Driver's License Restoration and DUI - Problems with Ignition Interlock

In my day-to-day work as a Michigan driver's license restoration lawyer and a Michigan DUI attorney, I deal with the whole panorama of problems that arise for the use of an ignition interlock unit, from false positive test results to the utter lack of any real "tech support" or help from the vendors. In fact, it's hard to use the term "ignition interlock" and not use the word "problems" in the same sentence. While the technology has come a long way over the last number of years, it's still fraught with innumerable problems. In truth, it's far more a matter of luck, rather than anything else, if and when someone drives a year or more driving with one of these units and things go smoothly.

A few days before this article was written, I attended an ignition interlock seminar put on by one of the vendors of these units. I learned a number of things, but chief amongst them, and somewhat to my dismay, is that I happen to know a lot more about these units than most of my colleagues. It's not that I'm any smarter than anyone else, but rather that I have loads of experience with these devices as part of my Michigan driver's license restoration practice. Unfortunately, or perhaps fortunately for the reader dealing with an interlock nightmare, virtually all of my considerable interlock experience is the result of problems caused by these units. It's likely that if you're reading this, you've run into some problem with yours, or are looking for someone that has.

InterlockDemo.jpgRather than laundry list what can go wrong with these units, I think that a few significant points from my recent seminar are relevant here. First, although the particular vendor hosting the seminar did a good job of showing how much these devices have been improved as a result of new and evolving technology, it had to be admitted that they are machines, and, as a result, they do, admittedly, malfunction.

Second, and perhaps most significant, there is really nobody who works with these units who has any comprehensive knowledge about them. That's not to say that there aren't engineers and other technical people at the design and manufacturing level who don't know what they're doing. In the field, however, in terms of lawyers, Judges, probation officers, Michigan Secretary of State Driver Assessment and Appeal Division (DAAD) hearing officers, and even service technicians, it seems that there is a decided lack of understanding about ignition interlock units, how they work, and how often they can be wrong, as well as why they can appear to be functioning normally and produce inaccurate results.

I left the seminar feeling like more of an expert than anyone there because I have a thorough knowledge of the legal situations in which ignition interlock units are used, the evidentiary standards that these units are supposed to meet, both in court and before the Secretary of State, meaning the DAAD, the standards of reliability that are (often incorrectly) attributed to them, and the practical and technical considerations that govern how they work in the real world.

Third, the science "behind" ignition interlock units is very different from the science behind the "DataMaster" breath testing machine used in police stations after a person has been arrested for a DUI. This is an area I intend to cover in another article or articles, but the key point here is that the DataMaster is supposed to give a very accurate reading of how much alcohol you have consumed. It goes without saying that there are limitations with that, and that is fertile ground for a DUI lawyer to challenge the evidence. Even so, we are told that the DataMaster can and does distinguish between "mouth alcohol," meaning residual amounts of trace alcohol NOT consumed but left in the mouth from things like food and mouthwash, and real alcohol that has been consumed by a person. I have personally attended seminars where that has been demonstrated to be untrue, but the larger point that relates to an ignition interlock unit is that even the manufacturers warn that the unit cannot tell the difference between trace alcohol from mouthwash or straight whiskey. As the presenter at my recent ignition interlock seminar explained their limitations, "These things detect alcohol. Alcohol is alcohol."

And for all of that, anyone dealing with an ignition interlock unit clearly did not win any evidentiary challenges to the DataMaster breath testing machine used in the police station in his or her underlying DUI case. That brings us to the present...

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August 2, 2013

Detroit DUI means Metro-Detroit, Tri-County area Drunk Driving

Amongst the things that define a DUI lawyer, or really any attorney, for that matter, are two somewhat different, and often confused things: Where one's office is located, and where one practices. These are decidedly not the same things, although the "where" part makes them sound interchangeable, at first. In the geographic sense, for example, I am a Macomb County DUI lawyer. In terms of where I practice, however, I rather often elect to define myself as a "Detroit DUI lawyer." What I really mean, of course, is that I'm a Metropolitan Detroit, as in Tri-County (Macomb, Oakland and Wayne), DUI lawyer. Specifically I not only practice regularly in the courts of the Tri-County area, but I only practice here. This means that I do not defend against DUI charges outside of Macomb, Oakland or Wayne Counties. Consequently, I can use my intimate knowledge of how things are done in all of the courts in the greater Detroit area to your advantage.

I think this is rather vitally important. While I have written about the significance of location in a DUI case both on my website and on this blog, almost by necessity, those articles have tried to explain to someone facing a DUI why the "where" part of his or her case is so important to him or her. I thought I might turn the tables a bit here and present things from my side, as the DUI lawyer. This article will be a bit different than my usual examination of how cases work. Instead, and as I like to do from time to time, I will pull the curtain back a bit and give the reader something of an "inside look" at the practice of law (here, our focus will be on handling a DUI case) from the lawyer's point of view.

Mapper 1,2.jpgPerhaps the best way to do this is to remind the reader of one of the first questions he or she is asked when calling or emailing around to the various DUI lawyer's you're screening. If you haven't started making calls to or emailing lawyers yet, keep this in mind as you do. Pretty much every DUI lawyer will ask where your drunk driving arrest took place amongst his or her very first questions. There's a reason for this, and it doesn't have to do with mileage, either. Where your case is pending, at least to an experienced DUI lawyer, like me, provides an entire framework for how things will play out your case.

Consider these facts: If you're arrested in any of the Oakland County cities covered by the 48th district court in Bloomfield Hills, the 52-3 district court in Rochester Hills or the 52-1 district court in Novi, you will almost invariably be required to submit to alcohol testing as a condition of your bond following your arraignment. The same holds true if you have been arrested for a DUI in St. Clair Shores, even though it's located in Macomb County. However, if you were arrested in any of the cities covered by the 41-B district court in Clinton Township, the 41A district court in Shelby Township, the 42-2 district court in New Baltimore, the 39th district court in Roseville, or in the 41-A district court for the city of Sterling Heights,, there is almost zero chance of that. In fact, if you were arrested in any of those latter places, you probably won't even have to go to court for an arraignment.

That's only the beginning. When I find out where a case is pending, my mind immediately goes to the Judge or Judges presiding in that court. While it's my job to get along with every Judge before whom I appear, any lawyer who pretends to be equally happy with every Judge before whom he or she appears is doing just that; pretending. In some places, that means I hope a certain kind of DUI is assigned to one Judge, while another kind of DUI is given to a different Judge.

Make no mistake about it, either; DUI cases are as different as flavors of ice cream. Some DUI cases involve accidents. Others come about because of a cell-phone tip. Some people have really high BAC scores, while others aren't too far over the limit. Some Judges have more of a "thing" with one kind of case over another. When a prospective client tells me, for example, that she blew a .21 and was arrested in city X, I know that, no matter how strong the evidence in her case turns out to be, things will still go a lot smoother than if, by contrast, she only blew a .16 but was arrested was in city Y. "Where" makes a huge difference in a DUI case.

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July 15, 2013

Michigan DUI - The Arraignment After a Drunk Driving Arrest in the Detroit area - Part 2

In part 1 of this article, we began exploring the arraignment stage in Michigan DUI cases. In my role as a Detroit DUI lawyer, meaning a DUI attorney who exclusively handles drunk driving cases in the Tri-County, Metropolitan Detroit area, I have learned that OWI (in Michigan, "DUI" really means "OWI," or Operating While Intoxicated) cases are often handled differently between one court and another, and that begins with the arraignment. As we'll see in our continuing examination, if you're arrested for a DUI in Clinton Township or Sterling Heights, for example, you most likely will not have to go to court to be arraigned as you would if your DUI case occurs in Novi, or Royal Oak.

We then noted that an arraignment serves three main purposes, and we looked at the first two of those: Informing the person of the exact charge being made against him or her, and setting bond and bond conditions. In this installment, we'll pick up by looking at the third main purpose of an arraignment, advising the charged person of his or her rights, and then we'll see how in some cases, and in some courts, the whole arraignment stage can be "waived," or skipped completely.

Handy Judge 1.2.jpgAs I just noted, the third main purpose of an arraignment is to advise a person of his or her rights. Either the person will be given a form, called an "Advice of Rights," to read and sign, or the Judge or Magistrate will verbally advise the person of his or her rights, most often, just by reading them off the Advice of Rights form. In the real world, this comes down to a more detailed outline of the "rights" you hear read on TV and in the movies. Principal amongst these rights is the right to remain silent, to be presumed innocent, and to have an attorney appointed for you if you cannot afford your own.

In practice, most people acknowledge understanding these rights without having the faintest idea of what they've just heard or read. This isn't anything to worry about, and is really not much different than when someone signs a "consent" form for treatment before having a medical procedure. Even so, as much as signing a consent form is a prerequisite to treatment, acknowledging that you've been advised of your rights is a perquisite to moving forward in a DUI case, or any criminal case, for that matter. The real "take away" from your rights is that you need to "get a lawyer." To the extent that anyone has any kind of pre-existing or useful understanding of his or her rights, it should be to remain silent (beyond pleading "not guilty") and not to do or say anything until you get an attorney.

It is important to differentiate these constitutional rights that must be acknowledged in court from the "rights" that the police are supposed to read at the time of your arrest. In fact, one of the most frequently misunderstood issues surrounding a DUI arrest is that the police didn't advise you of your "rights" when you were arrested. In a DUI case, your arrest rights, principal amongst them being the right to remain silent, don't really matter. By contrast, the police are required to advise you of your chemical test (breath or blood test) rights, but your arrest rights and chemical test rights are fundamentally different than the constitutional rights the Judge or Magistrate must address at your arraignment.

Continue reading "Michigan DUI - The Arraignment After a Drunk Driving Arrest in the Detroit area - Part 2" »

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July 12, 2013

Michigan DUI - The Arraignment After a Drunk Driving Arrest in the Detroit area - Part 1

In my role as a Detroit area DUI lawyer, everyone that comes to my office to hire me has either already been arraigned for a Michigan Operating While Intoxicated (OWI) charge, or is awaiting their arraignment date. This article will try and explain the meaning of an "arraignment," as well as what's involved. Before we get to that, it might first help to clarify a few terms. In Michigan, a drunk driving charge is technically called "Operating While Intoxicated." The correct abbreviation for that is "OWI." Even so, just about everyone in the world refers to a drunk driving charge as a "DUI," which is short for "driving under the influence." To be clear, there is no such legal charge in Michigan as a DUI, but since everyone just calls it that, there's no point in being different. As the old saying goes, "if you can't beat 'em, join 'em."

I have often referred to a DUI charge as "an accident of geography." While it's probably the same everywhere, I know, from more than 20 years as a Michigan DUI lawyer, that where a case occurs is very often the single biggest factor in how things will play out. Since my DUI practice is exclusive to Metropolitan Detroit Tri-County area, meaning Macomb, Oakland and Wayne counties, I know, for example, how very different a Rochester DUI will be from a New Baltimore DUI. Location matters. Shelby Township may only be 11 miles away from Troy in terms of measurable distance, but they are worlds apart in the how each treats a person facing a DUI. Beyond the fact that certain cities are just plain tougher than others, every court in the Metropolitan Detroit area has its own way of doing things, and these differences begin showing up right after, and in some cases, even before you're let out of jail following your arrest.

Arraignment 1.2.jpgSometimes, you will be arraigned even before your initial release from jail. We'll come back to this, but if this has already happened to you, then while you may not fully recall nor understand what went on, you at least have a general ideal of what an "arraignment" is all about. If you have not yet been arraigned, or, in retrospect, it all happened so fast that you don't have any real understanding of what took place, it will be helpful to explain what an arraignment is all about. While a thorough examination of this subject could fill a textbook, my goal here is to at least make clear the purpose and reality of an arraignment in a Michigan DUI case as it happens in real life, and as it happens in the courts of the Metro Detroit area.

An arraignment is the formal beginning of a criminal case. At an arraignment, the person who has been arrested for a is formally charged with an offense, and, as a result of being "charged," becomes a "defendant." Being a defendant means that you have to "defend" against the charge made against you. Thus, being arrested for a DUI doesn't really begin the criminal case, but being arraigned after the arrest does. To put it another way, until there has been an arraignment, there is no actual case.

While there's actually a lot to the arraignment stage in a DUI case, the arraignment itself serves three primary purposes. We'll look at each of these purposes in turn, covering the first and second purposes in part 1 of this two-part article, while we'll examine the third purpose in part 2.

The first purpose of an arraignment is to inform the person exactly what charge is being made against him or her. In a Michigan DUI case, a person will likely be charged with "Operating While Intoxicated," or "Operating While Intoxicated with a high BAC," or "Operating While Intoxicated - 2nd Offense," or even "Operating While Intoxicated - 3rd Offense," which is a felony.

While this may seem almost too obvious, imagine a person who is found passed out and drunk behind the wheel. The next morning, at his or her arraignment, the Judge or Magistrate informs the person that he or she is being charged with "Operating While Intoxicated" (usually, no one will tell a 1st time offender that he or she is being charged with a "1st offense" because that's just a given). Suddenly, our Defendant, Danny the Driver, wonders, "huh?" Danny doesn't remember anything about leaving the bar last night and has no recollection of ever driving, much less being pulled over or arrested.

Thus, the first order of business is to inform the defendant of exactly what charge or charges he or she will have to defend against.

Continue reading "Michigan DUI - The Arraignment After a Drunk Driving Arrest in the Detroit area - Part 1" »

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June 21, 2013

Detroit DUI - Your Personal Accomplishments Matter

In a recent update to the DUI section of my website, I addressed how critical the concept of "who you are" is in a Michigan Drunk Driving case. This article will be an adjunct to that. In my role as a Detroit DUI lawyer, the single most important part of my job is to protect my client's interests. It has long seemed to me that there is a tendency (more like a failure, really) amongst DUI lawyers to focus rather exclusively on the evidence in a case, without enough consideration of the person facing the charge. Your personal characteristics are an important asset that has crucial strategic value in the proper handling a DUI case, at least if you're a "solid" person with a good background.

To be sure, someone with a bad record, or who doesn't have much going for him or her would be better off skipping over any personal biography and just keeping the focus on the facts of the case. If you're a good person, however, that's just an incomplete way to handle a DUI case. Often enough, a person will think, if not ask, something like "Doesn't it matter that I have never been in any kind of trouble before" or "Don't you want to know about me?" The answer to both questions is a resounding "yes!"

GoodPerson 1.2.gifWithout question, NOT having been in trouble before is an asset. Yet the honest flip side to this, in a DUI case, is that simply not having any kind of prior record doesn't get you a free pass. Even so, it's the context in which your lack of any prior record is presented to the prosecutor and the Judge that matters. Let's consider how two different lawyers might do just that. Let's suppose our imaginary defendant, Donna the driver, is facing a 1st offense DUI in a local, Detroit area court, and that she's 40 years old, with no prior record. In each example, she has hired a lawyer who we'll join in the conference room, meeting with the prosecutor, during the pre-trial of her case:

Lazy Linda the lawyer tells the prosecutor, "My client, the one in this file," (pointing to a file on the prosecutor's desk) "has no priors at all" (meaning no prior record). That's it. Figuring that her client's lack of any prior record is her best asset, Lazy Linda thinks she's just pulled the trigger on her biggest gun.

Andy Ambitious the attorney takes a different approach. He sits down across from the prosecutor and identifies his client as Donna. "Let me give you a little bio on her," he begins. "First off, she's 40 years old and has never been in any kind of trouble before; not even a recent traffic ticket. She is a nurse at [such and such] hospital, and has been there for the last 8 years. She's married, and has 2 kids. Donna has worked hard her whole life, and has always done the right things. She earned a nursing degree, got married and lived like every other law-abiding citizen. She had to take a break from school when she had her first kid, but she went right back and graduated with honors. On top of all that, she's a really nice person, and if you met her, you'd like her. She does lots of volunteer and community stuff; she helps out at all her kid's school's bake sales, and does all kinds of other stuff like that. She has literally freaked out over this; she's really paranoid about losing her license because she is sometimes on call at work. She is just the kind of person you'd want as a next door neighbor, and, believe me, as distraught as she is over all this, you can be sure it won't happen again. She's not a big drinker. This is totally out of character for her and what she normally does. This is her one mistake in life; she's earned a break."

It's obvious that "who she is" matters to Donna's case. Is there any question about the importance of using that to her advantage? Lazy Linda made the crucial mistake of turning control of the discussion back over to the prosecutor. Ambitious Andy, by contrast, not only kept control of the discussion, but was directing the outcome of it, as well. These fundamentals of persuasion don't occur in a vacuum; in any "discussion" where a resolution will be reached, there is always a leader. Either you're the leader, or not. There is no middle ground.

There is another aspect to this whole "who you are" subject, as well. It's called "social capital." Just like money, the more of it you have the better, and it's a serious disadvantage to be without it. Social capital refers to things like a person's place in life, and the support of community, family and friends available to them in times of need. A homeless panhandler with no job, few friends beyond those with whom he sleeps under the bridge and only enough worldly possessions to fit in a single grocery bag has no social capital. Donna the nurse has lots of it. While social capital is different than money, there is some correlation between the two. Typically, a person of middle class has a lot of social capital. Social capital matters in a DUI case.

Continue reading "Detroit DUI - Your Personal Accomplishments Matter" »

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June 17, 2013

Michigan DUI and Driver's License Restoration Lawyer's Warning to Avoid Nyquil

In my day to-to-day work as a Michigan driver's license restoration lawyer and a Detroit DUI attorney, I spend most of my time dealing with alcohol, and the problems it causes. One of the biggest problems I run into is a positive alcohol test result. If you know what that means, then you're likely subject to some kind of testing, whether it be by ignition interlock, or because you have to provide a breath or urine sample somewhere. If you're facing a DUI in the Detroit area, or want to restore your Michigan driver's license, (or you need a clearance of a Michigan "hold" on your driving record because you want to get a license in another state), your relationship to alcohol takes on a primary role in your life. In the context of a Michigan license reinstatement case, where the central issue is that a person has quit drinking, my efforts are directed to understanding, and then explaining a your former relationship to alcohol, meaning how they made the transition from drinker to non-drinker. In a Detroit area DUI, I have to examine and help you define, and perhaps redefine, your drinking behavior.

In a 1st offense DUI, we'd hope, right out of the gate, that your drinking is not problematic, and that we can show that your arrest represents an isolated and out-of-character incident. In 2nd and 3rd offense cases, the law automatically presumes that a person has a troubled relationship to alcohol, so my efforts are directed to changing both the appearance and the reality of your alcohol use.

cold-medecine-scotch 1.2.jpgThat all sounds great. Yet in the real world, if you're in any of these situations, things aren't really that great. Chances are, you are being (or darn soon will be) tested for alcohol. You are expected to come up clean, and test negative. And for all of that, nothing can cause more immediate damage than a person testing positive for alcohol.

At its simplest, testing is mandated to make sure you're not drinking. It's trouble enough for some people to stay away from alcohol, I've learned. Most often, those who test positive for alcohol are either on bond, while their DUI case is pending, or on probation as a result of it. For whatever reason, a person will take the gamble and drink, figuring they either won't be tested, or enough time will have elapsed so that if they are, their result will be clean. Perhaps they think they have it all figured out; I never get calls from anyone telling me that they drank and didn't get caught. I'm called either when they do get caught, or, even worse, when someone tests positive for alcohol but has not been "drinking."

Almost every week, I hear from someone who has delivered a positive alcohol test but swears that he or she was not drinking. Most often, the story goes that they used mouthwash with alcohol in it, or they were feeling sick and took cold medicine with alcohol in it, sometimes without ever realizing that in doing so, they were "consuming" alcohol. The real problem is that, as much as I hear this story weekly, the people who monitor test results, meaning the Secretary of State, the court, or the probation department, hear it every day, and probably multiple times every day. The famous "Nyquil excuse" has become just that - an all too famous excuse. It has really come to lose any legitimacy as an explanation for a positive alcohol test. This, of course, presents a huge problem to anyone for whom it's the truth.

To put this in perspective, I have a flyer in my office that I received from a local, Macomb County probation officer that his department has posted on the window of its office warning against even trying the Nyquil excuse for a positive alcohol breath test. The information explains that a person would have to drink a rather large amount of Nyquil to achieve anything above a trace BAC result, and that before they were able to consume enough to produce such a high positive test result, they'd be on the floor experiencing seizures as a result of all the other ingredients contained in any kind of cold medicine. The flyer backs up its warning by citing the Michigan State Police toxicology lab its information source.

If I can get one thing across in this article, it's that you have to make an effort to avoid being in this situation. It is my hope that someone will read this article before they take a morning swig of cold medicine, rather than after.

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June 14, 2013

Michigan DUI Second Offense - Staying out of jail

This article is going to be a rather direct examination of what most people facing a 2nd offense DUI in Michigan have as their most important concern: Staying out of jail. As a Detroit DUI lawyer who limits his Michigan DUI practice to the metropolitan Detroit, tri-county area, I have a wealth of experience in these local courts and know how to avoid a jail sentence where and whenever possible. This article will NOT deal with sobriety court: That option is only available in certain places and it's a subject that has its own section on my website.

First and foremost, a DUI case is what I call "an accident of geography," meaning no one plans on getting arrested for drunk driving in the first place, so where it happens is never a matter of design. In that regard, certain courts are just tougher than others. Of the three local, Detroit area counties, the courts in Oakland are much less "lenient" than those of either Macomb or Wayne. That's just a fact. Even so, there are certain cities in Oakland County, like Royal Oak and Huntington Woods, that will seem much more "forgiving" than places like Bloomfield Hills or Rochester Hills. The same holds true amongst the various cities of Macomb and Wayne Counties, and, I imagine, for every county in Michigan with more than one District Judge. The essential difference is that if you had a choice, you'd always prefer to wind up in pretty much any court in Macomb or Wayne over as opposed to anywhere in Oakland County

Jail Hands.jpgLet's start with a dose of reality: The undeniable truth in a 2nd offense DUI case is that you look like you're a danger on the road. I defend DUI cases and keep my client's out of jail all day long by recognizing the way things really work. If you're going to have success at staying out of jail, you need a lawyer, like me, who darn well knows exactly what the Judge assigned to your case is thinking, and one thing you can count on is that there isn't a Judge (or really anybody, for that matter) who doesn't see a second time DUI offender as risky. This means that blundering into court and trying to explain that a second DUI charge is only a case of bad luck, and doesn't really represent anything to worry about, is worse than rolling into court with no plan at all.

Here's the rest of the bad news: The law essentially presumes that you have an alcohol problem in a Michigan 2nd offense DWI case. You are legally and technically classified as a "habitual offender." As a result, the court is required to order you into counseling. There's no way around it. In addition, the law requires that your driver's license be revoked and that you cannot even start the process to ask for it back for at least a year, and only then after you attend and win a hearing before the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD). There, in order to win your license appeal, you must prove, by clear and convincing evidence, that your alcohol problem is under control and that it is likely to remain under control. There's a lot to all of this. If you're facing a 2nd offense, you don't need me to "rub it in," but surely you know this is a much bigger deal than a simple first offense.

Here, it's important to reiterate the focus of this article: Staying out of jail in a 2nd offense drunk driving case. We could make an endless examination of the nuances of 2nd offense cases, but here, we're only concerned with not getting locked up. The good news is that if you succeed on that score, you will be free to attend to and deal with all these other things. While none of this is fun, avoiding incarceration in a 2nd offense DUI is the first order of business to which I attend as your lawyer.

For the most part, this is manageable. With a few exceptions, going to jail is not necessarily automatic. Even so, you have to have a plan that takes into account the 3 key variables present in every 2nd offense case. That's where I come in...

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June 10, 2013

Michigan DUI 1st Offense -The Drinking Problem you don't have - Part 2

In Part 1 of this article, we began examining the risk of being perceived as having a drinking problem you don't in a Michigan DUI charge. In this second part, we'll continue that inquiry with a closer look at how a 1st offense DWI can lead to a general perception that the person arrested must have some kind of problem with alcohol.

As a Detroit DUI lawyer, I am well aware of, and on guard against this all too common by-product of a 1st offense drunk driving arrest. Just being a Michigan DWI attorney isn't enough, however, and that's why I am formally involved in the University, graduate level study of alcohol and addiction issues, including how these problems, develop, how they are clinically diagnosed, and the various methodologies of treatment. This means I can protect you from being seen by the court system as having a drinking problem and defend you from any such lingering suspicion because I can argue like (and even with) a clinician; I speak their language, and I speak the language of the Judge, as well.

wineglass 1.2.jpgIf there's a flaw in the way Michigan courts process DUI cases, it's that too many people in the process "play" clinician, and none of them are. From arresting cop to Judge to probation officer, everyone has an opinion. The problem is that some of those opinions, particularly that of the probation officer or the Judge, matter. This is where my specialized knowledge can help your case.

When you step back and look at this part of the DUI process, what you really have is a probation officer playing substance abuse counselor. The probation officer has to give you what amounts to an "over the counter" alcohol-screening test, and then score that test. That's the whole of the process by which you are found to have or be at risk for a drinking problem. The probation officer is also tasked with interviewing the person, and then taking all that information and putting it together into a legally required written sentencing recommendation that must be sent to the Judge prior to the actual sentencing date. The law also requires that a copy of that recommendation be reviewed by the person being sentenced, with his or her lawyer, before the judge actually imposes the sentence, thereby giving the person the opportunity to object to anything that needs correcting, and to comment as to the probation officer's recommendation.

This is huge. In fact, this is, without a doubt, the most important part of a DUI case. We're talking about what the Judge is going to do to you. When someone looks around for information about a DUI, it's not because they want to know in case something ever happens down the road. People want to know, as in immediately, "what is going to happen to me?" Well, this is it.

In the real world, meaning the world where you're actually going to be standing in front of the Judge, what is going to happen to you is pretty much exactly what is recommended by the probation officer. Every Judge in every court, or at least every Detroit area court, follows the probation officer's recommendation as if it were a blueprint for what to do. There is simply no case where the Judge will disregard his or her probation department's recommendation on a wholesale basis. This is, after all, part of the probation officer's job. From the court's point of view, the probation officer is in the best position to decide what kind of counseling, education, punishment and/or supervision a person should get for a DUI. This is certainly the most practical way to handle things, but it runs roughshod over the clinical reality that the probation officer has no more specific training in determining your substance abuse needs as your hair stylist (no offense to hair stylists).

But I do. I work with the diagnostic criteria for alcohol issues every single day, pretty much all day as part of my driver's license restoration practice. I can analyze and discuss concepts of the etiology, diagnosis and treatment of alcohol problems that most probation officers don't even know exist. This means that I can protect you from being seen as having a drinking problem that you don't have.

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June 8, 2013

Michigan DUI 1st Offense -The Drinking Problem you don't have - Part 1

As a Detroit DUI lawyer, I interact with people facing a Michigan 1st offense drunk driving charge practically every day. Almost automatically, and without prompting, many of these people want to explain that they don't have a drinking problem. It almost goes without saying that being charged with DWI at least raises concerns about a person's drinking habits, especially from the court's point of view. At least someone facing a 1st offense can rightfully point out, in response, that nothing like this has ever happened before. That, however, is far from enough.

In this 2-part article, we'll look at how someone facing a DUI in Michigan, and particularly a DUI in the Detroit area, where I practice, will have to be proactive in refuting the kind of built-in, preconceived notion that they have, or at least are at increased risk to develop a drinking problem because they have been arrested for drunk driving.

Drinking Problem 1.2.jpgIn a Michigan DUI case, there is a process, required by law, to evaluate the person charged to determine whether or not he or she has a problem with alcohol, or if that person is at elevated risk to develop a problem down the road. In theory, one would think this would be good enough. After all, if you don't have a problem, then a competent evaluation will prove that, right? So you'd think...

The problem is that "the system," meaning the court system, has a way of functioning somewhat different in reality than it's supposed to in theory. This should make immediate sense to anyone who is required to test for alcohol (and/or drugs) as a condition of bond after a DUI arrest. What happened to your "presumption of innocence"? How did you go from supposedly being presumed "not guilty" to being ordered to not drink, and then having to prove, at your own expense, that you're not? While this isn't the worst thing in the world that can happen to you, it does provide a pretty accurate example of how very different things actually are from how they're "supposed" to be.

A fine, if almost funny example of this occurs if you call the IRS. Once you get on the phone (and on hold), you'll hear lots of messages explaining that your wait is because all available representatives are on the phone with other "customers." Are they kidding? Maybe in their pamphlets they call taxpayers "customers," but no one I've ever met chooses to do business with them. In the real world, we're "taxpayers" at best, and "victims" at worst, but never, at any point, does anyone call himself or herself a "customer" of the IRS.

In the "real world," DUI cases, as most things, can be examined from those 2 perspectives: How things are supposed to be, meaning how they're explained in books and theories, and how things are really done. In driver's training, we're taught to keep our hands on the steering wheel at the 10 and 2 o'clock positions, to keep 1 car length for every 10 miles and hour we're going between our vehicle and the car in front of us, and to never exceed the speed limit. When is the last time you did 70 miles an hour on the freeway and left 7 car lengths between yourself and the car in front of you? In the real world, you're all but expected to go about 40 miles an hour in a 35 mph zone. You get the idea. With DUI charges, it's the same thing; the way things are handled in the real world is entirely different from how it's made out in books and TV. Let's explore how things really work...

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May 3, 2013

DUI in Shelby Township (including Utica and Macomb Twp.)

The 41-A District Court in Shelby Township covers 3 municipalities: Shelby Township, Macomb Township, and the city of Utica. If you're arrested for a DUI in any of these places, your case winds up in the Court a Detroit DUI lawyer like me simply calls "Shelby."

Of course, it goes without saying that no one wants to face a drunk driving charge. I have often called any Michigan DUI charge "an accident of geography" because absolutely no one expects to go out and get a DUI in the first place, much less plans on where to get it. Sometimes, you wind up driving to different and distant places to meet up with others, and might, for example, drive all the way from Westland to Novi to Rochester to New Baltimore. You could get pulled over anywhere along the way, and given the (somewhat unlikely) route used in this illustration, you could find yourself in either one of the toughest or the most "forgiving" (as in "lenient") jurisdictions in the Detroit-area, or anything in-between.

Judge Doug 1.2.jpgThe point is that a DUI just happens where it happens. No one plans any part of it, although some would argue that a rather distinct lack of planning is the reason it happens in the first place. We'll let MADD deal with that part of thing; for now, we'll just stick to talking about "Shelby."

If you were going to plan to get a DUI, however, you'd certainly want to wind up in a lenient jurisdiction where the penalties weren't so severe and the Judge was nice. Shelby is that place.

Let's begin with the Judge. Having come to the Bench after working for a long time in private practice, Judge Douglas Shepherd brings a real world understanding to his position. This is hugely important, because it's a lot easier to understand people, if you're sitting on one side of the table, when you've sat on the other side, as well. Judge Shepherd, having been in private practice, knows that people charged with a DUI are often people who have made a one-time mistake, or even made the same mistake a second time. He knows that a DUI charge cuts across all groups, and that DUI defendants are your family, friends, neighbors and co-workers. Whatever else, we can't simply describe those charged with a DUI as "them." This is sometimes what the more judgmental amongst us do; these are also usually the first people to change their tune when it happens to them, or someone close to them. We think of that kind of judgmental person as being on a "high horse."

Not so with Judge Shepherd. He is, first and foremost, a decent and likeable man. You can't miss this. Look, it's no secret that when you encounter someone who is a real jerk (think of another 5-letter word that begins with the letter "a" and rhymes with "eggroll") it's a big turn off. Power is best used by those who use it the least, and that describes Judge Shepherd. I've been a regular in his Court since his election in 2000, and never once have I ever seen him make a case about him. Instead, he directs his attention to the matter before him, where it belongs. Intelligent and compassionate, he runs an efficient Court that pays homage to the first rule of everything: Common sense.

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April 29, 2013

DUI and the HGN ("follow with your eyes, not your head") Test

There is probably no sinking feeling that matches getting pulled over after having had a bit too much to drink. As often as people will have thought, only moments before, that they were okay to drive, there is a sudden concern, if not realization, that their own assessment may have been off a bit as they put the car in park and wait for the police officer to approach. No one can really smell alcohol on his or her own breath, but everyone knows when he or she is unable to walk a straight line.

There is, of course, a lot to a Michigan DUI traffic stop. As a Detroit DWI attorney, I've written rather extensively about many, if not most, aspects of the traffic stop. The fact is that you could fill several volumes about the various facets of being pulled over for suspected drunk driving. To keep our mission manageable here, and to keep your attention, as well, we'll limit our ambitions a bit and take a brief look at one small part of a DUI traffic stop and the field sobriety tests, the horizontal nystagmus gaze (HGN, or as often referenced by the police in the Metro-Detroit area of Macomb, Oakland and Wayne Counties, the "horizontal NSG") test. This is the test where the officer asks a person to keep his or her head still, and follow an object (often a finger, or a pen) using only their eyes. This test has a remarkable capacity to detect that a person is impaired by alcohol.

HGN 1.2.jpgThe HGN test measures how smoothly a person's eyes follow an object moved from one side of their field of vision to the other. As it turns out, absent any of a few particular medical conditions, a sober person's eyes will follow such an object rather smoothly, like a perfectly round marble rolling on a piece of glass. Alcohol affect the movement of the eyes, and as a person becomes more inebriated, his or her autonomic motor functioning likewise become impaired, meaning that they eyes will "jump" (kind of like that same marble being rolled over a sheet of grainy sand paper) and not track smoothly. This is completely outside of a person's conscious control, and no matter how sober or drunk someone may become, they never notice this from their own perspective.

It would be impossible to appropriately summarize the science behind the HGN test beyond pointing out that even the American Optometric Association has passed a resolution endorsing it as an effective test for alcohol impairment. The HGN test is generally believed to be the most reliable of all field sobriety tests. The flip side is that it is also almost generally impossible to independently verify, leaving proof of a person's performance on the HGN test as almost entirely a matter of believing what the police officer says (or writes in his or her report), or not. Not every police officer can administer an HGN test, however. In order to do so, the officer has to be specially trained to administer it. Given it's high degree of reliability and ease of administration at the side of the road, it's little wonder that more and more police officers are receiving this training.

The few exceptions to the scientific reliability of the HGN test as evidence of alcohol impairment don't often occur in real life DUI traffic stops. If you have a brain tumor (and then you'd have to prove that it's the kind that would affect your performance on an HGN test), a brain disease, or an inner ear disease, then this should be explored as a defense. Most conditions that would affect a person's performance on an HGN test would likewise prevent them from driving in the first place. Even then, the likelihood that such a person would be driving, and also drinking (remember, it's not illegal to drink and drive, it's only illegal to drink too much and then drive) is rather remote.

For a moment, let's skip all the lawyer-talk exceptions and exclusions and limitations and focus on the "real world." In the real world, if you're pulled over, and the police officer has you out of the car taking field sobriety tests, it's rather likely you've had something to drink. The National Highway Traffic Safety Administration has sanctioned, or validated only 3 field sobriety tests: The HGN, the heel to toe walk, and the standing leg raise. While many police officers do alphabet and counting tests, neither of them, nor any other test beyond the 3 approved by the NHTSA, really have any real legal weight.

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April 12, 2013

Predicting the Outcome of your Detroit-area DUI case

Almost every week, I get an email or two from someone who wants to know what's likely to happen in his or her Michigan DUI case. As a Detroit DUI attorney, I know how things work in all of the local Courts I go to, based upon over 20 years of experience. I don't handle drunk driving charges outside of Macomb, Oakland or Wayne County, and by limiting my practice in that way, I have increased my relevant experience almost exponentially.

Sometimes, I see a long email waiting to be read. As things work out in the real world, it more often than not it is the case that the more someone writes, the less interested they are in retaining my services. Like so many of my blog articles, this one was inspired by a recent experience. The day before this article was written, I found a long, descriptive email asking my thoughts on how the writer's DUI case would work out. The writer had hired a Lawyer at the recommendation of a friend, only to find out that the Lawyer wasn't very familiar with how things are done in the suburban Detroit Court where his case is pending.

making-predictions.jpgWithout fail, people will take the time to point out to me those things they think are important, or, they'll repeat what they've heard from their Lawyer, and now believe to be important. I don't know this guy's Lawyer from Santa Claus, so what he and I think is important could be miles apart. As I read on, I immediately formed some questions. What about this? What about that? I needed more information to even begin to form any kind of picture, and that's with all the detail this writer had already supplied.

Let's rewind for a second: This writer already has a Lawyer. At the end of my very long day, when I'm looking at maybe two hours of time for myself, how important is giving a second opinion to someone who is not, and certainly not going to be, my Client? Beyond that, before I could form any solid opinion, I'd need to see the evidence. I'd need to read the Police Report, and, if the other Lawyer was smart enough to obtain a copy of the Police in-car video, assuming it was relevant, watch that, as well.

I had to tell the guy that of course I can give a very accurate assessment of what's likely to happen, but I'd have to review all of the evidence to do that, and that would mean he'd have to be my Client. I didn't go on to tell him that I really have no interest in taking over a DUI case that's moved very far along because, in all truth, unless the previous Lawyer just happens to be a "DUI Lawyer," like me, chances are it wasn't handled in the same way I'd have handled it, anyway. To begin with the guy had taken on a case in a Court he wasn't familiar with, and that was a huge mistake, already causing problems. That's my rather lame attempt to nicely say that, more likely than not, his current Lawyer has already done other things I would consider mistakes, as well. DUI cases are hard enough, but to take one that's been botched up is a huge headache.

At least this guy had a Lawyer. Another source of frustration (or, more accurately, "time waster") are those long emails with all the details the writer thinks are important that begin with "My boyfriend..." or otherwise end with some mention of money "being tight." As I noted, I can't really offer any kind of fair "prediction" about anyone's case without all the facts, and to get a hold of all the facts, I have to be the Lawyer. Even so, I'd never email a Doctor with a long description of how something hurts, and when, and what makes it worse, and then ask for medical advice. That doesn't stop some people, though...

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April 8, 2013

How to Measure "Success" in a Detroit DUI Case

Sometimes, I like to pull the curtain back a bit on the whole Law business and give the reader a peak at some of the things that really go on behind the scenes. Depending on how you read this, I'm either giving an inside look at how Lawyers work, or I'm just putting my own spin on things to make myself look good. This article, focusing on Detroit-area DUI cases, might turn out to be a little of both...

It's no secret that the internet has "taken over" many aspects of our day-to-day lives. Newspapers are dropping like flies while online reading has soared. Video stores are disappearing faster than friends of Kwame Kilpatrick as streaming video displaces DVD rentals. The legal profession is migrating to the net as part of this rather seismic shift. Five years ago, websites for Lawyers were an afterthought. While not amongst the very first, I was certainly an early adopter. Now, everyone has a website, and a whole cottage industry to push those sites onto your browser has grown beyond belief.

Measurer 1.2.jpgThis can be a very deep topic, but the bottom line is that, as a Lawyer, you want a highly ranked site that gets Clients. To accomplish this goal, one must navigate the "rules" established by the search engines, with Google being the biggest player of them all. Thus, when designing or redesigning or optimizing a website, the real goal is to come up high on relevant Google searches. Google refines its rules from time to time, and when it does, every one follows suit. Where it used to be that having a basic but simple "Lawyer website" made you stand out from the crowd, now that everyone has a site, having good content is more important than ever. While that should always be the case, and given that about 60% of all internet searches are conducted through Google, this means that as a Lawyer, you want to make sure your site is "liked" by Google. Now that Google is screening for good, relevant and plentiful content, there are specialized companies offering services for Lawyers to have such content professionally written. Just Google "legal content writing" and see for yourself.

That kind of scares me.

I write all of my own content on both this blog and my website. That's not a boast, because I'm sure there are plenty of better writers than me out there, but the more important point is that I write for my particular Clientele. I know every word of my site and blog, because I've written every word of it. I certainly cannot compete with the "experts" who know how to lace such content with specialized "keywords" that make a site more highly ranked by Google, but I don't' think any one of them can compete with me when it comes to talking in real terms about DUI charges, and how they play out. There's no guy in LA who can write about the Court in Rochester Hills, or Troy, or Shelby Township, or New Baltimore or Detroit, first because as much as he might be a legal writer, he's not a Lawyer, and second, because he's not from Michigan, anyway.

One of the biggest things internet marketing specialists push to Lawyers is to load up your site with testimonials, or success stories. I have some real, honest to goodness testimonials on my site culled from the emails of grateful Clients, but I feel funny about asking people to write them. I have a few more "in the bank," so to speak, ready to use when the current batch gets old, but I'll only take them if they are spontaneous. When I see a boatload of testimonials on any site, I cannot believe that they're all spontaneous, or so well written, either.

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March 8, 2013

Probation in a Detroit-area DUI

In my role as a Metro-Detroit DUI Lawyer, I answer every conceivable kind of question about the DUI process. One question that virtually everyone asks is about Probation. I'm asked everything from what "Probation" means, to what it entails, whether or not I can help my Client avoid it, and if any kind of exception can be made to accommodate some circumstance a person facing a DUI has. This article will be a brief, minimalist summary of what Probation means in a DUI case.

Within the more than 120 DUI articles I have on my Blog, some make a rather detailed examination of the whole Probation process, requiring 2 installments to do so adequately. This article will be the polar opposite of that. If I've had to learn anything the hard way, it's that not everyone is interested in the textbook treatment and microscopic analysis that defines most of my earlier articles.

Probation 1.3.jpgProbation is, first and foremost, an alternative to incarceration. In a DUI case, it is given as an alternative to Jail. To be clear, a person can be put in Jail for a few days and then be let out on Probation, but in most cases, and in this article, we'll be referring to Probation in lieu of Jail. Probation comes in 2 major types: Reporting, and Non-Reporting. You don't even have to know much about Probation to know that Non-Reporting sounds better, and it is; everyone wants Non-Reporting Probation. Probation is usually given in terms of either 12 months (most common), 18 months (more common in Oakland County), or 24 months (usually handed out in 2nd Offense cases).

Non-Reporting Probation simply means that you don't have to show up and report, in-person, to a Probation Officer. Sometimes (although rarely), it can mean that a person has to write-in periodically and either complete a form, or in some other way communicate with their Probation Officer, who is often just called the "P.O."

Here's the real skinny: In a DUI case, Non-Reporting Probation is a possibility in certain Courts in Macomb and Wayne Counties, but will never be given in Oakland County. If you have a DUI in any Court in Oakland County, you are more likely to win the Powerball Lottery AND the Publisher's Clearing House Sweepstakes on the same day than you are to get Non-Reporting Probation.

Reporting Probation is far more common. Reporting Probation requires that you go to the Probation Department (usually in the Court where your case was heard) and meet with a Probation Officer. Most of the time, this is done once a month, although a person can be required to report more or less often than that. Part and parcel of Reporting is that you fill out a form that asks if anything has changed since your last Report. Here, you're supposed in indicate if you've moved, changed jobs, or anything like that. You're also asked if you've had ANY Police contact.

The defining element of Probation is "Conditions." Probation is really a specific period of time during which you must not do certain things, and very often must do others. This is really no different that being hired for a job for a probationary period. The company wants to make sure you do certain things, like meet quotas, and NOT do others, like show up late, or miss time. In a DUI case, the standard conditions require that you pick up no new Criminal Offenses, and that you do not drink or use any kind of drugs. This is often backed up by some kind of breath or urine testing, to insure compliance.

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March 4, 2013

Avoiding the big risk in a Detroit-area DUI case - Part 2

In Part 1 of this article, we began to sketch out how a person facing a 1st Offense DUI charge risks being found to have, or to develop, an alcohol problem. We'll continue that examination is this 2nd part, and we'll look at some specific examples of how my knowledge of alcohol and addiction issues can help minimize the negative legal consequences a 1st Offense DUI Client faces in Court.

The study of alcoholism is a highly specialized field. Understanding the diagnostic testing procedure involves much more than just thrusting a multiple-choice test in front of someone and then reviewing their answers next to the scoring key. The upshot of delegating the responsibility of determining if a person has an alcohol problem, or is at risk to develop one, to a Probation Officer is that a LOT of mistakes are made. I know. I catch them all the time.

Risk 1.2.pngPerhaps the most common mistake made by a Probation Officer screening someone in a 1st Offense DUI case is that, although the person tests out as NOT being at risk for an alcohol problem, and because the Probation Officer, who has zero training in the actual clinical criteria for assessing the existence of such a problem, will use their "gut" and include something like this in the Sentencing Recommendation: "The Defendant's answers to the alcohol screening questionnaire coupled with his high BAC score suggests a potential drinking problem and indicates that Counseling would be beneficial," or "The Defendant's responses on the alcohol evaluation as well as the seriousness of this Offense indicate that Intensive Out-patient Counseling would be helpful in helping the Defendant to gain an insight into his drinking." This kind of generic-speak is absolutely non-specific enough to sound clinical, and almost profound.

But it isn't. The fact is, things like a person's BAC score are NOT part of any diagnostic criteria used to assess whether or not they have an alcohol problem. Nor is the "seriousness" of any particular DUI Offense. In fact, the "diagnostic criteria" (set forth in what is know as the "Diagnostic and Statistical Manual," or "DSM," and published by the American Psychiatric Association) speaks only of "recurrent" legal problems. It does not, as a matter of fact, differentiate a single, low BAC DUI from a single, four-times the legal limit high BAC DUI causing death. In fact, 2 DUI'S register as "recurrent," whereas a single DUI that kills a whole family does not. It's that simple, or at least it should be. This is the kind of stuff I have to deflect every day.

It seems to me, given that this affects exactly what will happen to you, your Lawyer should have expertise in this field. If not, then you have effectively surrendered control over your fate to non-experts "playing" in a field in which they have no credentials. You should not have to let someone without the requisite formal training in Substance Abuse issues decide whether or not you have, or are at risk to develop a drinking problem, and make determinations about what kind of help you do (or don't) need, yet the "system" is set up to do just that. I can help prevent that.

This problem is compounded because the Probation Officer who administers the alcohol-screening test and does the interview thinks he or she is an expert, despite the indisputable FACT that their experience with alcohol issues is limited exclusively to Criminal and DUI cases. This gives them a Criminal, and not a clinical perspective. On the one hand, while Probation Officers really have no business taking anything except a Criminal perspective, the fact that the Courts delegate the responsibility for alcohol screening to them requires them to at least "play" clinician.

Continue reading "Avoiding the big risk in a Detroit-area DUI case - Part 2" »

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March 1, 2013

Avoiding the big risk in a Detroit-area DUI case - Part 1

The real risk in a 1st Offense Drunk Driving case is that a person has (or the Court, at least, concludes a person has) a drinking problem that is finally interfering with normal life functions, like driving. From the point of view of a Judge, and therefore extremely relevant to what I do every day as a Michigan DUI Lawyer, every single 1st Offense DUI is either a one-shot, out-of-character incident for someone, or it's just the first of more to come. When you think about it for a moment, that concern is relevant to every DUI case that has ever been brought. To put it another way, every single person facing a 2nd or 3rd DUI charge had to have had a 1st Offense, as well.

It goes without saying that absolutely everyone ever Arrested for a 1st DUI says, "it won't happen again." Moreover, absolutely everyone who says that means it at the time they say it. Do you really think there's anyone who ever really intended to get Arrested for another DUI? Of course not! Therefore, the measurement of the likelihood that a person will be a repeat Offender, or not, has nothing to do with how much they insist, "It won't happen again."

gamblingwiththedevil 1.2.gifThe most effective (and perhaps only) way to measure the risk that a person will pick up another DUI is to assess their relationship to alcohol. Part of the whole problem with DUI cases is that, by far, most people who face this charge are not "Criminals." My Practice is a good example. I am a higher-end DUI Lawyer; I don't compete with the "lowball" cut-rate Lawyers, and I offer a degree of service they don't even know exists. Accordingly, my Clients are far more "high end" people. I represent Professionals in all fields, and absolutely none of my DUI Clients is a risk to commit something like an armed robbery, an assault, or to steal a car. My Clients may technically be facing a Criminal charge, but they are not Criminals.

We all know, or should know, at least, that one's status as being a law-abiding, taxpaying citizen is not exempt from the reaches of a drinking problem, and the incidence of problematic drinking amongst those people ever Arrested for Drunk Driving is statistically MUCH higher than it is for the population at large. This explains why, depending on the Court system in which your case is pending, you might be required to "test" for alcohol to enforce a "no drinking" condition of your Bond, or release from Jail. Unlike crimes driven by drug addiction, poverty of other types of desperation, Drunk Driving cuts evenly across the most highly-educated and high-income brackets. In fact, you can't be that destitute in the first place to have access to a car....

This means that a sitting Judge has to look past the SES (socio-economic status) of anyone facing a DUI, and really doesn't have to waste much time determining if a person is a "Criminal" or not. Whether the person before them earns their living digging ditches or doing heart-bypass surgery, the first concern of the Court is whether this 1st DUI represents a truly isolated incident, or is just the proverbial "tip of the iceberg." And given society's growing (if not media-fed) preoccupation with Drunk Driving, and the fact that being a Judge who is known as "tough" on Drunk Driving presents NO problem at election time (who'd vote for the candidate that's "easy," or "lenient," or "not as tough as the other guy" on DUI Drivers?), we've produced a recipe that sets anyone facing a DUI charge up for a trip through the meat grinder.

In a perfect world, the determination that a person either does or does not present a risk for a drinking problem would be made by someone with actual credentials to do that, like a bona-fide Substance Abuse Counselor. In the real world, a Probation Officer from the Court makes that determination. The Probation Officer is tasked with administering (and scoring) a legally required written test, called an alcohol assessment. Leaving this to a Probation Officer is not a good idea, and I'll address it in full detail sometime soon in another article. For now, I can at least identify a few valid concerns about having a Probation Officer do a Substance Abuse Counselor's work.

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February 25, 2013

The Cerebral Michigan DUI Client

This article has been a long time in the making. One of the delights that I have as a Michigan DUI Lawyer Practicing in the Detroit-area is that most of my Clients find me as a result of doing their homework. I write extensively about how the DUI process moves along, how evidence is collected and evaluated, and how the Court system focuses the person's relationship to alcohol, to the point really, of separating the person from alcohol, at least while they're under the Court's jurisdiction. My Clients are readers. They respond to analysis, and often have thoughtful questions beyond "what's going to happen...?" To put it another way, I try and appeal to those for whom thinking is an asset.

The end result is, rather candidly, that I have a better class of Clients than many of my peers. And while that means things go well when I have a "thinking Client," it also means that my approach does NOT mesh particularly well with those who don't want to do any thinking, or don't often do much thinking, or otherwise just want to hand the keys over to some Lawyer and let him or her take care of everything. That may work if you hire an interior designer, or take your car to the mechanic and just say, "fix it," but in order to produce the best outcome in a DUI case, such a mindset is, at least to me, a pure liability.

einstein 1.2.jpgIf you are to facing a DUI charge and are lucky enough that there is some problem with evidence in the case, or how it was collected, then they "fix it" kind of Lawyer won't be a problem. Most people aren't so lucky, however. Consider this cold, hard fact: In 2011, there were 54,291 alcohol and Drug-Driving charges brought in Michigan. Of those, only 95 were beaten at Trial. Do that math. That's .17 %. That's LESS than two-tenths of one percent. If you're going to hire a DUI Lawyer and that's your plan, well, good luck with that.

If you have enough cerebral horsepower to contemplate another possible result in your case, then you're going to need a Lawyer who can help minimize the consequences. That's a rather broad statement, so we need to put some meaning to "minimize the consequences." Beyond just making things better, minimizing consequences means actually having a positive impact on crucial aspects of the case that will directly affect what happens to you.

In that sense, it means seeing if there is a way to force the Prosecutor's hand to drop the alcohol-related charge to a much less serious, non-alcohol related offense. If not that, then it can mean reducing the original OWI charge to something far more benign. Whatever happens there, it almost always means dealing with an alcohol assessment. This is a part of every DUI case that is required by Law. Prior to being Sentenced in any DUI case, a person has to undergo a mandatory alcohol assessment test. This is handled, in every Macomb, Oakland and Wayne County Court, by the Probation Department. The test itself is a written instrument theoretically designed to fix a person's place on an alcohol use continuum from normal, non-problematic drinker to problem drinker right up to late stage, chronic alcohol dependence. Doing well or poorly here will affect what actually happens to you more than anything else.

The alcohol assessment test is administered by a Probation Officer, who then "scores" it, and comes up with what essentially amounts to a diagnosis by fixing the person's place on that alcohol-use continuum. The problem is that someone can only really make a "proper" diagnosis if they have formal training (usually noted by the CAC, CAAC or similar credentials) in the alcohol and addiction Counseling field. Here's where I can help a lot more than any other Lawyer; I study this stuff. And I don't mean that I have read a few books on the subject, either. I am enrolled in the formal, post-graduate University level study of this subject. This has been a passion of mine for a long time (and before you even roll your eyes, don't you hope your Dentist is interested in things like permanent adhesives, enamel and filling materials?). It relates directly to what I do every day as a DUI Lawyer and a Driver's License Restoration Lawyer, where a person's use of and relationship to alcohol is the focal point of the case.

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February 18, 2013

What do you want to Happen in your Detroit-Area DUI case?

With more than 22 years of handling DUI cases in Macomb, Oakland and Wayne Counties under my belt, I know pretty much how a DUI case is likely to play out as soon as I've seen all the evidence. When a Client hires me after having been Arrested for a Drunk Driving charge, particularly when there is an accident involved, or they wound up in a ditch, it doesn't take a rocket scientist to figure out the case isn't likely to just go away. Some people will waste piles of money chasing false hopes and betting on legal strategies and tactics that only work out on paper, but never in real life. Unfortunately, there are enough Lawyers hungry for work to feed into those dreams, and they make a lot of money while doing it. But let's not let Lawyers be the only ones dumped on here; there are as many plastic surgeons out there raking in the cash by doing various injections and procedures with the promise of making everyone beautiful.

Let's face facts; if you're grossly overweight and wrinkled and otherwise weren't born with movie star looks, a brow lift and some liposuction isn't going to make you one of People Magazine's "50 Most Beautiful People." Yet hopefuls line up everyday to buy into what they want to see, rather than seeing the truth. Ditto for DUI cases. People will pay endless amounts of money to buy into the hope that their case is somehow going to be magically dismissed when there is about zero chance that it actually will.

 Cuffs 1.4.jpgTo be clear, I get cases "knocked out" all the time. But this can't happen in every case, nor does it happen just because you really want it to. If you're in the ditch, and the Police have to wake you up while you're sleeping behind the wheel, it's probably not a wise decision to spend your hard-earned money trying to beat that kind of case, unless there is an honest problem with the breath or blood test. Naturally, everyone hopes to have their case "knocked out," in the same way that everyone wants to be a millionaire, or wants to be beautiful and famous and special. Just wanting something doesn't make it happen, though.

Looking for a DUI Lawyer is a lot like looking for a job. You have to define what you're really looking for, and what you'll be happy with. In the world of DUI cases, a person is going to have to temper what they want with a healthy dose of reality. You need to do some homework. There isn't one Lawyer out there who is the right Lawyer for everyone. Representing a person involves (or at least should involve) heavy-duty communications and, at least for a time, a close working relationship.

Consider the relationship between a Patient and his or her Heart Surgeon; there is little to no emphasis on communication or a working relationship, precisely because there doesn't need to be. If you're the patient, you're draped on the operating table so the Doctor only sees the area he's working on (ever wonder why they do that? Now you know...) and doesn't get caught up in anything but the mechanical, technical aspect of the task to be accomplished. It does no good to have the Surgeon see that the patient is young or old, male or female; it's a chest cavity that needs to be opened and a heart that needs to be fixed. If your Surgeon is a nice person, all the better. If he is a jerk, but saves your life, it couldn't matter less, really. It's not like you have to have long, deep conversations with your Heart Surgeon, or agree on a strategy other than "fix it and sew me back up."

It's nearly the opposite in a Lawyer-Client relationship. If there is any hesitation to communicate fully or clearly on either side, then things only go downhill from there. Very often, this is more the Lawyer's fault rather than the Client's. Particularly in the case of younger, or inexperienced Lawyers, there is a reticence to dash the Client's hopes, and a feeling of not wanting to disappoint the Client, or, worse yet, lose the Client by telling them something they don't want to hear. Yet that is only a recipe for more disappointment, down the road. If you're facing a DUI, you need to be rather honest with yourself to help you find the right Lawyer:

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February 8, 2013

Michigan DUI - Location Matters

As a DUI Lawyer who handles Drunk Driving cases exclusively in the Courts of Macomb, Oakland and Wayne Counties, I have extensive experience in a limited number of Courts. This is an asset, in the same way that a Cardiac Surgeon has extensive surgical experience on a limited part of the human body. It is because of that repeat experience in the same Courts that I can explain, with a high degree of accuracy, what is going to happen in any given case.

Inherent in this is the fact that every Court is different. But there's more than just that; things can play out very differently in the same Court depending on to which Judge a DUI case is assigned . In the 47th District Court in Farmington Hills, for example, Judge Marla Parker runs a Sobriety Court, while her counterpart, Judge James Brady, does not. Judge Brady will not transfer cases to Judge Parker. This means if you have a 2nd Offense DUI in the 47th District Court, the ability to get into Sobriety Court and keep your Driver's License depends entirely on the Judge to whom your case is assigned.

location 1.2.jpgThis is a bit of an extreme example, but it serves to underscore the larger point that where a DUI case is pending is one of the most important factors affecting it. In fact, with the exception of legal issues related to the admissibility of the evidence, the location of a DUI is the single most determinant of how things will play out. To that end, unless a DUI charge is "knocked out" somehow, what will happen to you depends in very large part on where your charge is brought.

I'm sure these local differences are the same all over the state, but my experience is limited to the Tri-County area of Metro-Detroit. If you have a DUI pending in any Macomb County, Oakland County or Wayne County Court, then you probably already know, or will soon enough, at least, that there are some rather stark differences between them. Once a DUI Arrest has taken place, it's obviously too late to do anything about that. Besides, no one ever plans on getting a DUI. It's not like someone is thinking about going out to pick up a Drunk Driving charge in one County, but not in another. In a very real way, a DUI charge is always an accident of geography.

That said, if you're going to have this kind of "accident", you'll fare much better if it's in a city in Macomb or Wayne County. If you check around even the slightest bit, you'll find that Oakland County is just much "tougher," in multiple ways, than either Macomb or Wayne County in DUI cases. Yet even within Oakland, or any given County, for that matter, there are vast differences from Court to Court.

Macomb County Courts take a far more "real world" view of DUI cases. While no one would argue that anyplace is getting easier on DUI cases, the fact, and I do mean FACT, is that for all the increased penalties and money sanctions that have been poured over the whole DUI landscape over the past 2 decades, there has been no, as in ZERO appreciable decrease in DUI's. Additional License penalties and more expensive fees, fines and costs don't have the effect of preventing or deterring DUI's, they just make life more difficult for those people who make a mistake and get caught driving after having had a few too many.

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February 1, 2013

DUI Breathalyzer Refusal - Avoiding a Suspended License

If you are facing a Suspended License for having refused to take the Breathalyzer test as part of a DUI Arrest, I can get you back on the road. Beyond all the considerations involved in how and why a person receives an "Officers Report of Refusal to Submit to a Chemical Test," the bottom line is that some people wind up facing some form of a "breathalyzer refusal." This is the more serious refusal to take a breath test at the Police Station. Unlike the refusal to take a Preliminary Breath Test (PBT), which can only result in a Civil Infraction, a real Breathalyzer Refusal is written up on a person's Michigan Temporary Driving Permit as "Officer's Report of Refusal to Submit to Chemical Test."

If you have received this, you have 14 days to request a Hearing before the Secretary of State' Driver Assessment and Appeal Division (instructions are on the back side of your Temporary Driving Permit) or else your License will be Suspended for a year. If the 14 days have passed, your License will be (or may have already been) Suspended for a year. In the real world, this generally only matters in 1st Offense cases. If a person is facing a 2nd Offense within 7 years, or a 3rd within 10 years, unless they beat the whole DUI charge, their License will be Revoked, anyway, so "fighting" this really amounts to little more than a short delay of the inevitable.

Coprbeath 2.1.jpgIt goes without saying that, in cases where the 14 days haven't yet passed, I look these over rather carefully to make sure the refusal can "stick." Sometimes, it is worthwhile for me to be retained to show up and contest a refusal. Most of the time, however, it's a waste of money, and unless there is information to be gained through the cross examination of the Police Officer that may prove useful in the underlying DUI case, this can serve as a textbook example of throwing good money after bad.

If the DUI case appears solid and there is really no basis to challenge the refusal, I'll simply tell my Client to show up for the Hearing at the Secretary of State Branch Office on the off chance that the Officer does not, in which case the whole thing is dismissed and the person's License is secure. If the Officer does show, and unless I have determined that there is a real problem in the case, the outcome is pretty much predetermined.

Remember, the vast majority of refusals are upheld because, in the vast majority of cases, there is no adequate legal excuse for failing to take the test, as required by law. This is part of Michigan's implied consent law, and the requirement that a person submit to a chemical breath test is set in stone. The ONLY way to win one of these cases is to prevail on one of the 4 issues set forth on the reverse side of the Officer's Report form. Not to be funny about it, but in answer to a question I'm asked often enough, being drunk doesn't count as an excuse.

Let's skip forward - unless you win at the Secretary of State (and really, good luck with that), you're going to need to get your License back, and I can do that. I can take the matter to Court and have a Judge override your Suspension and get you back on the road. This is true whether you did nothing, and just let the state Suspend your License, or you went to a Secretary of State Hearing and lost. Either way, I can undo the Suspension of your License...

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January 25, 2013

Michigan Criminal and DUI Lawyer Protects you and your Interests

This article will be about how I really help my Clients not get pounded in a Detroit-area DUI or Criminal case. Sometimes, tired and old worn-out phrases can really get on your nerves and become meaningless to the point that you roll your eyes when you hear them. Around election time last year, when the TV was filled with political ads, I heard enough baloney to the point that I was nauseated. Every politician wanted to protect me, my family, and my rights, even though I'd never heard of them before and haven't heard a thing from them since. I can only wonder what they're doing right now to help protect me...

The same thing, I'm afraid, holds true when Lawyer's talk about "protecting your rights." That's not to say most Lawyers don't actually do that, or at least try to, but the fact of the matter is, if you are facing a DUI or Suspended License or Marijuana case (or any other Criminal charge, for that matter), and you wind up getting hammered with all kinds of classes and counseling and testing and everything else, you won't feel that you had been very "protected."

security-guard-picture 1.2.pngThe first thing to do here is to sort out the difference between protecting your rights and protecting you. "Protecting your rights" is pretty much just a slogan. Think about your rights for a moment. No one is out to steal them. Once in a while the Police act in a way that violates certain of your rights, but by time you ever call a Lawyer about it, it's too late. Consider the right against unlawful search and seizure. Assume the Police conducted an illegal search of Dan the Driver's vehicle and found marijuana. Dan gets charged with a DUI and Possession of Marijuana. He hires Larry the Lawyer to defend him. Both Dan and Larry are angry over the violation of Dan's rights...

Big whoop. Unless Larry can turn back the hands of time, there is no way to "protect" Dan's rights; they've already been violated. Of course, Larry can challenge the admissibility of the evidence, and protect Dan from being convicted as a result of an unlawful search and seizure, but in terms of protecting Dan's rights, it's too late for that.

My point is that it becomes my job to protect my Client. Instead of talking about "rights," we should be talking about "interests." A person can wind up pleading straight up guilty to a charge of Operating While Intoxicated (OWI, or what is commonly called a DUI), and can get slammed with Probation from Hell all the while having some Lawyer make sure none of their rights were violated. Can you imagine a Lawyer, when it comes time to address the Court at Sentencing, saying to the Judge "Your Honor, I am here to make sure that none of my Client's rights are violated"? What could be more meaningless than that?

It's far more important to address the Judge and make sure I get every break in the book for my Client. I need to make every part of the Sentence as easy and lenient as possible. Success in any case is generally measured by what happens to you, and, in the same sense, by what doesn't. Keeping my Client's out of Jail is part of protecting their interests, but it doesn't stop there.

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January 21, 2013

Alcohol Testing Violations in Michigan DUI Cases

In the prevous article, we looked at how alcohol testing as a condition of release from Jail after a DUI Arrest is becoming common in the Courts of Macomb, Oakland and Wayne Counties. Of course, this is done to ensure (or, some might say, force) compliance with a "no drinking" condition of a person's Bond. Testing does not stop once the case draws to a close, however. Testing is very often ordered as a condition of Probation, as well. In fact, if you are required to test as a condition of Bond, you can pretty much count on being required to test through Probation, as well, although there is room to have the Judge make some changes to that, including cutting down the frequency with which you test.

Alcohol testing comes in several different varieties, but the most popular are breath tests (either through PBT's at a testing site, or samples blown into an ignition interlock system), urine tests, and a contraption called a S.C.R.A.M. tether. In general, testing is a lot like voice recognition software; it usually gets things mostly right, but often gets things wrong, and is never perfect. Unlike giving voice commands to your smart-phone, however, and winding up calling the wrong number, a bad alcohol test result can get you thrown in Jail.

Lab Testing 1.3.jpgAs a Michigan DUI Lawyer, I am contacted almost daily about problems with alcohol testing. I get calls about missed tests, bad equipment and positive tests. To be clear, many times the positive (or missed) test means that the person tested was, in fact, drinking, but even then, they need someone to get them out of a jam. Whether it's a false positive, an accurate positive, a missed test, or trouble with the equipment, alcohol testing brings lots of problems, and I have to solve them.

I am hired just about every week by someone who has run into problems with their alcohol testing. These "problems" are either alleged violations of Bond or Probation conditions. To help a Client facing an alcohol testing violation, I have to wear several hats: I have to be a Lawyer, of course, but I also have to have a working scientific and technical knowledge of what's involved in a particular kind of testing, and what can affect the results. This involves knowing, for example, how certain chemicals or medical conditions affect a person's performance on a particular a test, or why a false positive result occurs.

Beyond that, I have to be able to define the issue at hand (meaning bad equipment, bad result, or bad test) and then translate it to the Judge. Doing that means I need to be a diplomat and a negotiator. There are times when a Judge is going to get it wrong, and when I see that coming, I have know how to react to protect my Client. If a Judge refuses to accept that a test result is wrong, then that part of me with "diplomatic" skills won't press on in a way to make the Judge angry. In a Courtroom, I have to argue my case, but never argue with the Judge. Remember, the job at hand is to make things better; however wrong the Judge might be, arguing with him or her will only make things worse.

This is particularly true if the violation is for a positive test result that is accurate, meaning that someone tests positive for alcohol because they really did drink. This happens a lot, and, truth be told, "correct positive" results are a lot more common than "false positives." An accurate positive test result occurs because no one thinks they'll get caught. Either they try and "time" their drinking, or they take a chance that they won't be called in for a test on a certain day, only to find out they called it wrong. In these cases, my whole focus is on damage control. Let's be honest, when anyone in this situation calls me, they have one thing on their mind - staying out of Jail. Unless I get lucky, and find some glaring evidentiary defect in the test (not likely), I'm going to be the only thing that stands between my Client and a stint in the pokey. I need to find the magic spot in such a mess and use it to keep my Client from getting locked up.

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January 18, 2013

Michigan DUI - Alcohol Testing as a Condition of Bond/Release in the Metro-Detroit area

If you are facing a DUI in almost any Oakland County District Court, or a growing number of Macomb or Wayne County District Courts, there is a good chance that, as a condition of your release from Jail after your Arrest, you are required to submit to some form of alcohol testing. No one likes this, as it places a huge burden on the person having to test. It is costly, and always inconvenient. Worse yet, the results are sometimes wrong, tossing innocent people into hot water for "false positives." By the same token, the presumption that a missed test would have produced a positive result can be a nightmare for those who have a legitimate excuse for not being able to make it to a scheduled test.

While it has always been my intent to publish blog articles that are more factual and informative than opinionated, I can feel my blood pressure rising as I begin to broach this topic, and sense that my rather strong feelings about alcohol testing in general, and Pre-Trial alcohol testing in particular, will spill out into this article. I hope the reader will agree with my position, although I doubt that anyone who is under Orders to test is happy about it in the first place, and I might just be "preaching to the choir."

alcohol-test 1.3.jpgI began Practicing Law in 1990. Back then, although DUI's were already considered serious, the societal shift against Drunk Driving was just getting underway, and the impact of things like Mothers Against Drunk Driving (MADD) was just beginning. In the early 90's, a person dealing with the fallout of a 1st Offense DUI would most likely have been Sentenced by the Judge to simply NOT consume ANY alcohol and drive a motor vehicle while on Probation. In other words, the terms of Probation back then allowed a person to have a glass of wine with dinner; they just could not drink and drive. There was no such thing as any kind of "alcohol-testing" until after a person was put on Probation, and even then it was only done on an infrequent and random basis.

Everything changes, though. Soon enough, Judges began Ordering that a person not drink at all while on Probation. To back that up, they'd order "random" PBT's (Portable Breath Tests). Thus, a person on Probation could be called at any time and required to come to the Probation Office and provide a breath sample. But the momentum of the MADD and other anti-alcohol advocates had just begun. (In fact, MADD has transitioned so far away from its original mission that its founder resigned, noting that the group had adopted a message of abstinence and temperance, and had gone way above and beyond just preventing people from driving drunk). The Court system has followed MADD, however, and seems intent on doing far more than just stopping drunk driving. While it makes sense that you can limit drunk driving by simple preventing people from drinking, you could also reduce theft crimes by cutting off everyone's hands at birth...

Then, one day in the not too distant past, some Judge got the idea that it wasn't good enough to just require DUI Driver's to not drink while on Probation. By some jump of logic, an idea was born that things would be better if anyone Arrested for DUI was not only forbidden from drinking anything at all, but that they should have to prove their compliance with that requirement by testing regularly. From this questionable logic we now have an entire testing industry in place to ensure compliance, and the list of Courts that DON'T require such testing is shrinking faster than the Lance Armstrong fan club.

That's where we find ourselves today. I'll skip over the arguments about rights and freedoms and Judicial activism; they all have some merit. There is one theme, however, that comes up again and again whenever the subject of alcohol testing as a condition of Bond is raised, and that's the concept of "innocent until proven guilty." Unfortunately, this notion has to be explained away as legally unfounded, especially when it comes to setting conditions of release after Arrest. This means that there is no actual presumption of innocence, at least as most people think they know it. As we'll see, this means that the alcohol testing as a condition of release is on solid legal ground, however much we don't like it.

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December 14, 2012

Michigan DUI Driver's License Penalties

As a Michigan DUI Lawyer, just about everyday I am asked, "What will happen to my License?" This article will detail what happens in the most common DUI situations. There will always be someone whose circumstance is bizarrely complicated and involves unusual facts, but this article isn't for them. Those people will have to sort things out with their Lawyer. For the most part, however, most questions about what happens to a License in a DUI case will be answered in the following paragraphs.

Before we can even begin to know what will happen to your License, we must first establish if you're being charged as a 1st, 2nd or 3rd Offender. Obviously, if you've never had a prior Drunk Driving conviction before, then you're a first Offender. However, if you have had a DUI in the past, then when it (or they, if you've had more than 1) occurred matters a lot. What makes a case a First, Second or Third Offense is the number or prior convictions a person has within a certain number of years. Let's look at each:

SOS seal 1.2.pngFirst Offenses

"First Offense" means a person does not have a prior DUI conviction within 7 years of the Arrest for the new charge. To be clear, the time period for a "prior" starts running from the date a person was convicted of their last DUI (meaning the date from which they took a plea or were found guilty, and not the date of their last Arrest or anything like that) and covers the date of the Arrest for the new case.

There are 3 kinds of First Offense charges:

1. "OWI," or Operating While Intoxicated. This is the most common DUI charge. If you are ultimately convicted of First Offense OWI, your Driver's License will be Suspended for 180 days (6 months) and you will not be allowed to drive at all for the first 30 days, and will then have a Restricted License for the remaining 150 days (5 months). I will explain exactly what a "Restricted License" means later in this article.

2. "High BAC," sometimes called "Superdrunk" or "Enhanced" OWI. This is the "Big Daddy" of all First Offenses, and can be made when your BAC (Bodily Alcohol Content as measured from a breath or blood test is .17 or above). You cannot be charged with "High BAC" except in a First Offense case. If you are convicted of a "High BAC" charge, your License will be Suspended for 365 days (12 months) and you will not be allowed to drive at all for the first 45 days, an then may be allowed a Restricted License for the next 320 days (10 and ½ months) with, and only with an ignition interlock (a kind of breathalyzer unit) installed in your car.

3. "Impaired Driving," or OWVI. This is the "Lesser Offense" that's the least serious of all. If you are convicted of "Impaired Driving," you will be give a Restricted License for 90 days, after which you may then get your Full License back.

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December 10, 2012

Finding the Right DUI Lawyer in Michigan

As a Michigan DUI Lawyer, I know the role I play, and the role I am supposed to play in helping a person get past a DUI charge. A DUI Lawyer is hired to make things "better." As you look for a DUI Lawyer, it is important to first define your needs and wants, and then try to find the Lawyer that best matches them. To do that, it would certainly be helpful to first establish a couple of parameters to help narrow your search. Of course, I am in the business of defending DUI cases, but after more than 2 decades of doing it, I have the good fortune of not needing the business so bad that I have to try and be all things to all people. Instead, I can clearly define my place in the world of DUI Lawyers so that I match up with the right Clients.

First, the term "DUI Lawyer" is rather significant. I define myself as a "DUI Lawyer." There is an appreciable difference between a Lawyer who "does" DUI cases and one, like me, who concentrates in them. A general Criminal Lawyer may handle a few DUI cases per month. A DUI Lawyer often handles several Drunk Driving cases in a single day, every day of the week.

Lawyer Guy 1.3.jpgSecond, where a Lawyer practices matters. If you're hiring a DUI Lawyer with the hope that he or she can make things better, your chances improve if the Lawyer you hire has experience in the particular Court where your case is pending. Every Court does things its own way, and very often, different Judges in the same Court do things differently, as well. Repeat experience in the same Courts allows the Lawyer to be able to explain how things are going to play out, as well as how they are likely to turn out in your case. In addition, having enough experience with the Judge deciding your case allows the Lawyer to know what kinds of things to do and, perhaps equally as important, what not to do. There is little point in going all out and signing up for Counseling, or starting to go to AA, only to find out you wasted your time, and that the Judge couldn't care less. You'll only know these things by hiring a Lawyer who knows your Judge from past experience with him or her. For my part, I limit my DUI Practice to the Courts in Macomb, Oakland and Wayne Counties.

Therefore, as a general guide, a person facing a DUI should be looking to hire a DUI Lawyer (as opposed to a Lawyer who merely "does" DUI cases) who has had regular experience in the Court where the case is, or will be pending.

Even among DUI Lawyers, there are vast differences in personality and strategy. I think that the personality aspect is the more important of the two, because if you hire a Lawyer with an "I'm the boss, and this is how we'll do it," personality, you'll never even have a chance to discuss strategy, or get meaningful answers to your questions. There is no "right" personality for a Lawyer to have, although I'd argue that there is certainly no shortage of those that are "wrong." There is little need to describe that kind of person; they are usually abrasive or rude. Then again, and not to be funny about it, that kind of personality may work for some people. You'll know who's wrong for you right away.

I'm rather the opposite of that; I'm a talker. I examine and explain things. I'm friendly and conversant. No one could ever describe me as a man of few words. I've written loads of articles about DUI cases, and I write just like I speak. This means, of course, that I won't particularly match up well with someone who wants a Lawyer who is the "strong, silent type." When a person hires me for a DUI, our first meeting usually lasts about 2 hours. I'm certainly not the Lawyer for someone looking to be in and out of the Attorney's Office in 30 minutes or less

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December 3, 2012

DUI 2nd and 3rd Offense and the Real Focus - Alcohol

In a recent article, I pointed out that the ultimate focus in any DUI case that doesn't get dismissed for some defect in or lack of evidence is about the Driver's relationship to alcohol. To anyone facing a 2nd or 3rd Offense DUI, this is obvious on several levels. This article will continue that discussion as it relates to anyone who has already had a DUI, and should prove equally informative to anyone who has never been through anything like this.

There is a good chance that if you have been Arrested for a 2nd or 3rd DUI, you are required to submit to some kind of alcohol (and often) drug testing as a condition of your Bond, or release. So much for the presumption of innocence, then...

Alcohol Rope 1.2.pngIn the real world, especially as it relates to DUI cases, the Court system struggles to even pay lip service to the presumption of innocence. Remember, the purpose of Bond, in the first place, is to make sure you show up in Court and don't just run away. Bond, in that sense, is like a kind of "deposit." How does any kind of alcohol testing help insure (or not) that a person will show up for Court? The fact is, this kind of testing has NOTHING to do with insuring a person shows up to Court, and has EVERYTHING to do with the undisputed, if unspoken, belief that a person charged with a DUI is guilty.

There is a reason for this belief, however. It's not that Judges just pick this stuff out of the sky. In the course of their various careers, most Judges will handle thousands, if not tens of thousands, of DUI cases. By contrast, those same Judges will ever only wind up dismissing a mere handful of DUI cases, if they ever dismiss any, in all those years on the Bench. When a case is "knocked out," it's almost always because of some technical defect or shortcoming in the evidence. Very often, the problem lies with how the evidence was collected or tested, meaning there is some question as to the scientific, and therefore legal reliability of the evidence. Very seldom does anyone go to Trial in a DUI case and prove they were Sober.

The bottom line, at least to a Judge who sees thousands upon thousands of DUI cases, is that practically no one comes into Court charged with a DUI who hadn't been drinking, and had a few too many. Once in a while I'll get a DUI case where the Police failed to obtain breath or blood evidence, but that's a lot different than arguing that someone with a .12 (one and a half times the legal limit) or even higher breath test wasn't really over the limit.

If we're going to be really blunt about it, then, that means that when Dan the Driver goes to Court after having been Arrested for DUI, and having blown a .12 (or higher), the Judge isn't really thinking "Well, Dan is presumed innocent, so his breath test of .12 means nothing at this point. I wonder if the prosecutor will be able to prove Dan really was driving while intoxicated?" Instead, the Judge might figure that maybe, if Dan gets a really good Lawyer, and catches a lucky break, there might be some technical hiccup with the evidence and with a slick legal maneuver, Dan might be able to wiggle out of the charge.

In other words, Judges don't really question that people charged with DUI have been drinking. Or driving. If you're reading this, and you are required to test, there isn't much more to say. If you have been through a DUI before, then you know what comes next...

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November 30, 2012

DUI in Oakland County

If you're facing a DUI charge in any of the District Courts of Oakland County (Berkley, Bloomfield Hills, Clarkston, Farmington Hills, Ferndale, Hazel Park, Madison Heights, Novi, Oak Park, Plymouth (covering Northville), Rochester, Royal Oak, Southfield, Troy or Pontiac), or are facing a 3rd Offense Felony DUI charge in Oakland County, you need a DUI Lawyer who can make things better for you. That begins with hiring a Lawyer who is thoroughly familiar with the Court where your case is pending. "Thoroughly," in that sense, means being a "regular" there. It means knowing how things work in that Court based on accumulated experience.

I've been handling DUI cases for over 22 years. In the last decade or so, I've really concentrated my DUI Practice, meaning I have restricted the Courts in which I practice, to Macomb, Oakland and Wayne Counties. This kind of "specialization" allows me to explain to my Client what will happen and what won't happen in their case. I know how each Court differs from another, and how the various Judges are alike, as well as how they are different. That translates to knowing exactly how to do things, and, by the same token, knowing what not to do. Whatever else, pitching an argument to a Judge who has a standing position against what you're your requesting is not only a losing proposition, it has the potential to make things worse. On the other hand, NOT asking a Judge for a break that he or she would actually consider is a total waste - and a painful amateur mistake.

Oakland 1.2.pngDUI cases
are, more than anything else, accidents of geography. A person can be pulled over in front of their own house, or hundreds of miles from home. I've always had a few cases going where my Client has gotten lost, and winds up being pulled over in a jurisdiction totally out of the way from where they were drinking, and from where they live. One wrong turn on I-696 and a person can spend 20 minutes driving the wrong way.

However it happens, each and every week, a whole lot of people get busted for a DUI in some city in Oakland County. Beyond just looking for a "DUI Lawyer," it's a good idea to look for a Lawyer from the Tri-County area, and one who consistently and regularly practices in the Court in which your case will be heard. To put it another way, it's probably not a good idea for your Lawyer to be meeting the Judge for the first time as he or she walks in on your case.

The Courts of Oakland County are very different from those in Macomb and Wayne Counties, especially when it comes to charges of OWI (Operation While Intoxicated) and High BAC, the actual names for what we commonly call "DUI." In fact, if you're facing a DUI and you haven't already heard or read that Oakland County is "tougher," then you haven't checked around very much. What really, then, does "tougher" mean?

Beyond just being noticeably less forgiving and lenient in DUI cases, Oakland County has long led the way in the implementation of technological advances, and has long been more "progressive" in its approach to DUI cases. "Progressive," in that sense means "rehabilitative." Oakland County Courts were regularly requiring breath or urine testing as a condition of Bond (or release from Jail) in DUI cases long before many of the Courts in Macomb and Wayne Counties had even tried it.

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November 23, 2012

The Real Focus of a Michigan DUI Case - Part 2

In Part 1 of this article, we observed that, in reality, most DUI cases don't get thrown out of Court by a Judge. We then saw how important a role "alcohol," meaning a person's relationship with it, plays in the course of any DUI case that's not summarily tossed out of Court by the Judge. We concluded and underscored this by pointing out the fundamental role of "testing" for alcohol while a person's Drunk Driving case is pending in Court, and the key role "testing" plays in any Probationary Sentence.

In this second installment, we'll continue our examination of the role of "alcohol" in a DUI case, and look at how my specialized knowledge of the onset, diagnosis, and treatment of an alcohol problem gives me unique advantage to help make things materially better for my DUI Clients.

Breathtester 1.2.jpgMany Judges in the Tri-County area will handle hundreds, if not more than a thousand DUI cases in a given year, yet most of those same Judges will only dismiss a few, if any during the course of their entire careers on the Bench. As we noted in the first part of this article, if a DUI case is solid enough to not get dismissed, then in a very real way, we can say that as it winds its way through the Court system it's all about the alcohol. If you're reading this, and you are on Bond, and required to "test" for alcohol, there's your proof.

This should not come a surprise. The Law requires anyone convicted of a DUI to undergo a mandatory alcohol assessment test before the Judge can Sentence him or her. A person must be screened to determine if they either have an alcohol problem, or the potential (or predisposition) for an alcohol problem. This "screening" is done in the form of a written test. The person's answers are scored, and the final score is compared to a scoring key, and a written Recommendation is made to the Judge as to what level of classes, counseling, education or rehabilitation they need.

There is a lot more to this, of course. In fact there's so much to it that not only is the development, diagnosis and treatment of an alcohol problem a keen field of interest of mine, I am actually involved in the formal University, graduate-level study of this very subject. If you are going to make a living in an area of the Law where the diagnosis and treatment of an alcohol problem is front and center stage, it makes sense to have credentials, education and experience in this field, as well.

Understanding how an alcohol problem is diagnosed, and the specific criteria used to make such a diagnosis, however, will remain centrally relevant throughout the rest of the case. As we'll see shortly, "over-diagnosis" of an alcohol problem, or the possibility that a person can or will develop one, is a huge problem with far-reaching, expensive consequences to someone dealing with a DUI charge. Being able to point out to the Judge when that happens, and being able to protect my Client from getting stuck in classes he or she doesn't need is critical to producing better results in DUI cases.

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November 19, 2012

The Real Focus of a Michigan DUI Case - Part 1

Many of my blog articles in any given week are the result of something that happened in the preceding few weeks. Recently, I had an experience while handling a DUI case in a local, Detroit-area Court that reminded me to always keep my eye on the "bigger picture." This article will focus on that "bigger picture" in a DUI case pending in Macomb, Oakland or Wayne County. Sometimes, we can lose sight of that bigger picture as we get caught up in all the details of something. Sometimes, in a DUI case, we can lose sight of the fact that the "bigger picture" is about alcohol.

As a Michigan DUI Lawyer, I spend a lot of my time examining evidence in Drunk Driving cases. This can range from visiting the scene of a DUI Arrest to watching the video of a DUI Traffic Stop, the Field Sobriety Tests and the "booking" video of a person being brought into the Police Station to be processed and take a Chemical Breath Test. No matter how "solid" a case may look, or feel, I have to examine it from every angle, and leave no stone unturned in my quest to find a problem with the evidence, or some other factor that will allow me to have the case dismissed, or knocked out somehow. Even when I don't find some "fatal" flaw with the evidence, I usually find something that I can use to drive a much better deal for my Client.

BlowTest 1.2.jpgIt goes without saying that you won't find something unless you look for it. Examining the evidence in a DUI case is a lot like digging for gold, in the sense that it takes a LOT of digging to find any gold. Statistically, it's not a very high percentage of DUI cases that wind up getting dismissed outright. Everyone has heard horror stories about how tough this or that Judge in the Detroit area is on DUI Drivers. By contrast, how many stories have you heard about a particular Judge known for throwing DUI charges out of Court? Can you imagine the political fallout for being the Judge who dismisses ANY appreciable number of DUI cases? Remember the recent election, and the ads accusing various Judges and candidates of being "easy" on some rapist, or other criminal?

Realistically, there is almost NO political downside to being the Judge who is too tough on Drunk Drivers. The opposite, however, is not true.

The point I'm driving at is that while I work hard to find a way to beat a DUI charge, it certainly does not happen in the majority of cases. And for all the wonderful sales pitches a person facing a DUI charge will hear as a potential customer of legal services, the simple fact is that most DUI charges are not thrown out, period. In fact, according the Michigan Secretary of State:

In 2010, 41,883 alcohol and drug-related driving arrests were made. Male drivers were three times as likely as female drivers to be arrested for impaired driving, with 31,021 men arrested compared to 10,862 women. There were 41,887 persons convicted of operating under the influence of liquor or other impaired driving offenses. Some of these convictions include arrests made in prior years.
Beyond all of the technical and legal considerations we toss around as we look for a defect in the evidence of a DUI charge, we sometimes overlook that those very rules and technicalities are in place to prevent an innocent person from being convicted of a crime they did not commit. At least in theory, the whole point of critically examining and challenging the evidence is to make sure a person who did not have too much to drink doesn't get convicted of a Drinking and Driving Offense.

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October 29, 2012

Michigan DUI and Police Video of the Traffic Stop

This article will explain why, as a Michigan DUI Lawyer, I almost always requisition a copy of the Police car video in a DUI case. The role of these "dash cam" videos has really evolved as the resolution of the cameras, and the quality of the videos they produce, has gotten better. While the real "role" of any Police care video has always been to document what happened, previous generations of cameras didn't do that nearly as well as the newer models. Advancing technology has led to the upgrading from low-res images to hi-res, almost high-definition footage that can, quite literally, speak for itself.

My Role as a DUI Lawyer is simple: I try to beat, or "knock out" a DUI charge whenever possible. That's like saying, however, that the GM simply makes cars. While that's essentially true, it also overlooks about a million little things that go into that. When there is an exploitable defect in, or question about the evidence, I will leverage that to the fullest extent possible. If the evidence is solid, then I will negotiate with the Prosecutor to reduce the charge or otherwise reach an agreement that will lessen the real-life consequences and make things better for you.

movie camera 1.2.gifAs much as a car is made up of parts, a DUI case is made up of evidence. Just like some parts of the car (engine and transmission, for example) are more important than others (like floor mats and radio knobs), some parts of the evidence (Traffic Stop, Field Sobriety Tests and Breath or Blood Test) are more important than others. Recent improvements in video quality have pushed the potential role of Police in-car video much higher up the ladder. As a result, I have now taken to obtaining a copy of such videos in just about every new DUI case that comes through my Office.

In the past, most in-car video cameras produced what can best be described as low resolution, grainy images. And if that wasn't bad enough, because most DUI's occur at night, the resulting video was low resolution, night-vision imagery. If you've ever seen an ultrasound picture taken from a pregnant woman, then you've seen low-res, low light imagery. I've always been amazed when an ultrasound technician can look at that tiny, grainy image, and identify the sex of the fetus. They can point to what they see as "evidence" of this or that gender all day long, but to me, it just looks mostly like a peanut inside a shell. My point, however, is that understanding what that image really shows requires some explanation or interpretation.

Similarly, I have sat in Court over the years and watched other Lawyers ask an Arresting Officer to explain what their old fashioned, low-resolution in-car video is really showing. Thankfully, I've seen this only as a spectator, and not a participant, because even from that perspective, I realized that, if a Lawyer must have the Officer explain the video, it almost certainly has no value for the Defense. Instead, it should be the Lawyer explaining the video to the Officer.

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October 12, 2012

Michigan DUI cases - The Instinct to make Things Better

I have written rather extensively about how a Michigan DUI case actually works, and about the steps involved. The various sections on the Drunk Driving section of my website provides a thorough overview of that process, and the numerous DUI articles on this blog combine to assemble a pretty comprehensive examination of all the details involved in defending someone against a DUI charge. This article will be very different. Although I want to continue to focus, in a general sense, on how DUI cases are handled, in this installment, I want to zero in on what is really one of the most important, yet least talked about aspects of being a Michigan DUI Lawyer; having a keen instinct about knowing what to do.

As a DUI Lawyer, I have certain, specialized knowledge. This becomes really clear if I have to explain something about DUI's to a Lawyer who works in a different field, like civil lawsuits. Beyond specialized knowledge, I have rather specialized experience. In my case, I limit my Drunk Driving Practice to Macomb, Oakland and Wayne Counties. I regularly appear in the same Courts. This means I really know how things work there.

Brain 1.2.jpgLast week, for example, as a result of knowing exactly how to do and schedule and maneuver things in each particular Court, after having "moved" a case around in just the right way for the last few months, I was able to get a DUI charge dismissed and spare my Client a Drunk Driving conviction. This was a direct result of just "knowing" how things work in that specific Court.

The recipe thus far, then, has 2 ingredients: Specialized knowledge coupled with repeat experience doing the same thing in the same places. If you think about it for a moment, however, it would seem that "repeat experience" should give rise to something more than just a lack of being surprised at what happens. It should mean that a person has developed an instinct, or a kind of "sense" about things. We rather take this for granted in a medical context, like when a Surgeon, talking about what may or may not happen in an upcoming procedure, says something like "I really won't know until I'm in there." We understand that to mean that, based upon a mountain of experience, he or she will just "know" what to do. We expect airline Pilots to "know" how to land a plane in windy conditions based upon their "instinct" and "feel."

"Instinct," in that sense, isn't anything learned in a book, nor obtained from studying. Beyond just repeat experience, "instinct" usually involves something a person is naturally good at. Consider this: I like bowling. I learned to bowl as a youngster, and even bowled in a youth league. I bowled a lot, and certainly learned the mechanics and rules of bowling early on. For some reason, however, I just never became very good at it. My high game (I think it was a 178) was lower than the "average" of many people I know. Thus, you could say that I "know" bowling, but I have no real instinct for it. In fact, I remember other bowlers talking about the lanes having been recently oiled, and how that would affect their "hooks," and how they'd have to bowl a few practice frames to get a "feel" for how to adjust their throws. For me, all that meant nothing.

Fortunately, I am a much better DUI Lawyer than I ever was a bowler. I sometimes wonder about that; am I a good DUI Lawyer because I like it, or do I like being a DUI Lawyer because I'm good at it? I think it's a little of both, and each feeds the other. This, of course, works distinctly to my Client's advantage, because it means that I just "know" when to hold out for things to get better, or when to move forward, because they won't.

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September 3, 2012

DUI 1st Offense in Michigan - Making Things Better in the Detroit-area

A 1st Offense DUI in is a very frightening thing to face. For most people, it represents their first (and hopefully only) Arrest. Being taken to Jail, and then released the next day, only to have go retrieve their car, and then try and find a Lawyer, brings with it a rush of unpleasant emotions. There really is no way to make those feelings disappear, but as a Michigan DUI Lawyer, I can certainly help make them better.

For over 22 years, I have helped good people move past this bad situation. I provide a level of services very different than those Lawyers pandering for Clients on a "low bidder" basis. Precisely because I don't run an assembly-line of high volume, low cost cases, I can take the time to address my Client's personal and emotional concerns about the Drunk Driving charge they're facing. As a result, they get things made a lot better than someone going the bargain Lawyer route.

Things will get better 1.2.jpgAnd if there's a point to this whole article, it's that things are not as bad as they might at first seem. No matter how bleak and uncertain things may look, a person can almost always get through this rather painlessly. If someone facing their first Offense is carefully and properly guided through the DUI process, and even if everything that can go wrong does go wrong, they can still emerge from it virtually unscathed. This is where I come in; this is my world.

It is my job, in a DUI case, to look for defects in the evidence that can potentially result in a dismissal of the charges. DUI cases don't dismiss themselves. Statistically speaking, most DUI cases don't get "knocked out" just because an astute Lawyer goes on the hunt for a problem with the evidence, or how it was gathered. Imagine a person being wheeled into the ER of some hospital with a gunshot wound to their chest, and the Doctor saying to their spouse, "Wow, this is unfortunate; about 85 to 90% of all people with a wound like that don't survive. Do you really want me to go through all the work of trying to save this person, anyway?"

Of course! No matter how slim the odds, a Doctor or a Lawyer has to do all in his or her power to produce the best outcome possible

Here's where DUI's are different: It is true that a Lawyer will not likely find some fatal defect to the extent that a Judge is going to pound the gavel and yell "Case dismissed!" in majority of cases. Yet by conducting a precisely that kind of microscopic inquiry looking for such defects, other, smaller issues can be found that can be used to the Client's advantage, such as driving a Plea Bargain to a reduced charge, or to setting up a Sentencing agreement for no Jail in a case where some Jail time might really be a possibility.

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August 27, 2012

Michigan 2nd Offense DUI and Driver's License Restoration

As a full time Michigan Driver's License Restoration and DUI Lawyer, I deal with the implications of a Second Offense Drunk Driving charge daily, and in different contexts, as well. As a Michigan DUI Lawyer, I am involved, nearly from the beginning of a 2nd Offense case, to guide my Client through the Court process. In that role, my job is to take a case and put it under the microscope and look for those flaws in the evidence that can be used to get the charge dismissed, or at least reduced. As a Driver's License Restoration Lawyer, I help explain how that 2nd DUI was often the catalyst for my Client to recognize that they had a drinking problem.

Attitude is important. A DUI Lawyer must go in to a case expecting to find some problem with the evidence, or how it was gathered, and not just wait for the obvious to jump out of the file. I often point out that DUI cases don't dismiss themselves. If you want to find a defect in the case, you have to look for it.

2nd 2.2.jpgThat said, by the time anyone is out of Jail and looking for a Lawyer, the facts of the case have been set in stone. What happened that resulted in the DUI Arrest happened; now, we're looking backwards in time to see if the legality of what happened holds up under the law.

The same thing holds true a few years later, after a person becomes eligible and ready to file a Michigan Driver's License Restoration Appeal. A person who has lost their License for multiple DUI's has, in the meantime, either gotten Sober, or not. When someone calls my Office about a License Appeal, and I ask about their Sobriety, they either have it, or they don't. These facts are also set in stone.

My differing roles as a Michigan DUI and Driver's License Restoration Lawyer requires me to have certain differences of personality, as well. As a DUI Lawyer, I am the Lawyer, first and foremost. In a certain sense, I am a hired gun. My first mission, once hired in a DUI case, is to find some way to beat the case, or at least do serous damage control. When I can exploit a flaw in the evidence, or the way it was gathered, and manage to get the case "knocked out," I do just that. I am hired, really, to make as much of a DUI go away as I can.

Yet there is a whole other side to this, and to me, as well. If a person picks up a 2nd DUI within 7 years, Michigan Law concludes that they are what's called a "habitual offender," and presumes that they have an alcohol problem. When that same person comes forward a year to two (or three of four, or even more) years later, to have their License Reinstated, the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) will require that the person prove, by "clear and convincing evidence," that their alcohol problem is "under control, and likely to remain under control." This means that I also have to work under the legal presumption that a person with a 2nd (or subsequent) DUI has an alcohol problem.

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August 20, 2012

Michigan DUI - Winning in a Detroit-area Court even when the Evidence is Solid

As a Michigan DUI Lawyer, I am in Court every day, often multiple times each day, handling DUI cases. Within the more than 90 Drunk Driving articles on this blog, I examine and explain the various aspects of the Michigan DUI process, and seldom waste space trumpeting my own successes. A recent case, however, gives me an opportunity to provide a very specific example of how some of the rather specialized and unique knowledge I possess (which I believe sets me apart from the general herd of other "DUI Lawyers") was used to produce a much better, real-life result in Court than would have been the case had a Lawyer other than me been standing next to my Client. The cold, hard truth is that if you want better results, you'll have to step up and hire better, and that applies to everything from Doctors and Lawyers to Carpenters and Painters.

Here's the basic setup to this story: I study alcohol problems and alcoholism. As part of that, I have an extensive background in the methods used to diagnose an alcohol problem. The established criteria for determining if someone is either an alcohol abuser or is alcohol dependent is set forth in what is known as the Diagnostic and Statistical Manual of Mental Disorders. Most commonly referred to as the DSM, the current edition is the fourth iteration, and is usually cited as the DSM-IV. I know this stuff. I study it, and use it everyday. Beyond just being a DUI Lawyer, I am a full time Michigan Driver's License Restoration Lawyer, and in that part of my Practice, the nuances of whether a Client is diagnosed as an alcohol abuser, or as alcohol dependent, is critical to my day-to-day work.

Win 1.4.gifWhile this is certainly not typical for a Lawyer, it has proven to be immensely helpful to me, and it sure helps my Clients.

The Client in the case at hand was facing a DUI charge in a local, Detroit-area Court. Unfortunately, he came into Police contact because he had lost control of his car while driving on the freeway, and had rolled his car over. He had to be pulled out of an upside-down car while oncoming traffic was diverted. Accordingly, there wasn't much to contest about the reason for the initial Police contact, considering that the Police are rather obligated to stop and help out when a car is upside down and blocking traffic on the freeway.

Nor was there much else to fight over. My Client, while (thankfully) very cooperative, had obviously been drinking (he was double the legal limit, as it turned out) and consented to a blood test on the way to the hospital to get stitched up. With no real evidentiary issues to challenge, I worked out a deal to make sure there would be no Jail, and then prepared my Client for the all-important alcohol assessment test that is part and parcel of any DUI case that is not dismissed or "knocked out" somehow.

After we had worked out a deal, but before the Sentencing date, as the Law requires, my Client appeared at the Court's Probation Department for his Pre-Sentence Investigation (PSI) interview and to take the mandatory alcohol assessment test. On the day we returned to Court for Sentencing, we reviewed the Pre-Sentence Report completed by the Probation Officer and forwarded to the Judge. I should point out that each of these things, from the return date to Court for Sentencing, to the writing of a Pre-Sentence Report, to the fact that it is forwarded to the Judge, is required by Law in a DUI case, so anyone dealing with a Michigan DUI charge, no matter what Court their case is in, will go through this.

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August 17, 2012

Michigan Driver's License Restoration and DUI cases - Knowing when Drinking has Become a Problem

Part and parcel of my Practice as Michigan Driver's License Restoration Lawyer is helping people frame their Recovery stories, and put them into words. Anyone who hopes to win a Driver's License Restoration case in Michigan will have to show that they are Sober. Legally speaking, they'll have to show that their alcohol problem is "under control, and likely to remain under control." And they can't just waltz in and say so; the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) requires that a person prove these things by "clear and convincing evidence." This means a person must essentially present an airtight case.

If I accept a Michigan License Appeal or Clearance case, I Guarantee that I will win it. A first and necessary requirement for me to accept anyone's case is that the Client be genuinely Sober. In this article, I am going to explore what it means to bring an alcohol problem under control, and how that same thought process paves the way for a person to keep their alcohol problem under control. Much of this also applies to anyone who facing a DUI, particularly a 2nd, 3rd, or even subsequent Drunk Driving charge.

Lightbulb 1.2.jpgI should point out just over half of the people for whom I win License Appeals are not active in AA, while the rest (probably about 40%) attend regularly, or least somewhat regularly. AA is not necessary to win a Michigan License Restoration or Clearance, but it certainly is helpful. Even if a person has never been to an AA meeting in their life, if they are Sober, they can probably thank AA for blazing the trail from which the concepts of Recovery and Sobriety came.

One of the many cliché's that is part of the AA legacy goes like this: "I didn't get in trouble every time I drank, but every time I got in trouble, I had been drinking." I think that this is one of the best ways to summarize what goes through a person's head when they experience that "a-ha" moment and first acknowledge that their drinking has become a problem.

Much of the time, this "light bulb" moment occurs when a person gets their last DUI. Yet in any number of cases, a person will continue to drink after their final DUI, and will get their wake-up call another way. How or whenever it occurs, most people will agree that, prior to finally "seeing the light," they had a pretty good idea that something was wrong, or that at least something had to change about their drinking. In fact, most people try to deal with this by controlling or limiting or managing their drinking in some way, only to discover that, in the long run, such plans don't work out. AA people point to this as the very definition of insanity, describing it as doing the same thing over and over again, and expecting a different result.

From my perspective, whether it's a last DUI, a fight with a spouse or significant other, or some other negative event, the moment that precedes a person fully accepting that their drinking is a problem is what I call a "final humiliation." It is never part of anything good, even though I've had plenty of Clients who, after a time of abstinence, broke down for something as small as a toast, and, after just a sip, felt an overwhelming sense of regret. The realization that alcohol still held such power over them, or their thoughts, forced that final instance of humiliation, and led them to think "enough is enough." People in the Recovery world call this "hitting bottom."

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August 10, 2012

Michigan DUI Cases - BIg Money for Everyone

In my role as a Detroit-area DUI Lawyer, I meet with someone facing a DUI charge almost every day. What leads to a person getting charged with a DUI is something I have examined rather closely within the Drunk Driving section of my website and within the numerous Drunk Driving articles on this blog. Why so many people find themselves facing a DUI charge is something a bit different. In this article, we are going to take a look at how DUI means BIG MONEY for the cities and townships where they occur.

In this article, I am going to be rather candid. I'll begin by pointing out that I'm far from a cut-rate DUI Lawyer. My Fee in a 1st Offense DUI, for example, is $2800. At this price point, a person can expect to receive the benefit of a much higher level of service that takes into account not only their Legal needs, but their personal and emotional needs, as well. Because I'm not looking for Clients on a "low bidder" basis, I'm not pressured to move cases through quickly (higher volume/lower cost), and instead can take the time to carefully and properly handle a DUI charge and address each Client's unique concerns. Typically, my Clients that are rather well mannered, to the point, sometimes, of perhaps being a bit too polite to ask some direct, tough questions about the big picture in DUI cases. Yet I think these questions need to be asked...

Bag-of-money1.2.jpgOne of those questions they sometimes hint at (but may be too afraid to outright ask) is whether or not the Police could find better things to do than patrol for Drunk Drivers. Sure, the idea of keeping the roads safe sounds great, in principal, but keeping crooks from robbing people and breaking into cars and houses and garages is important, as well.

To fully answer that question, you need to understand that a person caught driving over the limit almost always represents a financial profit to the city or township where the Arrest took place. Let's put this in perspective...

Imagine you were out chatting with a neighbor, and that person told you that another neighbor, a few doors down, had his garage broken into and some of his belongings stolen. Wouldn't you almost feel a sense of violation and even vulnerability about your neighborhood? If he said that the bad guys broke in around midnight, and if, one night, a few days later, you were up around that time, and thought you heard a noise in the backyard, wouldn't you run to the back door and turn the light on, wondering if your garage was being burglarized?

It's this kind of crime that really scares people. No one wants to become a victim. Everyone feels better when they see the Police driving down their block. Yet it seems like the Police are out looking for Drunk Drivers a lot more than they're patrolling the neighborhoods and dark places, where a lot of crimes take place.

According to a recent Michigan State Police report, there were 283 alcohol-related traffic deaths in 2010. In that same year, the city of Detroit had 307 murders, its lowest number in over 40 years. Still, more people were murdered in the city of Detroit than died in all of the alcohol-related traffic accidents in the entire state of Michigan in 2010. Those 283 deaths are certainly 283 too many, but they come as part of over 41, 800 DUI convictions in that same year. That figures out to .675%, meaning that less than 1% of all DUI convictions involve a fatal accident. In fact, it's about two-thirds of one percent. And that's not the half of it...

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August 6, 2012

The Bottom Line in a Michigan DUI Case - Operating While Intoxicated (OWI)

In this article, I'm going to follow suit from the last installment on this blog about the bottom line in a Michigan Driver's License Restoration Appeal, and take a step back in order to answer the question "what is the bottom line in a Michigan DUI case?" Having authored over 90 rather detailed articles about every step in a Drunk Driving case, and giving the subject an unusually honest and in-depth treatment on my website, it occurred to me that sometimes, as I noted in the previous article about Driver's License Restorations, we can get so caught up in all the rules and technicalities that we lose sight of the big picture, and, as the saying goes, "can't see the forest through the trees."

Here, we'll set out to uncover and really highlight what, after everything is said and done, a DUI case is really all about.

NightCop 1.2.jpgAs we approach this topic, we begin to see the problem with imposing a simple question upon such a complex topic. Legal definitions cannot be escaped. In the real world, "driving" a car, or "operating a motor vehicle" means, well, driving it.

Not so in the world of DUI, where the Courts continually refine and redefine things in what almost always seems like the wrong direction. According to Michigan Law, as made clear by our Courts, "operating" a motor vehicle extends to merely sitting behind the wheel with the keys in the ignition, even if the car is not running. While I generally avoid interjecting anything remotely like political opinion into my blog articles, this is an example of how far afield the whole judicial system has gone. This is but one of many examples, just within the DUI field, where logic has been twisted and bent beyond common sense.

Hardly anyone, if they trusted their 10 year old child enough (as many parents would) to run out to the car while it's in the driveway, and put the keys in it and sit for a minute behind the wheel while mom or dad comes out, would answer, if asked "where's little Timmy" by saying, "oh, he's out driving the car."

Thus, as I try pull out a "bottom line" to DUI cases, I cannot completely ignore, precisely because I'm a DUI Lawyer, things that a regular person would take for granted, like what it means to be "driving" a car.

The same thing goes for a person's BAC, or Bodily Alcohol Content, as measured by a breath or blood test. There seem to be a million little rules and issues involved in determining what that number really is, and what it really means. In a sense, there is no clear agreement on what an accurate BAC score really is, or how it's obtained, or what it means. Consider an example (this is also an example of how DUI Lawyers challenge breath or blood evidence):

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July 23, 2012

Getting a 3rd Offense Felony DUI Dropped to a 2nd Offense Misdemeanor in Michigan

In my DUI Practice, some of the most nervous callers with whom I speak are, not surprisingly, those charged with a 3rd Offense (Felony) Drunk Driving. This article will focus on one such case I am handling now, and how I got the Prosecutor to reduce the charge from a 3rd Offense Felony to a 2nd Offense Misdemeanor at the very first Court date. This is a longer story, but I'll keep it to one installment rather than breaking it up into two parts.

A few years back, the Michigan DUI Law was changed to make a 3rd Drunk Driving charge after 2 prior DUI convictions, at any point in a person's lifetime, a Felony charge. In other words, if a person has 2 prior DUI convictions on their Record, no matter how long ago, and thereafter picks up another DUI charge, that 3rd charge is a Felony. This was a huge change from the prior Law, which used to require that the 3rd charge occur within 10 years of the person's first conviction.

Rum 2.1.jpgIt is simply impossible, in the real world, for a person to emerge from Jail, after a 3rd (or 4th, or 5th, or whatever) DUI Arrest an NOT know that they are, or will be, facing a Felony. Therefore, the how and why of such a charge really becomes academic, as anyone facing it rightfully focuses their concern on what is going to happen to them as a result of it.

In this case, my Client had been socializing at Macomb County marina, and decided to go home. Admittedly, he had consumed a number of drinks, and as he was attempting to leave, he struck a boulder at the side of the road, causing his airbags to deploy and one of his front tires to go flat. The rim of the tire was damaged, as well, and he was more or less "beached" on the boulder. Someone called this in on his or her cell phone, and the Police headed over.

A few minutes later, by the time the Police were arriving, my Client had managed to get his vehicle off the boulder, and was trying to exit the marina. Thus, the as the responding Officers entered the marina, they were greeted by a vehicle with a banged up front end, deployed airbags, a flat front tire and a bare, damaged rim dragging along the roadway, shooting sparks, heading toward them. They activated their lights, blocked his path, and stopped him.

As they made contact with my Client they found him to be cooperative, albeit kind of "out of it." When one of the Officers asked him how much he had to drink that night, my Client gave one of the world's most popular answers: Two drinks. Ask any Cop or DUI Lawyer what the most common response is to the question of how much a person had to drink, and most often you'll hear either "a couple," or "two." Once out of his vehicle my Client had some balance problems, and didn't do particularly well on the Field Sobriety Tests. For good measure, I obtained the Police car video to make sure the Police Report accurately reflected how my Client performed, and found that there was no discrepancy.

This is important. As a general rule, if there is in-car video, it should be obtained. If the video shows the Client staggering and stumbling all over the place, the Police Report, which is the Officer's account of what happened, needs to be consistent with that. Thus, if the Police report indicates that a person had difficulty holding his or her balance, or did not do very well on the alphabet and counting backwards tests, the video better reflect that. Even if a person is obviously drunk, the Police Report needs to be an accurate, truthful account of what happened, or the Officer's credibility is called into question.

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July 6, 2012

Beating a DUI case in the Detroit-Area

As A Detroit-area DUI Lawyer I often explain that I "handle" DUI cases. But what, exactly, does "handling" a DUI case mean? As I pondered that question, a few things became apparent. I prefer precision in language, and upon thinking about it, merely saying that I "handle" DUI cases is rather imprecise. In truth, I concentrate in, or, one could say, specialize in, DUI cases. It is part and parcel of the bulk of what I do on a daily basis.

About 90% of my Practice consists of DUI cases, and the related field of Driver's License Restoration Appeals for those who have had their License Revoked for multiple Drunk Driving offenses. Beyond that, the rest of my caseload involves things like Suspended License charges, or Marijuana or Controlled Substance Offenses, almost every one of which begin with a Traffic Stop of a motor vehicle.

not-guilty 1.2.jpgAs a matter of course, I strongly warn anyone facing a DUI charge against getting involved with some Lawyer who claims to "do" DUI cases (or who just "does" any kind of law, for that matter). In that same way, I also warn against falling victim to the appeal of the "lowball" (meaning cheap, or cut-rate) Lawyer, or anyone who feels their best attribute or quality is that they are the "low bidder." It is usually a more general practitioner, or a Lawyer who focuses more on their "affordability," rather than their skills, who simply "does" DUI cases.

It seems then, that we can redefine the question from what does it mean to '"handle" DUI cases to what does it mean to "properly handle" DUI cases? Unlike the Lawyer who "handles" DUI cases, along with Divorce cases, Dog Bites, Slip and Falls, Wills, and everything else under the sun, "properly handling" DUI cases is more about limiting one's caseload to just DUI cases, and those things closely related to it. In that sense, being a DUI Lawyer, or a Driver's License Restoration Lawyer, is similar to being an "ENT," or Ears, Nose and Throat Doctor. Those systems are so completely interrelated and intertwined, that to fully know any one, each of the other 2 must be understood, as well. How any one works in conjunction with the others requires understanding those "others."

With the question now redefined as what does it mean to properly handle a DUI case, the answer is two-fold:

1. It means either beating the case, or getting it dismissed, or "knocked out" somehow -
or if that cannot be done because the case is based upon sound legal evidence, then -

2. Getting the charge reduced and/or otherwise limiting the negative consequences to the Client.

Simply put, achieving either result means making things better than they'd otherwise be without my help and guidance. In the rest of this article, we'll take a summary look at how and why the evidence gathered by the Police and presented in support of a DUI charge needs to be carefully evaluated, with an eye towards successfully challenging it, more than anything else. Some of this is obvious, and some is not...

Continue reading "Beating a DUI case in the Detroit-Area" »

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June 22, 2012

DUI 2nd Offense in Michigan - Detroit Area Courts - Part 2

In Part 1 of this article, we began our examination of a 2nd Offense DUI in the District Courts of Macomb, Oakland and Wayne Counties. We looked at the general ideal of "avoiding Jail," and began looking at the real sleeping giant in any 2nd Offense case: The issue of a potential drinking problem. We ended Part 1 by transitioning from just staying out of Jail to avoiding as many of the other potentially burdensome consequences of a 2nd Offense DUI case as possible. We talked about avoiding all the conditions of "Probation from Hell."

But to do that, certain things need to be understood.

Booze Cuffs 1.2.jpgChief amongst them is that in a 2nd Offense DUI, the Law REQUIRES that a person be Ordered into some kind of Counseling. A 2nd DUI within 7 years makes a person a "Habitual Offender" under Michigan Law. This means there is a presumption that they have an alcohol problem. It seems that the lawmakers paid some attention to statistics, as well.

And all of that means that unless the case gets "knocked out" somehow, the Judge will absolutely be Ordering the person into some kind of Counseling.

About the worst legal strategy a person can have is to simply show up on the day of Sentencing and wait to see what happens. On par with such an utter lack of a plan is to show up at Sentencing, and then, in the hopes of staying out of Jail, tell the Judge something meaningless, like "I'm willing to do whatever it takes" or "I am willing to go to Counseling," or, worse yet, to admit, as if in a moment of sudden but ridiculously delayed realization, that "I know I have a problem." This is just being reactive, albeit in a rather dim-witted and slow kind of way.

Instead, the Client should be guided into Counseling before they ever wind up in front of the Judge. Not only will they be able to pick out a Counselor who is more affordable and convenient for them if they take the initiative and start early (meaning they won't just get stuck into some "one size fits all" Counseling program the Court Orders, regardless of how convenient or not it is for the person), they will also score big time "brownie points" for having recognized the need for help early on, and having done something about it. I can and do use such proactive actions to my Client's decided advantage throughout the case.

This works even for those who firmly believe that they don't have any issues or problems with alcohol, because the Law requires everyone with a 2nd Offense to get into Counseling no matter what. A person's self-assessment is NOT part of this equation. This is part of the way a DUI Lawyer helps his or her Client make things better. This is what the "Attorney" part of the title "Attorney and Counselor at Law" means.

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June 18, 2012

DUI 2nd Offense in Michigan - Detroit Area Courts - Part 1

A Second Offense DUI is serious business. Anyone facing this charge does not need to be scared out of their wits by laundry listing all the bad things that can happen. This article will take a realistic look at what will happen to a person facing a 2nd Drunk Driving charge, as well as how this charge is viewed by the Courts. As bad as it can be, a 2nd Offense Drunk Driving is NOT the end of the world. In order to properly cover this topic in sufficient detail, this article will be broken into two parts

In that regard, geography plays a prominent role in how things will turn out. Where a DUI takes place has as much, if not more to do with what will happen to a person as anything else. Beyond anything else, a 2nd Offense DUI really raises red flags about a person's alcohol use, and invariably signals a potential, if not likely drinking problem.

DUI Drinkeys copy 1.2.jpgThe first concern anyone has when facing a Second Offense Drunken Driving charge is whether or not they're going to Jail. This has to be a starting point for any worthwhile discussion of Second Offense cases. Imagine if this article began by discussing Fines and Costs... Who care about Fines and Costs over Jail? Avoiding Jail is always the first order of business. Once the way has been cleared for that, minimizing all the other consequences that can follow a DUI Second Offense charge becomes the next order of business.

One of the best ways to avoid Jail is to avoid the whole DUI charge. Every single aspect of the case must be put under the microscope, so to speak. Why was the person stopped? Was there a cell phone tip? Is there Police car video? How were the Field Sobriety Tests conducted? Were the performed on a level surface, in decent weather, or on angled or uneven pavement, and/or in bad weather? What about the Breath Test? Was a Breathalyzer test administered? How long after the Arrest? Was the test conducted properly? Was the Breathalyzer machine properly calibrated? Was a blood test taken, instead? What were the results, and was there anything that could affect the accuracy or reliability of those results?

There are countless things, large and small, that can affect how strong or weak the evidence in any DUI charge may be. Often, cases that seem clear-cut might be compromised with an almost hidden defect in the evidence that cripples the Prosecution's evidence. Other cases might seem, at least to the person facing the charge, fraught with problems, yet turn out to be far stronger than they might at first appear. The key is to look, and look carefully. If you don't look, you won't find...

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May 18, 2012

What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 3

In Part 1 of this article we drew a rough outline of what "Probation" means. In Part 2, we saw how Macomb, Wayne and Oakland Counties were each different from on another, with Macomb being the best in which to face a DUI, Wayne being not far behind, and Oakland really coming in as the last place one wants to wind up before a Judge after a Drunk Driving Arrest.

In this third and final installment, we will look at both standard and "special" conditions of Probation, and try and get a feel for what being "on Probation" for a DUI case really means.

Probation Star 1.2.jpgAt this point, we can move on from our County-by-County comparison, and examine what "Probation," and being on it (especially for a Drunk Driving charge), really means. Probation begins with the Judge signing an Order, which is a document called an Order of Probation.

An Order of Probation is a list of things the Judge Orders a person to do, as well as some they are NOT allowed to do. All Courts, independent of location, forbid many of the same things while a person is on Probation. Let's look at some "standard" conditions of Probation, beginning with the things a person is Ordered NOT to do:

  • Not violate any criminal law of any unit of government.
  • Not leave the state without the consent of this court.
  • Make a truthful report to the probation officer monthly, or as often as the probation officer may require, either in person or in writing, as required by the probation officer.
  • Notify the probation officer immediately of any change of address or employment status.
  • Not purchase or possess a firearm.
  • Not consume any alcohol.
  • Not use or possess any controlled substances or drugs without a valid prescription (medical marijuana is specifically prohibited by many Courts).
In some cases, a Judge will add "special" conditions. Most often these are things like:
  • Not to be Arrested or Charged with any crime. No conviction is required.
  • Not to enter into any bars, or establishments whose primary purpose is the selling of alcoholic beverages.
  • Not to drive a motor vehicle without a valid License.
Probation is often thought of as kind of an order to just "stay out of trouble," and to a large extent, that is true. However, in a DUI case, a person is quite likely to be required to do certain things beyond just not getting in trouble. Some of these things are pretty standard, while others are unique to either the particular case, or the Judge presiding over it.

Continue reading "What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 3" »

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May 14, 2012

What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 2

In Part 1 of this article, we began to sketch out a general concept of Probation. Here, in this second part, we'll add more detail, and really get a handle on what it means to be "on Probation" for a DUI in Macomb, Wayne and Oakland Counties. Let's refer back to our example from the first part of this article involving Dan the Driver and his 1st Offense DUI, and see how his case would likely play out in a Court from each of the 3 Counties.

First, we'll assumImpaired Driving" (OWVI). e that the evidence against Dan is solid, that the case is not going to be magically dismissed somehow, and that his BAC (Bodily Alcohol Content) was about a .14, which is not too high (remember, .17 and above can trigger a "High BAC" charge).

PO BADGE Pink 2.jpgSecond, we'll assume that Dan's DUI, meaning his original charge of "Operating While Intoxicated"(OWI) charge will be plea-bargained down to the lesser charge of "Impaired Driving" (OWVI).

Third, we'll assume that I am handling the case. I'll make sure that when we talk about Dan being put on Probation, that means Probation with NO Jail. DUI cases are special, and properly handling them requires specialized knowledge and skill. While I can't speak for any other DUI Lawyers, I can enthusiastically advise the reader to NOT hire some Lawyer who just "does" DUI cases - along with all kind of other stuff.

Finally, we'll assume that Dan has been thoroughly prepared to take his written alcohol assessment test, and undergo the whole PSI interview.

In Macomb County, it can almost always be worked out so that a person would face no more than a year's Probation in any Court. In certain places, like Shelby Township and New Baltimore, I can probably keep my Client off of any kind of Probation, meaning that we might be able to wrap his or her case up with little or nothing more than the payment of fines and costs. In other cities, like Eastpointe, Roseville, Sterling Heights and Warren, I might be able to help the Client avoid what's called "Reporting Probation." Instead of having to show up once a month and meet with a Probation Officer, a person can get "Non-Reporting Probation," and will simply be under the "eye" of the Court for the next year. Obviously, if the person gets Arrested and/or Convicted for a new Offense, he or she will be in big trouble.

In places like Clinton Township, Romeo, and St. Clair Shores, I should be able to keep my Client's Probation to no longer than a year, although these Courts will generally require that the person does, in fact, Report for that year. If my Client's case is pending in one of these Courts, I will shift the focus of our alcohol assessment and PSI preparation from trying to completely avoid Probation, which is not likely, to avoiding the kind of "do this and do that" Probation that is sometimes called "Probation from Hell."

The bottom line is that Macomb County still is the best place to wind up facing a DUI. Now, we'll turn our attention to Wayne and the Oakland Counties.

Continue reading "What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 2" »

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May 11, 2012

What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 1

As a Michigan DUI Lawyer who prides himself on keeping his Clients out of Jail, dealing with "Probation," in virtually every sense of the word, is an everyday thing for me. In many of my other Drunk Driving blog articles, and within the various DUI sections of my website, I examine the rather critical and important role of the Pre-Sentence Investigation (PSI) process carried out by a Court's Probation Department, including the vital part that the legally required alcohol assessment test plays in the ultimate outcome of any DUI case. As I have noted, the PSI, and alcohol assessment test that is part of it, determines, more than anything else, what happens to a person as a result of DUI.

This article will shift the focus from affecting the outcome of the PSI process to the very outcome, itself. We'll look at what being "on Probation" really means, how the conditions and terms of Probation are decided, and how that is different from Court to Court. We'll cover this subject in 3 installments in order to really understand Probation, and to make sense of it.

MichiganCorrections Patch 1.1.jpgAt its simplest, Probation is an alternative to Jail. A person is put on Probation with the understanding that they will follow the rules (whatever those rules might be) set out by the Judge, at Sentencing, or else get to Jail for Violating Probation. Beyond this rather simple instruction to look at the obvious, written instructions, we must also read "between the lines" in order to get a complete picture of what being on Probation really means.

Although it is an alternative to Jail, Probation can be handed out along with Jail. The maximum legal penalty in a 1st Offense DUI in Michigan is 93 days in Jail, a Fine of up to $500, plus Court costs. Let's look at a typical 1st Offense case as an example:

If the Dan the Driver gets a 1st Offense DUI, and the Judge sends him to Jail for 93 days, he or she cannot put Dan on Probation. Dan will have "maxed out" his Sentence, and therefore, upon his release, not be subject to any further punishment by the Court. The Judge can also elect to NOT send Dan to Jail, and put him on Probation for a year, or two, with the understanding that if he screws up anywhere along the way, he can be sent to Jail for any period of time up to the whole 93 days in Jail.

A less common, but perfectly legal option is to send Dan to Jail for some period less than the full 93 possible days, and put him on Probation, with the understanding that if he screws that up, he can be sent back to Jail to serve any part of the un-served 93 days. Thus, if Dan is sent to Jail for 21 days, and then stuck on Probation for a year, there are 72 un-served day of Jail that the Judge still has "in the bank" that he or she can hand out, if Dave messes up somehow.

For all of that, "Probation" usually means "no Jail."

Continue reading "What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 1" »

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April 9, 2012

Rescued From the Stress and Fear of a Detroit-Area DUI Case

I handle DUI cases in all the District Courts of Macomb and Oakland Counties, as well as parts of Wayne County. Almost every day, I meet with someone facing their first DUI, which in the majority of cases means someone facing their first-ever Criminal charge. In addition, many of my DUI Clients are people facing a 2nd Offense, or even a 3rd (Felony) Offense Drunk Driving charge. Their apprehension over what will happen may be a bit more informed, if not different, but no one is ever happy about being charged with a Drunk Driving Offense and wondering what's going to happen to them.

One thing that all people facing any kind of DWI charge have in common is the emotional strain they feel from the first moment of Police contact. In an earlier article on this very subject, I began examining the emotional impact of a DUI, and numerous times since its publication, a new Client has told me how they identified with it. In this article, I will reexamine that subject from a slightly different perspective. It seems that there is more to this topic than I was able to explore in the previous article, and I think a big part of that emotional stress is related to fear. While fear itself can be a healthy warning mechanism that keeps us safe, excessive or unreasonable fear can wreak havoc on a person's well being.

Superman2.jpgIn the world of alcohol-related Driving Offenses, fear tends to lose any real value once a person has been pulled over. If fear can provide any benefit in this setting, it would be to prevent a person who's had a few too many from getting behind the wheel in the first place. Once the keys are in the ignition (it may surprise the reader to learn that, in Michigan, sitting behind the wheel in a car with the keys in the ignition, even thought the car hasn't been started, has been found by the Courts to be enough exercise of "control" over the car for that person to be charged with DUI), it's too late. All the fear in the world won't stop what's about to happen.

There is probably no unpleasant feeling a person can experience that rivals that "sinking feeling" they get when they see the Police car lights in their rear view mirror after they've been out drinking. And if we could just hit the "pause" button at that very instant for just a moment, we'd discover something very important. There is usually a very good reason for that sense of foreboding a person feels. In most cases, the Driver knows he or she is over the limit. It's not like they get that sinking feeling because they think they're about to get a speeding Ticket. Even if they rather naively hope they may get through the Police contact without the issue of drinking coming up (like that ever happens...), they know that they're in a tight spot. Ask anyone at that precise instant if they'd like to volunteer to perform some Field Sobriety Tests or take a Breath Test, and you won't see any hands raised.

In some people, alcohol impairs judgment in such a way that they think they may be able to sound sober, or talk their around, if not out of, the situation. Some may even think they can do "okay" on any kind of Field Sobriety Test. In an ironic, if not humorous twist of fate, many of these same people, when reviewing the Police car dash cam video, will see themselves after a few too many, and rather humbly say "turn it off. I've seen enough."

Continue reading "Rescued From the Stress and Fear of a Detroit-Area DUI Case" »

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March 9, 2012

How to Beat a Detroit-Area (Michigan) DUI and Cure Cancer at the Same Time

This article will admittedly be a bit sarcastic. As part of my DUI Practice, I'm in Court almost every day in Macomb, Oakland and/or Wayne County. I sit shoulder to shoulder with many conscientious Lawyers fighting hard to reduce the consequences of a lapse in judgment that results in a person being Arrested for Drunk Driving. We compare notes and exchange information. No one laughs these cases off and talks of having it dismissed like some speeding Ticket where the cop doesn't show.

No one, at least, except those trying to sell that very idea. And those operations are making a lot of money at it.

snakeoil1.2.jpgTime and time again, I meet with a new Client, often for a 2nd Offense DUI, who is a bit concerned and reticent about the whole DUI Lawyer thing because, they admit, they spent $5000, or $10,000, or even more on the Lawyer who handled their 1st Offense DUI and sold them the "we'll beat this thing..." bill of goods.

Am I a bit jealous of the huge income these slicksters make in this racket? Absolutely. Would I ever do such a thing just to make money? Absolutely NOT.

The truth is, I think I'm as good a writer, if not significantly better, than anyone behind those operations. If I wanted to, I could devote my efforts to crafting the most convincing-sounding blogs and web pages around, and stand back and cash in by selling the notion that if you really try, you can beat almost any DUI. But I won't do that, because it's wrong.

Which is not to say that beating a DUI is impossible. Far from it. I knock out a DUI anytime I have a case where it can be done. It's just that, statistically speaking, it's unlikely, at least in most cases.

To prove my point, I "googled" the phrase "cure cancer." Sure enough, there are plenty of smooth operators out there with all kinds of products you can buy for just that purpose. From vitamin cocktails to holistic lifestyle overhauls, if you're willing to spend big money on a long-shot hope, there is someone out there willing to cash in.

The analogy doesn't end there. If you think about it for a moment, this means that all those hard-working Doctors treating cancer patients are either deliberately ignoring the vitamin-cocktail cure for cancer thing, or they're just plain stupid. Instead, the inquiring mind is asked to believe that it is this handful of snake-oil salesman who really have the answer, not the medical community at large.

Do you really believe that?

Unfortunately, enough people do to keep these vitamin-cocktail operations in business.

The same holds true in the field of DUI defense.

Continue reading "How to Beat a Detroit-Area (Michigan) DUI and Cure Cancer at the Same Time" »

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February 13, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 7

In Part 6 of this series, we reviewed how the Pre-Sentence Investigation (PSI) Report and Recommendation is completed by the Probation Officer, and how the DUI Driver and his or her Lawyer review the Report and Recommendation in Court, before the actual Sentencing, in order to make sure that the information contained in that Report is accurate.

In this seventh and final installment, we will wrap up our series on the Steps in a Detroit-area (meaning Macomb, Oakland and parts of Wayne County) DUI case by looking at the the 8th and final step in any DUI (or other Criminal case, for that matter), where the Lawyer comments on the Sentencing Recommendation to the Judge at the actual Sentencing Hearing. After this step, the Judge pronounces the Sentence, and the person learns their fate...

7three.jpg8. Commenting on the PSI and Recommendation to the Judge at Sentencing.

As I noted in the previous installment, the PSI Report and Recommendation must be reviewed, in Court, on the day of Sentencing, by both the Defendant and his or her Defense Lawyer before the Sentence can be imposed. It must be reviewed for errors, and then returned to the Court Clerk. Once the case is called, the Judge will ask the Lawyer if he or she has reviewed the Report and Recommendation with their Client. The answer must be "yes, Your Honor." Next, the Judge will ask something like, "are there any additions, corrections or deletions to be made?" Hopefully, the answer to this question will be "no, Your Honor," but this is the time to update and correct anything about the person or their background that is not accurate.

Once the Report has been accepted as accurate, the Judge will then ask the Lawyer if there is anything he or she would like to say about the Sentencing Recommendation, and on behalf of his or her Client. This is where those skills I talked about (okay, admittedly more like "ranted" about) in the previous section become so important.

Leaving the self-serving personal endorsement made in the previous section behind, this is really where the persuasive speaking skills of the Lawyer count the most. You only get one chance to "make your case" to the Judge, and this is it. What kind of conditions a person will walk out of Court having to satisfy, and, indeed, whether they walk out of the Court at all, is decided right here. It is at this moment that anyone who bargain-hunted for a Lawyer will feel the regrettable sting of "you get what you pay for." About the worst thing a person can say about the Lawyer they had is "I could have done that myself," or "My Lawyer didn't do anything for me; he (or she) just stood there!"

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 7" »

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February 10, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 6

In part 5 of this series about the steps in a DUI case, we undertook a rather in-depth analysis of the alcohol assessment testing process, including how these tests are scored by the Probation Officer who administers them. We saw that there is an almost endless number of such tests, but that the Courts most often use one of only several, each of which is simply "scored" like a high-school math test, and requires no interpretation beyond charting that score on a grid called a "scoring key."

In this sixth part, we will continue with a review of steps 6 and 7 of the PSI process:

6V.gif6. Completion of the Sentencing Recommendation by the Probation Officer
7. Reviewing and correcting the PSI and Recommendation

We will cover the 8th and final step (Commenting on the PSI and Recommendation to the Judge at Sentencing), in the seventh and final installment of this series.

In reviewing steps 6 and 7, will see how that alcohol assessment score is used by the Probation Officer in the larger process of creating the Pre-Sentence Investigation (PSI) Report and Sentencing Recommendation that will ultimately find its way into the Judge's hands.

6. Completion of the Sentencing Recommendation by the Probation Officer

Having gathered and reviewed the person's background information, conducted a face-to-face interview, and then scored the alcohol assessment test, the next step in the PSI process is now completely in the Probation Officer's hands - writing the Report and Recommendation that will ultimately be read by the Judge and used in deciding what a DUI Driver's Sentence will be.

Those readers who have followed this entire series will recall me pointing out, early on, that in a 1st Offense DUI there will be NO JAIL. This means anyone who hires a Lawyer in a 1st Offense DUI for the primary purpose of staying out of Jail is wasting their money; they aren't going to Jail in the first place. The Sole exception is for any DUI case pending in the 48th District Court in Bloomfield Hills, before Judge Kimberly Small, in which case, even if Jesus were the Lawyer, the person would be going to Jail anyway. Yet I have nothing but respect for Judge Small. I understand her reasoning, even if I don't agree with it, and find her to be a very capable Judge and a courteous, fine and polite person. I just feel sorry for any DUI Driver who winds up in front of her.

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 6" »

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February 6, 2012

DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 5

In Part 4 of this article about the steps in a Detroit-area DUI, we began our rather detailed inquiry into the various "steps" of the Pre-Sentence Investigation, or PSI process. We covered the first 3 steps:

1. Setting the Probation appointment
2. The background paperwork
3. The actual Probation interview

5.1.jpgHere, in this fifth part, we will cover steps 4 and 5 of the PSI process:

4. Taking the alcohol assessment test
5. Scoring of the alcohol assessment test by the Probation Officer.

This is an intense subject, and these are serious subjects. Given their importance, we will devote this entire installment to these 2 topics. This will be a long piece, but as I often point out, there are no shortcuts to doing things the right way, and that includes studying and explaining them.

In the final 2 installments of this series, we will cover the remaining steps (6 through 8) of he PSI process:

6. Completion of the Sentencing Recommendation by the Probation Officer
7. Reviewing and correcting the PSI and Recommendation
8. Commenting on the PSI and Recommendation to the Judge at Sentencing

Here, we will resume our scrutiny of the steps of the PSI process by picking up with the alcohol assessment test.

4. Taking the alcohol assessment test.

I want to be emphatic about this: THE ALCOHOL ASSESSMENT IS THE MOST IMPORTANT PART OF THE WHOLE DUI AND PSI PROCESS. What happens at this stage has more impact on the kind of Sentence a person gets for a DUI than all the other stuff combined.

In other words, if you do well here, things will be a lot better, meaning more lenient, than if you don't. And to be clear, these tests are scored numerically. A low score is good, while a higher score spells trouble. Thus, the higher the score, the worse the result. Conversely, the lower the score, the better the result, meaning the less likely a person is to have an alcohol problem, or have the potential to develop one. Therefore, a low score is the ultimate goal when taking an alcohol assessment test.

So how do you get a low score?

Continue reading "DUI, DWI and OWI in Michigan - A Detailed Look at how These Cases are Handled in the Detroit-Area - Part 5" »

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February 3, 2012

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

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

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

Four.1.2.jpgHaving started our discussion at the Arraignment stage in Part 1, through Pre-Trials in Part 2 and Trials in Part 3, we have ended up at the stage where a person facing a DUI (called the "Defendant") will have either pled Guilty to some kind of charge after a Pre-Trial, or have been found Guilty, or not, after a Trial.

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

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

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

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

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January 30, 2012

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

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

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

Step3.3.jpgTo begin, it is fair to say that a DUI Trial occurs because the Prosecutor and the Defense Attorney are unable to agree upon a resolution. Beyond that rather "legal" description, it typically means that the Prosecutor has offered no kind of "deal," and the Defense Lawyer believes he or she can either beat the case at Trial, or at least get a better (always meaning less-serious, or severe) verdict than whatever plea offer (or not) is on the table.

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

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

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

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

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January 27, 2012

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

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

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

step2.2.jpgThe overwhelming majority of DUI cases are resolved through a Plea agreement, and that usually occurs as the result of a Pre-Trial Conference. In most cases, the Defense Lawyer and the Prosecutor come to an agreement called a Plea-Bargain. A Plea-Bargain means the charge the person is facing is reduced to something less serious. Typically, in a 1st Offense case, a person will be charged with OWI (Operating While Intoxicated) and their Lawyer will negotiate with the Prosecutor to reduce the charge to the less severe offense of Impaired Driving (OWVI). This assumes, of course, that there is no defect in the evidence that could lead to the case being "knocked out" or that could result in a "Not Guilty" verdict if the case actually went to Trial.

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

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

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

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January 23, 2012

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

It has been quite some time since I've gone over the steps involved in a DUI case. This article will examine every part of the process following a person's release from Jail as their case winds through the Judicial system. Because I intend to cover this subject in detail, and use some examples along the way, this article will be broken into seven (7) rather long installments. This first installment will focus primarily on getting out of Jail after a DUI Arrest, and will examine the Arraignment stage, which occurs right before, or, in other cases, right after a person's release.

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

1st Step3.pngEven for those facing a 2nd Offense DUI, such a charge is often only their second time dealing with the Criminal Justice system, and they were often too nervous the first time to recall everything that occurred, beyond remembering that things weren't as bad as they feared. Now, facing a 2nd Offense, they know things are more serious.

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

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

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

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

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

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January 13, 2012

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

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

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

Cell Driving2.jpgIt all begins with a tip called in by another driver. Whether that driver is an overly-zealous "do-gooder," or a decent citizen honestly concerned for the safety of others really doesn't matter. What matters is that a description of a vehicle (meaning some identifying information such as make, model, color, and/or the plate number) is given, along with enough geographic information for a Police Officer to locate it.

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

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

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

Continue reading "Drunk Driving (DUI) Charges in Michigan Resulting From a Cell Phone Tip" »

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January 9, 2012

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

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

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

Copper car2.jpgIt doesn't take a rocket scientist to figure out that a 2nd Offense DUI is going to be a lot tougher than a 1st Offense. Many Courts, especially those in Macomb and much of Wayne Counties, are understanding enough to at least consider the possibility that a 1st Offense DUI can be an out-of-character incident for someone, and not necessarily the manifestation of an alcohol problem. In other words, it can be just an instance of bad judgment. Oakland County Courts are generally more inclined to be cautious in their approach to a 1st time DUI Offender, and will seldom be as lenient as either their Macomb or Wayne County counterparts. For all of that, with the exception of 1 Judge in the 48th District Court in Bloomfield Hills, a 1st Offender can essentially count on NOT going to Jail. The kind of "leniency" we're talking about here has to do with things like classes, community service and counseling, and NOT incarceration.

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

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

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

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December 16, 2011

DUI Legal Fees in Macomb, Oakland and Wayne Counties

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

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

get-money3.jpgFor what it's worth, I only handle charges brought in Macomb, Oakland and Wayne Counties, and I charge the following for DUI cases:

1st Offense: $2800. I begin with ½ ($1400) down, and the other ½ ($1000) must be paid prior to the conclusion of the case.

2nd Offense: $3200. I begin with ½ ($1600) down, and the other ½ ($1300) must be paid prior to the conclusion of the case.

3rd (Felony) Offense: Starting at $5000. I begin with half (½) down, and the other half (½ ) must be paid prior to the conclusion of the case.

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

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

Continue reading "DUI Legal Fees in Macomb, Oakland and Wayne Counties" »

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November 14, 2011

DUI in the Detroit-Area - Why so few Cases are Charged as "High BAC" or "Super Drunk"

As a DUI Lawyer who practices in Macomb, Oakland, and Wayne Counties, I handle DUI cases almost every day. About 2 years ago, our state legislature in Lansing decided that it would be a good idea to "up" the penalties in DUI cases where a person's breath or blood test (BAC) results are .17 or above. This new Offense is known as "High BAC" or "Super Drunk." Since it passed, the new Law has, by and large, been a flop. This article will discuss why almost no one Arrested for DUI, and whose breath or blood test results are .17 or above, at least in the Tri-County area, is charged with the new "High BAC" Offense

With all the things wrong in Michigan, one can only wonder how this subject ever even got on the legislative agenda, but if there's one thing we can say about Lansing, it's that every time a new law is passed, it will either make life more difficult, or expensive, or both. Ideas for actually making things better just don't show up on the menu.

Money can4.jpgIn their infinite wisdom, our State Legislators decided that anyone charged with a DUI who had a breath or blood test result (technically called a BAC, or Bodily Alcohol Content) of .17 or above should be charged with a more serious Offense which effectively doubled the penalties of a standard, old-fashioned DUI. Of course, it would have been somewhat unpopular, perhaps to the point of being political suicide, to stand against this idea, so both houses fell in step and went along, and the legislation passed without difficulty.

On the face of it, the notion of making "super drunk" drivers face stiffer penalties sounds like it could have the desired impact of discouraging people form engaging in this kind of behavior. Unfortunately, DUI is always an "unintended" Crime. No one sets out to go and get drunk, much less "super-drunk", and then drive home. Instead, as a person gets drunker, their ability to make a sound decision regarding driving gets proportionally impaired. In reality, getting drunk fundamentally impairs a person's ability to make good decisions. At 2 in the morning, and needing to get home, people will inevitably turn to what's most convenient to do that; their car, even though that's about the worst decision they could make, and one, when they were sober they swore they never would.

What no one bothered to consider was the financial impact of this new law. DUI has been called a "cash cow," and is unarguably a big financial boon to municipalities. At its simplest, DUI is big, easy and good money for the Courts, the Towns, and the Police which process and handle these cases.

In their haste to act, the legislature obviously did not consider that in "doubling" the penalties for High BAC cases, they were making this new Offense a state crime that could no longer be handled by local, city and township Attorneys, and would divert the Fines from those municipalities to the state. In other words, the Fines imposed in High BAC cases are paid directly to the State, instead of the city or township where the case has been brought.

This had the potential to cost cities and townships a huge amount of cash. This is like a dam in their revenue stream. And with money being in such short supply, there isn't a city or township anywhere that wants to give up any more than it has to, especially to the state. Although there may not be any accurate statistics, a large enough portion of DUI charges involve a person who tests out with a BAC of .17 or above. The percentage of people who come in over that limit is substantial. This in turn, presented a potentially substantial cut in the money flowing into cities and townships from DUI cases.

Continue reading "DUI in the Detroit-Area - Why so few Cases are Charged as "High BAC" or "Super Drunk"" »

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September 19, 2011

How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2

In part 1 of this article, we began examining the role of the PSI in a Criminal case. We learned that the PSI, or Pre-Sentence Investigation, is a comprehensive process that ultimately results in written Sentencing Recommendation being made to the Judge presiding in any given case. We also learned that the PSI Recommendation could be thought of as a "blueprint" for what the Sentence will be, as almost every Judge out there follows that Recommendation to the letter, or extremely close to it.

Here, in part 2, we'll pick up where we left off, beginning with a look at how the Probation Officer interviewing someone is likely to perceive that person. We'll continue by examining why, in a DUI case, for example, how well or poorly a person scores on the legally required alcohol assessment test impacts what happens to them at Sentencing.

Interviewing2.jpgFirst, bear in mind that everyone showing up for a PSI has been convicted of a crime. Technically speaking, Probation only deals with convicted Criminals. This may seem too harsh or strong a label for someone who has, for example, received their first DUI, and it may not sit well with them, but it does not change the reality that no one is required to meet with a Probation Officer for singing too much in the church choir. A person needs to understand how they are perceived by Probation Officer who will be interviewing them, if they want to positively influence that Probation Officer's conclusions about them.

And make no mistake about it, there is a whole psychological profile to Probation Officers. They are an interesting group, and, whatever else, really are the single most important person in a Criminal case, in that they write the Recommendation that will, in almost every case, be followed by the Judge. Knowing how to deal with them, and understanding things from their side of the desk is an important component in producing a better Sentence.

An example of what not to do in a PSI applies to those first-time Offenders, like the 1st Offense DUI person we mentioned above. Most middle-class DUI Offenders have a hard time thinking of themselves as "Criminals." DUI is, after all, more a crime of bad judgment more than anything else. Almost anyone facing a DUI would never think of robbing or harming someone, or stealing anything. So these individuals, who lack any kind of criminal mindset, are typically horrified at the prospect of being considered, much less treated, as a "Criminal."

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2" »

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September 16, 2011

How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1

When a person is facing a Criminal charge, they usually have lots of questions. First amongst them, however, is some version of "what's going to happen to me?" In this article we'll take a step back, and instead of trying to answer the question "what's going to happen," we'll examine why whatever does happen, in fact happens. In other words, we'll try to find out why a particular Sentence is handed down in a Criminal case.

Having been a Criminal Lawyer for over 20 years, I certainly have learned a lot. And while I hated to be on the receiving end of these comparisons 15 or so years ago, the reality is that I know a lot more now than I did then. I have learned things that go way beyond knowledge of the Law itself. Often, what is most important in predicting the outcome of any specific case has more to do with where the case is pending, or the identity of the Judge to whom it has been assigned, rather than the rule of Law itself.

Spotlight copy.jpgThis is why, when we speak of Doctors and Lawyers and other professionals who have around 20 years experience, we say they're "hitting their stride." This is also why you'll never see a rich and famous person being represented by a newbie Lawyer. Think of any celebrity Criminal case; the Lawyer who stands in front of the microphones is always a seasoned veteran.

Yet for all that, I began to figure out certain truths about why cases turned out the way they did pretty early on in my career. Here's where anyone who has ever had a prior Criminal case will instinctively understand what I'm about to say, while everyone else will simply have to believe the logic of it:

What happens, meaning the Sentence that a person receives, in any case, is always either identical to, or nearly identical to the Sentencing recommendation sent to the Judge by the Court's Probation Department.

This bears some explanation.

In all Felony cases, and in many Misdemeanor cases (such as DUI), the Law requires that, prior to a person being Sentenced by the Judge, they go to the Court's Probation Department for an evaluation and interview, called a Pre-Sentence Investigation (PSI), and that the Probation Department, as a result of that process, generate a written Report and Sentencing Recommendation to be used by the Judge in Sentencing the person.

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1" »

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August 15, 2011

DUI in Michigan -Getting 2 DUI Cases "Knocked Out" on the Same Day

If getting a DUI case dismissed outright is like winning the Powerball Lottery, then having a DUI case knocked down to a non-alcohol related Offense is like hitting the Jackpot in a raffle. As a busy DUI Lawyer, these victories are the things that become the highlights of my day-to-day Practice. I have pointed out, in many of the nearly 70 Drunk Driving articles I have published, that these kinds of outcomes are far more the exception, rather than the rule. Any DUI Lawyer will handle quite a few "garden-variety" DUI's before he or she gets one that can be knocked out, or knocked down.

This might explain why I'm so excited about a day in Court, the week before last, when, out of the 3 DUI cases on my schedule, 2 of them were knocked down to non-alcohol related Offenses. What's more, it happened in 2 different Courts!

Knockout.jpgObtaining these breaks is not, however, just a matter of luck. It requires a detailed analysis and review of the evidence by an experienced DUI Lawyer. Sure, there is an element of luck in that there is a sufficient defect in the evidence for any particular case in the first place, but finding that defect requires looking for it, first. In a way, this parallels the old saying "you won't know if you don't ask." A Lawyer wouldn't find a problem with the evidence if he or she didn't first evaluate that evidence with a careful and critical eye.

Beyond the benefit to the Client in avoiding the whole DUI charge, and all the negative consequences that go with it, these "jackpots" refresh the Lawyer, as well. Imagine if you were mining for gold, digging through dirt, and year after year you never found any. How much enthusiasm would you be able to sustain as you continued?

In each of the two cases referenced above, the "defect" in the evidence was not something pointed out by the Prosecutor. Nor was the defect obvious. Does this mean the Prosecutor simply hadn't evaluated the case as critically as I did? I tend to think so. Prosecutors, after all, handle tons of cases, and simply don't have the time to study each one like a Defense Lawyer, whose whole focus in on that single case. Even when they do read a Police Report, it's not as if the Prosecutor is looking for a "way out."

In my first case, there was a scientific problem with the Breathalyzer evidence. It would take far too long to explain it here, but the bottom line is that I was able to point out to the Prosecutor that his case was seriously compromised, and in light of the defects in the evidence that I showed him, he had little choice but to agree.

Continue reading "DUI in Michigan -Getting 2 DUI Cases "Knocked Out" on the Same Day" »

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August 12, 2011

Michigan DUI - How Long Will it Stay on my Record?

Within my Practice as a DUI and Criminal Lawyer, I am often asked by someone facing a DUI how long it will stay on their Record, or if the can come back later and have it Expunged.

The bad news is that a DUI will stay on a person's Record forever, and it can NEVER "come off."

eraser1x.jpgA DUI, technically called an OWI (Operating While Intoxicated) is both a Criminal and Traffic Offense. A conviction for a DUI goes on both a person's Driving Record, and their Criminal Record.

Beyond that, a DUI falls under a whole different set of Laws related to a Court's obligation to report certain, specified Offenses to the Secretary of State. Part of those Laws is a provision that Criminal Traffic Offenses CANNOT be Expunged, ever. And this applies equally to any Criminal Traffic Offense, not just DUI's.

Moreover, the Law forbids the Court from taking a DUI "under advisement," or otherwise "deferring" it. This is often the answer I have to give someone who asks about the possibility of having the charge somehow deferred for a given period of time, and if they do everything they're supposed to do, having the whole thing dismissed, or reduced to a non-alcohol-related Offense.

In short, it cannot be done, except in those cases where there is a critical and substantial defect in the evidence. And those situations are few and far between.

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July 29, 2011

DUI and the Commercial Driver's License (CDL)

A fair number of my DUI Clients are individuals who have a CDL, or Commercial Driver's License. Some know, before they contact me, that any kind of DUI conviction, including a 1st Offense, will automatically result in a 1-year Suspension of a person's CDL privileges. Those who didn't already know that are rather unpleasantly surprised to find out.

It used to be, a few years ago, that when a person faced, for example, a garden-variety DUI (meaning OWI, actually), their Lawyer would get the charge dropped to the less severe Offense of Impaired Driving, which only carries a 90 day Restriction of a person's License. During the 90 days the person's regular Driver's License was Restricted, their CDL was Suspended. After 90 days, they'd pay a $125 Reinstatement Fee to the Secretary of State, and their full License, including CDL, would be given back.

Garbage3.jpgThen someone in Lansing had an idea. Honestly, I try to keep politics out of this blog, but the older I get the more I'm convinced that politicians aren't nearly so much crooked as they are incompetent. Really, how many laws have been passed that made your life any better? Maybe the smoking ban was a good thing (sorry smokers...), but beyond that, anything that comes out of Lansing is either going to make life more difficult, or expensive, or both.

Anyway, some Einstein in Lansing figured that it would be a good idea to tack on a mandatory 1-year Suspension of a person's CDL as a punishment for any 1st Offense DUI charge. I can only guess that the idea behind this action was that this would somehow serve as a further disincentive for anyone to drink and drive.

Except that about the only time anyone finds out about this is AFTER they get a DUI charge, when it's too late to do anything about it. And the fallout from this part of the law is pretty substantial.

I've had utility workers who drive trucks for their employers worried sick about losing their jobs. The good news is that in all the cases I've handled, my Clients have been able to manage some kind of work-around. Sometimes this means filling a different position, and other times it means riding shotgun with another driver.

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July 18, 2011

Michigan DUI - Understanding and Challenging Breathalyzer Results

Anyone facing a DUI understands that the breathalyzer results are very important. Those numerical results are supposed to equate to a person's Bodily Alcohol Content (BAC), and are used by the Police and Prosecutors to show that that a person was "under the influence" or "over the limit" in any Drunk Driving Case. Beyond that, once a person's BAC has been measured at the Police Station, they are not released until that number has fallen low enough to be sure the Police aren't responsible for letting an intoxicated person out of their care and custody.

In my DUI Practice, this number is important to me for a variety of reasons. It goes without saying that any DUI Lawyer, like me, looks at that number with the hope that it can somehow be challenged in a way that makes the whole DUI charge collapse. In this article we'll briefly examine the whole notion of challenging the breathalyzer.

case-dismissed3.jpgI have pointed out that not every DUI charge can be easily "knocked out" because of some catastrophic breathalyzer problem. This is a phrase that we'll repeat a number of times throughout this article. I simply will not set up shop and "cash in" by selling, and telling people, what they want to hear, as opposed to telling the truth. And the truth is that not every single DUI case can be dismissed on some breathalyzer technicality. It angers me, however, that this tactic claims so many people who are vulnerable, and just hand over their money to someone disingenuous enough to smile, and take it.

In a prior article entitled Michigan DUI - How the Rich and Famous Beat the Charges," I pointed out that, in most cases, they don't. I think that's a fact worth repeating. If these charges could be beaten by simple persistence, then every single celebrity and person of fame would just plunk down the cash to "Lawyer up" and get the case dismissed. Yet, almost every day, we hear of someone famous getting charged with DUI, and, sometime later, you hear about them being placed on Probation.

Why?

Because not every DUI charge can be easily dismissed.

Consider, for a moment, the garden-variety DUI charge. The Officer will claim to have observed the Driver swerve or in some way drive erratically. Sometimes, these observations are made (or at least claimed) after a cell-phone tip. When the person is pulled over, the Officer notes all the usual characteristics of DUI driving. Fast-forwarding a bit, after being taken to the Police Station, the end result is usually a breathalyzer (BAC) score of over, if not well over, the legal limit of .08.

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July 8, 2011

DUI in the Detroit Area - Is it a 2nd Offense, or not?

A fairly common question that arises in my DUI Practice is whether a Client's prior DUI occurred more or less than 7 years before the current case for which I am being hired. This is important, because a 2nd DUI within 7 years is treated as a 2nd Offense, whereas if the DUI occurs even 1 day past the 7-year mark, it is treated, by law, as a 1st Offense.

The consequences of a 2nd DUI within 7 years are substantial, at least when compared to those imposed in a 1st Offense case. While everyone's first concern is, understandably, to stay out of Jail, as a Lawyer for whom a substantial part of his Practice is Driver's License Restoration Cases, I tend to look a little deeper and worry about long-term consequences, as well.

scotch2.jpgIn that regard, the DUI consequences to Driver's License is perfectly clear: If a person is convicted (meaning they are found guilty of, or otherwise plead guilty to) 2 alcohol-related Offenses within a 7-year Period, their License will be Revoked. Technically speaking, that Revocation is for life. Although they become eligible to file for a License Appeal after 1 year has passed, if they do not file, and win, and no matter if 50 years go by, they cannot ever simply go to the Secretary of State and "get" a License. They must file for and win a License Appeal, first.

This becomes even more troublesome when you add in that the Secretary of State DOES NOT grant a License back to a person who is on Probation. In order to win a License Appeal, the Secretary of State requires a person to prove a period of voluntary abstinence, meaning a period of Sobriety where they were NOT subject to any legal or punitive consequences for drinking. This means that even if a person is not tested for alcohol, the State will deem any period of time that they were on Probation as NOT a demonstrable period of voluntary sobriety.

When you factor in that most Probationary Sentences in 2nd Offense cases are for 2 years (although it can sometimes be limited to just 1 year, particularly in Macomb and certain Wayne County courts), this means a person will be without a License for at least 2 ½ to 3 years. To me, that's a huge consequence, and perhaps the biggest (and certainly the longest lasting and most expensive) of them all.

The best way for me to determine if a person has had a prior DUI within 7 years, unless the Client is absolutely sure of the dates, is to review their Driving Record. In another blog article, I described how a person goes about obtaining their Driving Record for a License Appeal, but the same process applies for any reason a person may want to examine it, or have their Lawyer look it over.

Continue reading "DUI in the Detroit Area - Is it a 2nd Offense, or not? " »

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June 27, 2011

DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 2

In part 1 of this article, we began examining the probability of avoiding jail in 1st and 2nd Offense DUI cases. We saw that with the exception of 1 Judge in the 48th District Court in Bloomfield Hills, a 1st Offender can safely assume that they are NOT going to face any Jail time.

We next looked at 2nd Offense cases, and saw that, while Jail can usually be avoided in Macomb and Wayne Counties, things change if the case is pending in an Oakland County Court, and we also noted that, generally speaking, the farther north one goes, the worse things get.

jail2.jpgIn this second part, we'll pick up by looking at 3rd Offense cases, and we'll wrap up by looking at certain general principles that apply in all cases, be they 1st, 2nd or 3rd Offenses.

To begin, we should bear in mind that 3rd Offense (Felony) cases are an entirely different species from their 1st and 2nd Offense Misdemeanor relatives. Of course, part of that difference is that while 1st and 2nd Offense cases are Misdemeanors, meaning punishable only by a Sentence of either 93 days or 1 year in the County Jail, respectively, a 3rd Offense is a Felony that can carry a Prison Sentence of up to 5 years.

Before anyone starts fearing being carted off to Jackson Prison to start a new career in License Plate Manufacturing, it should be noted that a Prison Sentence is usually reserved for people with far more than 2 or 3 prior DUI's. The law does, however, require a person convicted of a 3rd Offense to serve at least 30 days in Jail. That's not negotiable.

The good news, if you can call it that, is that in Macomb County, a person who has only 2 prior DUI's , and who is facing a "true" 3rd Offense (meaning it is only the 3rd time they've ever been charged with a DUI) can, if things are handled correctly, avoid a Felony conviction altogether. In other words, a "true" 3rd Offense, if things are done right, can be reduced to a 2nd Offense Misdemeanor (and can, possibly, also avoid a Jail Sentence). This is not an option in Oakland County, and is seldom, if ever done in Wayne County. This is almost entirely a Macomb County deal.

Continue reading "DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 2" »

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June 24, 2011

DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 1

Amongst the various articles within the Drunk Driving section of this blog, I have addressed the issue of avoiding Jail in 1st Offense DUI cases, 2nd Offense cases, and 3rd Offense cases, albeit separately. It has been politely suggested to me that not everyone wants to engage in the kind of time consuming, in-depth research that I find so interesting, and that some would prefer a single, more overview-type article about staying out of Jail in DUI cases covering all 3 levels of the Offense. This 2-part article will be my best attempt to do that.

At the risk of being both repetitive and overbearing, it is, I think, worth pointing out that my experience as a DUI Lawyer spans more than 20 years. I don't handle Divorce cases (never have), Don't do Wills (never have), and don't sue anybody. The bread and butter of what I do is DUI and Driver's License Restoration (which itself arises from multiple DUI's). Accordingly, what I am about to describe below is the product of tremendous experience handling DUI cases. It's not merely a part of what I do; it is the very foundation of what I do, day-in and day-out.

Jail Cuffs 1.jpgThat said, in more recent years I have been able to restrict my DUI practice to the Tri-County area around Detroit. My Website's name, macombduidefense.com, should be a clue to that. I handle DUI cases in Macomb, Oakland and Wayne Counties. Once in a while, I'll take a case in Lapeer or St. Clair County, or even Livingston County, but I do not and will not go beyond these areas. As a result, some, or even much of what I say may not apply to cases pending in other Counties.

After being hired, the first thing any good DUI Lawyer is going to examine is whether there is some way to beat the charge, or have some of the evidence (usually from the Stop, the Field Sobriety Tests, or the Chemical Testing, meaning Breath or Blood) "thrown out."

Even if a challenge to the evidence may not result in an outright dismissal of the charge, it can possibly aid the Lawyer in getting the case knocked down to a non-alcohol traffic charge. To be truthful, this examination is (and should be) undertaken in every case, but finding such "problems" with the evidence is far more the exception, rather than the rule.

This means that the vast majority of DUI Arrests will hold up, and the person will have to deal with a DUI charge as a DUI charge. Still, it doesn't hurt to "dot the I's and cross the T's" and make sure that case is solid.

Continue reading "DUI - Staying out of Jail in Macomb, Oakland and Wayne Counties - Part 1" »

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June 13, 2011

Drunk Driving in Macomb, Oakland and Wayne Counties - the DUI Charge, Drinking, and Counseling

One of the most common questions I am asked as a DUI Lawyer is whether or not someone facing a DUI should get involved in some kind of Counseling. In a prior article, I examined some general rules about when a person should consider getting into counseling, when they absolutely ought to, and when it is really unnecessary. In that article, I examined Counseling and Treatment from a legally strategic point of view, with no reference to the actual needs of the Client. This (long) article will focus on the needs of a DUI Client relative to a potential drinking problem, and how those actual needs can sometimes seem to be at odds with the best legal strategy.

I have a rather extensive background in alcohol and substance abuse diagnosis and treatment. This field of study has been a specialty of mine for over 20 years. It is this specialized knowledge that has been the basis for my success as a Driver's License Restoration Attorney, a field in which I maintain a win rate so close to 100% that I guarantee I'll win any License Appeal I take. It is not my experience as a License Restoration Lawyer that makes me so knowledgeable about alcohol and substance abuse maters; rather it is my knowledge of those things that makes a better License Restoration Lawyer.

alcoholism1.jpgBased upon my 20-plus years' experience handling DUI and License Restoration cases, I have certainly honed the skills necessary to assess the best legal strategy for a Drunk Driving Client. However, as noted at the outset, the best legal strategy sometimes differs from the best choice to meet the personal needs of the Client. Let's examine the considerations, conflicts and matters of conscience that are part of the mix, and, at times, the dichotomy of being an "Attorney and Counselor at Law."

We sometimes confuse the notion of a "good" Lawyer with someone who is bold and aggressive. Those qualities are, on occasion, necessary when defending someone, but as personality traits they are rather standoffish. Unfortunately, the media too often gives airtime to those Lawyers who are simply brash, confrontational and loud. If there is one lesson I have learned well as a Practicing Lawyer, it is that the most successful people in any field, be it business, sales, politics or even law, are those who win people over by persuasion, and not by intimidation. Being argumentative and loud may attract attention, but it does not attract much else.

I have often likened my job to being a diplomat. In a DUI case, I have to temper my Client's hopes of simply beating the case, and I have to temper the Prosecutor's ambition to convict the person of everything under the sun, and lock them up for it. Except for those lucky occasions when there is a significant enough defect in the evidence to get the case knocked out, I explain the realities of the situation to my Client, and I thereafter persuade the Prosecutor and the Judge to take it easy on the Client, essentially brokering a deal that both sides can live with.

Part of that "diplomatic" role I play is to earn the Client's trust, and to not offend them, or in any way put them off. This means that when I meet someone who clearly has a drinking problem, but is likewise clearly in denial, I don't just bull-rush in and scare them off with a lecture that will only fall on deaf ears, anyway. Instead, I gauge the person's receptiveness to the suggestion that they might want or need to look at themselves from a different perspective, and proceed accordingly.

That sounds straightforward enough, right?

Continue reading "Drunk Driving in Macomb, Oakland and Wayne Counties - the DUI Charge, Drinking, and Counseling" »

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June 10, 2011

Getting Better Results in DUI Cases in Macomb, Oakland and Wayne Counties - Part 2

In part 1 of this article, we began examining the PSI process and the role of the Alcohol Assessment Test in DUI cases. We'll continue with a more detailed discussion of the Alcohol Assessment Test and the role of the Probation Officer is determining what happens to a person facing a DUI.

People often ask if doing well on an Alcohol Assessment Test is more a matter of common-sense than anything else. To a degree, it is, but there's way more to it than that. From a clinical point of view, a standardized Alcohol Assessment Test looks for and measures 5 traits, or markers, of an alcohol problem. If a person is NOT thoroughly familiar with these 5 "markers," and cannot explain them and their implications in detail, then they are just going though the Assessment blindly. Again, it takes hours to go over this stuff, but the 5 "traits" or "markers" of an alcohol problem are:

    ToughQuestions1.jpg
  1. Family History of Alcoholism,
  2. Instances of Social Comment,
  3. History of Blackouts,
  4. Instances of Social Conflict, and
  5. Increasing Effects Threshold.

Preparing the Client for the Assessment Test, and how that Test will measure these things, is absolutely paramount to minimizing the consequences they will endure as a result of a DUI.

This means that if a person is not properly prepared for an Alcohol Assessment Test, and they'll go in to Probation and do, at best, an "okay" job on the Alcohol Assessment Test and in the PSI Interview.

As a result, they'll wind up with an Assessment Report and Recommendation that looks far worse than it would have if they had been properly prepared for the Alcohol Assessment and PSI Interview. A typical example would be something like this:

Continue reading "Getting Better Results in DUI Cases in Macomb, Oakland and Wayne Counties - Part 2" »

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June 6, 2011

Getting Better Results in DUI Cases in Macomb, Oakland and Wayne Counties - Part 1

In previous articles about Drunk Driving, I have pointed out that the most important "step" in a DUI case is the legally required alcohol assessment. Lately, within the context of my DUI Practice, I have handled an increasingly large number of 2nd Offense cases for people who had some other Lawyer represent them in their 1st case. I have repeatedly been told by them that their prior Lawyer never so much as mentioned preparing them for this step (the Alcohol Assessment). Then, when they came across my blog articles describing how important this step is, and how much of what happens at this point affects the outcome of the case, they immediately recognized, from their prior experience, how true this is, and called me.

In previous articles, I have outlined the steps in a DUI case. This article, which will be separated into 2 parts, will focus on one of those steps: The Pre-Sentence Investigation and the Alcohol Assessment Test that is a required part of that.

Interview 2.1.jpgMore than 20 years ago, as a young Lawyer handling DUI cases, I saw that what actually happened to the Client in a DUI case, meaning the results of a person's Sentencing, was almost identical to what was Recommended as a Sentence by the Probation Department.

In a DUI case, after a person has worked out some kind of Plea arrangement, the Court sets 2 dates. The first of those dates is a return date for the Client, and the Client alone, to come back to the Court for an interview with a Probation Officer, who has the job of preparing a written Recommendation for the Judge to be used at Sentencing. The Law requires that such a Recommendation be based upon the person's score on an Alcohol Assessment Test.

This means that a person will show up to the Court's Probation Department, take a written Assessment Test, fill out an information packet which asks about their background (a short life-history), and then meet with a Probation Officer for an interview. This process is called a "PSI," meaning Pre-Sentence Investigation. The result of this whole process is a written Sentencing Recommendation to the Judge indicating what should be Ordered for each particular person facing a DUI.

The second of those dates is the Sentencing itself, where the Judge decides what will be done to the person facing the DUI. And the reality of the situation is that in each and every Court out there, and in each and every case, the Judge will follow that Sentencing Recommendation, if not to the letter, then darn close to it.

Continue reading "Getting Better Results in DUI Cases in Macomb, Oakland and Wayne Counties - Part 1" »

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May 27, 2011

DUI in Macomb County -vs- DUI in Oakland County

As a DUI Lawyer, I am in Court almost every day. Ask any Lawyer who has a DUI Practice, and you'll soon find that each and every one will note a profound difference in the way these cases are handled in Macomb County as opposed to Oakland County. Right down to the garden-variety Drunk Driving case, the differences between the 2 Counties are so significant that it almost makes the Lawyer feel like he or she is Practicing in 2 different States.

It is a well-known fact that Oakland County is the toughest of the 3 "Tri-Counties" in which to face a Criminal charge. In DUI cases, that difference is often made clear even before the person even Bonds out of Jail.

DUI Arrest.jpgIn most DUI cases, a person is Arrested in the evening, and typically let out of Jail sometime the next morning. Most often, the person will either post a small Bond (frequently about $100) at the Police Station, or simply be let go with a Notice to contact the Court within 10 or 14 days.

Sometimes, however, a person will be Arraigned, often by video, by a Judge or Magistrate, before they are let out of Jail. In those cases, the Judge sets a Bond amount, and imposes various Bond Conditions. Those conditions always include not leaving the State without prior permission of the Court, and no use of alcohol or drugs. Sometimes, especially in cases involving a 2nd or 3rd Offense, or those involving a high BAC result, those conditions include breath or urine testing. Such testing is far less frequent in Macomb County than it is in Oakland County.

Once the person and their Lawyer come to Court to begin resolving the case, the differences become more pronounced. In those 1st Offense cases brought by a State Police Arrest, the County Prosecutor, as opposed to a local City Attorney handles the charge. In Oakland County, it begins to becomes more difficult to get a Plea Bargain to Impaired Driving when a person's BAC (Breath Test Result) goes above a .12. In Macomb, the general cutoff for that kind of a deal goes up to about .16. Of course, exceptions abound, and the reason a person pays a Lawyer is to try and get one of those "exceptions" in the first place. Still, facing that kind of hurdle at the outset of a case is only a sign of things to come.

Even in a 1st Offense case, for example, where a Plea Bargain to Impaired Driving is worked out, what actually happens to the person can be strikingly different in one County as opposed to the other.

Continue reading "DUI in Macomb County -vs- DUI in Oakland County" »

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May 16, 2011

DUI Charges in Michigan - Dealing with the Emotional Considerations

For all the analysis of DUI cases one can find, I have yet to see anything that tries to look at such a case from the point of view of the person facing the charge. Even within the body of articles in the Drunk Driving section of this blog, I have tried to look at these cases from the point of view of the Judge, the Probation Officer, and even the Police Officer, or at least how the person charged with a DUI should "see" those parties. This article will attempt to do a 180-degree turn and try and get in the head of the person facing the DUI as they grapple with the emotional and psychological considerations of being dragged through the Criminal Justice System.

After more than 20 years of handling DUI cases, I have personally met with and handled the cases for thousands of people dealing with this charge. I have, I think, seen it all, from those who seem rather unfazed by the whole thing to those who break down and cry at almost every turn. It's a safe bet that anyone who has read this far is NOT the kind of person "unfazed" by a DUI, and our focus, therefore, will be on those who feel some kind of emotional burden along with the various practical considerations that come along with a DUI.

Good Person 2.jpgEveryone knows that a DUI is a Criminal matter. Only those who have been Arrested for a DUI, however, have any first-hand knowledge of what its like to suddenly feel like a Criminal.

From the first moment of Police contact, a DUI driver experiences a sense of loss of control. At first, many people may think they can still "get out" of the Traffic Stop, but they soon begin to realize that is not likely to happen. Once they are told to step out of the car, a person starts to feel less and less in control of their own destiny. By the time they're in the back of the Police car, they realize that they have essentially no control over what is going to be happening, at least for a while.

Perhaps the first "punch in the gut" comes when a person is placed in handcuffs. At that point, as they often relate to me, they feel "degraded" and embarrassed. Being placed back into the Police car in cuffs often starts a panic response on the inside, even if they maintain a straight face on the outside. Their mind is whirling as they get driven to the Police Station.

Once they start being processed at the Police Station, most people feel a strong mixture of apprehension, or outright fear, and complete embarrassment. Maybe in their day-to-day life they are someone important. Maybe they tell other people what to do, or how to do things, or have a lot or responsibility. Why hasn't someone seen that they are, at their core, a good person?

Continue reading "DUI Charges in Michigan - Dealing with the Emotional Considerations" »

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April 29, 2011

The Role of Police Video in a Michigan DUI Case - Part 2

In part 1 of this article, we began examining the role of in-car Police video in DUI cases. We left off after reviewing the role of in-car video right up through the Traffic Stop. In this 2nd part, we'll pick up with what typically follows in any DUI Traffic Stop, the Field Sobriety Tests.

Beyond the Traffic Stop itself, in-car video can record the Field Sobriety Tests. In these cases, the audio is also important. Therefore, it shouldn't come a surprise that in any number of these videos I've obtained, there was no audio, or the Sobriety Tests were performed outside the angle of view of the in-car camera.

Cop Video 2.jpgTo be fair, in most of the videos I've seen and heard, the Client has, to put it nicely, not been at their best. Told, for example, to count backward from 89 to 72, the Client will continue on past 72 into the 60's. Letters are skipped during alphabet recitals. "I've seen enough. Turn it off" is a request that has been made of me any number of times while the Client and I watched the video.

Again, even if the video offers no help in avoiding a DUI, it does bring a certain peace of mind to the Client, because they can at least move beyond any belief (or clouded memory) that they did "fine."

Although it may be exception, rather than the rule, finding that video where the Client does just fine is a bonus. It's like finding a pound of gold in a ton of dirt.

Before any of this can be done, however, it must be determined whether or not there was any in-car video. As a general rule, most Police departments will "recycle," or erase over any video in about 30 days after it is recorded. This means a person must not delay in hiring a Lawyer to make that inquiry to prevent destruction of this evidence.

Which should bring to mind two very important questions. Why would the Police destroy any video that supports their case? Wouldn't they really only be interested in getting rid of any video that did NOT help their case?

Continue reading "The Role of Police Video in a Michigan DUI Case - Part 2" »

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April 25, 2011

The Role of Police Video in a Michigan DUI Case - Part 1

In my capacity as a DUI Lawyer, I have read, in my 20-plus years, thousands upon thousands of Police Reports. Careful examination of the Police Report in any DUI case is absolutely essential to proper handling of the case. In the last number of years, however, the presence of Police in-car video has added another ingredient to the mix of things that must be reviewed by the Attorney before any plan of intelligent action can be formulated. This article will be a bit longer than most of the others in the Drunk Driving section of this blog, and therefore will be divided into 2 parts.

We live in a video world. The advent of shows like "Cops" introduced us to seeing Police in action. And if you want to take about media "bias," how often do you see Police video of innocent people being questioned, and the let go? Short of the Rodney King video, and perhaps a few other examples of Police misconduct, all captured by third parties, by the way, we've essentially been trained to expect Police video to demonstrate guilt.

Cop Video.pngIf you tune in to the local news, and there is Police video being run as part of any story, it almost always shows the Police arresting someone who should be arrested. DUI drivers are shown as staggering, and if there's audio, you hear them slurring their speech, or sounding otherwise drunk.

In DUI cases, it is not uncommon for me to be asked by a new Client, before I ever even get that far, about the Police video. "Can you get it? I'd like to see it."

In-car Police video has the potential to derail a DUI prosecution more than any other single piece of evidence. Admittedly, those examples of cases where the Police video contradicts the Officer's written version of events aren't very common, but for an investment of about $50, it amounts to a small price that can result in a huge payoff.

It is important to note, however, that Police are not required to have video-equipped Police cars. And even if the car has such equipment, there is no Law requiring that it be operational.

In the real world, Police video can really impact 2 major areas of a DUI arrest: The initial Traffic Stop, and the Field Sobriety Tests.

Continue reading "The Role of Police Video in a Michigan DUI Case - Part 1" »

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April 15, 2011

DUI in Macomb, Oakland and Wayne Counties - How Things Have Changed

As a DUI Lawyer who has been in practice for over 20 years, I have seen the landscape of the whole Drinking and Driving field change considerably over that time period. Within the body of articles in the Drunk Driving section of this Blog, I have covered many aspects of DUI cases, from the Traffic Stop, to the Field Sobriety Tests, to the actual Breath Test, right up and through how a DUI case is handled in Court, including the Alcohol Assessment Test, how and why that is so important, the steps in the DUI process, through what actually happens to the Driver in Court.

This article will not be as informational as are most of my others. Instead, my aim here is to look at how the DUI world has changed in the last 2 decades. I don't do this because I'm getting long in the tooth, or anything like that. Recently, a number of my DUI Clients have come to me with a prior DUI conviction or two from many years past, and can hardly believe what I'm telling them about how these cases are handled today.

The Past1.jpgTo start with an example, I remember well when many Judges, in Sentencing someone for a DUI, would Order, as a condition of Probation, that the person simply NOT drink and drive. Today, there isn't a single Judge who does not, as a matter of course, Order a person to not drink at all during the term of Probation. In the overwhelming majority of cases, including most 1st Offenses and all 2nd and 3rd Offenses, this is backed up by an order for breath and/or urine testing. Sometimes this testing is done at random, other times it is carried out more regularly.

A number of years ago (okay, at this point I'll admit I've been doing this so long that I don't remember exactly when) a few Courts would order someone with a DUI to complete an "Impact Panel," often called a "Victim's Impact Panel." Now, every single Court, without exception, includes this as part of the punishment for a DUI. If the Pope got a DUI, the Judge might kiss his ring, but he or she would next order His Holiness to complete an Impact Panel.

Similarly, there has been an explosion of "Classes." With names Like Alcohol Highway Safety Class, to Alcohol Awareness Class, to what's called the ARM (which stands for Accepting Responsibility is Mandatory) Class, there seems to be no end to the kinds of Alcohol Education Classes a DUI Driver faces.

Today, just paying Fines and Costs is a relatively rare exception. 15 or 20 years ago, it was far more common.

Continue reading "DUI in Macomb, Oakland and Wayne Counties - How Things Have Changed" »

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March 14, 2011

How High BAC (.17 and Above) DUI Cases in the Detroit-Area are Being Handled

Most people have already heard about the recent change in Michigan's DUI Law increasing the Charge and Penalties for what's called a High BAC case, meaning any case where a person's Bodily Alcohol Content (BAC) is .17 or above. The new Law adds a whole new, intermediate Drunk Driving offense to the palette of DUI Laws and consequences already in place.

This article will focus on how these charges are being handled in the Local Courts of Macomb, Oakland and Wayne Counties. In other words, what happens when a person is Stopped and Arrested in the Detroit-area for DUI and their breath or blood test results (BAC) are .17 or above.

Breath Test1.2.jpgIn that regard, perhaps the first, and most important distinction we need to make in this examination is the difference between a .17 or higher BAC result, and a .17 or higher BAC charge. This distinction is HUGE.

As it turns out, the way the Law works, most 1st Offense DUI charges are Ordinance Violations, meaning there is a Local (City, Township or Village) Law against Drunk Driving. There are, or course, a number of State Laws that prohibits Drunk Driving, but the key difference between being charged under State Law, or a corresponding Local Ordinance is that the Fines assessed in any given case go to whichever entity brings the charge. This is going to requires some discussion:

Under Michigan Law, municipalities can enact Criminal Ordinances of all kinds. They cannot however, make a Law that punishes a Crime by anything more than 93 days in Jail. There are all kinds of subtleties and technicalities involved in this, but we'll skip those in favor of a more simple explanation.

State Law punishes a 1st Offense DUI by up to 93 days in Jail. Any Municipality can likewise enact its own ordinance punishing a 1st DUI by up to 93 days in Jail. When a Police Officer Arrests someone for DUI, he or she can either write them up under the Ordinance of the Municipality in which the Arrest is made (usually, the City of Township for which they work), or under the State Law. The State Police, for example, always write up any DUI under the State Law. The Clinton Township Police Department, however, will write up a 1st Offender under the Township Ordinance. This makes the Fines assessed by the Court payable to the Township. In the case where the State Police write someone up for DUI, the Fines go to the State.

Continue reading "How High BAC (.17 and Above) DUI Cases in the Detroit-Area are Being Handled" »

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March 4, 2011

3rd Offense (Felony) DUI cases and the Realities of Jail, or not - Part 2

In part 1 of this article, we looked at how the particular County in which a person's 3rd offense DUI charge is pending plays an important role in how things ultimately turn out. In this second part, we'll begin examining why the threat of being sent to Prison is more bark than bite, and what kind of Sentences are really passed out in 3rd offense cases.

In the first part of this article, we confirmed the rather well-known fact that Oakland County is the toughest of the 3 local Counties in which to face a 3rd offense (Felony) DUI, or any DUI charge, for that matter.

holding on.jpgLet's hit the "pause" button here for a moment. If Oakland County is the toughest of the 3 Detroit area jurisdictions, and a person is realistically facing a deal where the worst case is about 100 to 150 days in Jail, what all that racket about "up to 5 years in Prison?"

In order to be sent to Prison for 5 years, a person must usually have a number of prior 3rd Offense DUI Felonies. In 20 years of handling DUI cases, I've never seen anyone with 2 or 3 prior DUI convictions be sent to the State Prison. Remember, Jail is where a person goes for up to a year, and Prison is where they're sent for a Sentence that calls for a minimum of 1 year. In other words, you have to be a really hard case to actually be facing a Prison term. This means that the overwhelming majority of 3rd offense DUI Offenders are facing, at worst, a Jail term, and not a Prison Sentence.

I think one of the most underrated components of successfully handling DUI cases involves the degree of the Defense Lawyer's enthusiasm for the Client. I might ruffle a few feathers here, but I strongly believe that it is extremely difficult, if not downright impossible, to switch sides and go from being a Police Officer, or a Prosecutor, to being a Defense Lawyer who has a real empathy for someone facing a DUI charge, particularly a 3rd Offense. To the Police, Drunk Drivers are (understandably) people best taken and kept off the streets. Prosecutors are the ones who try and keep them off the streets. An old investigator I once knew believed that those formative career years shape a person's natural disposition and can never be completely stripped away. His phrase about hat he perceived as the inability of a Prosecutor to become, heart and soul, a Defense Lawyer (or, for that matter, the other way around), is that "the die has already been cast."

For the most part, I agree with that, because it has always been my job to help my DUI Clients avoid any, or as much Jail as possible. I look for, and see the good in them, and share with them the regret for what's happened, and the fear for what is going to happen. I try with every fiber of my being to coax a better deal, or get a bigger break, or do whatever I can to make the outcome of their case as good and lenient as possible for them. If I suddenly became a Prosecutor, I would not be able to just not shake my concern for the person standing in front of the Judge, even though my job would be to make it tough on them. In short, I'd make a lousy Prosecutor because I just couldn't invest my whole heart into what I was doing. I picked my side long ago. The die, in other words, has already been cast.

Continue reading "3rd Offense (Felony) DUI cases and the Realities of Jail, or not - Part 2" »

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February 28, 2011

3rd Offense (Felony) DUI cases and the Realities of Jail, or not - Part 1

This article will examine 3rd Offense (Felony) DUI cases. I have written extensively about 1st and 2nd Offense DUI cases in the Drunk Driving section of my blog. This article will examine the most serious of all DUI charges not involving a death or serious injury. Because this is an important subject, this article will be long, and divided into 2 parts.

Having been a DUI Lawyer for over 20 years, I know firsthand that absolutely no one needs to be reminded that a 3rd Offense DUI is serious business. My hope is to present a somewhat different perspective about these cases which, instead of focusing on how bad things are, or can be, will focus on how a 3rd Offense case can be handled in a way to minimize all the agony and misery so many other discussions seem to dwell upon.

Jail bench2.jpgAbout 4 years ago, on January 3, 2007, the Michigan Law regarding 3rd Offense Drunk Driving charges was drastically changed. Prior to that date, a person had to accumulate 3 alcohol-related traffic offenses within a 10-year period to be charged with a Felony. In other words, a person needed 2 prior DUI's (or, more specifically, alcohol-related traffic offenses, because a "zero tolerance" conviction could count as a prior offense) and then acquire a 3rd, all within 10 years, before the 3rd Offense Felony charge could be brought.

On January 3, 2007, what is known as "Heidi's Law" took effect. The purpose and effect of this law was to abolish the 10-year limitation for bringing a Felony DUI charge. Instead, ANY combination of 3 DUI's within a person's lifetime was enough to make that 3rd Offense charge a Felony. To this day, while many people know this, many do not.

What cuts across every 3rd Offense case is that sinking feeling a person has when they hear the words "Felony" and "up to 5 years in Prison." As I noted, everyone facing a 3rd offense DUI knows that things are not looking particularly rosy at the moment. And while there's no way to turn any DUI charge, much less a 3rd Offense, into a pleasant experience, there are plenty of things that can be done to avoid much of the unpleasantness a person fears. Even the most "red-handed" and clear-cut cases can be worked out in a way to not ruin a person's life. It may not feel that way at the moment, but there is light at the end of the tunnel.

This article will concentrate on those cases where there is no viable challenge to the stop, the arrest, or the evidence. You could literally write volumes about all the things that could be wrong with a DUI case and could be used to beat the charge, or be acquitted at Trial. However, and statistically speaking, those cases which are thrown out of Court, or in which a person "beats" the charge, are far and away the exception, and not the rule. This article is about real hope in real cases, not hope for a miracle in the once-in-a-blue-moon kind of case.

Continue reading "3rd Offense (Felony) DUI cases and the Realities of Jail, or not - Part 1" »

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February 25, 2011

Staying out of Jail in a 2nd Offense DUI Case in Metro-Detroit

I have written a number of articles about DUI's in general, and 2nd Offense DUI's in particular. This article will focus on only one, and by far the most important aspect of 2nd Offense DUI cases: Staying out of Jail.

My DUI Practice involves handling loads or 1st Offense cases, plenty of 2nd Offense cases, and a good share of 3rd Offense (Felony) cases. Handling a typical 2nd Offense case is often more challenging than handling either a 1st or a 3rd Offense. The reason for this is quite simple; staying out of Jail in a 1st Offense case is pretty much in the bag in all but the rarest of circumstances, and staying out of Jail in a 3rd Offense case (assuming its not plea-bargained to a 2nd Offense case) is legally impossible, short of going to Trial and being acquitted of the charge. A 2nd Offense case puts a person as close as they can get to Jail, without any legal requirement that they actually be put in.

Jail color2.jpgTo be clear, the first inquiry that should be made by a Lawyer handling any DUI case is whether or not there is some way to have the case "knocked out." This means looking closely at the Police Stop, and at the method by which any breath or blood evidence was collected and/or analyzed. Statistically speaking, and all opinions and "sales pitches" aside, those cases in which the evidence can be successfully challenged to the point of getting a DUI case dismissed are far and away the exception, and not the rule. The vast majority of DUI Arrests are not going to be thrown out of Court, dismissed or beaten on some technicality.

This means that, unless a person gets really lucky, and the case is so compromised that the Judge decides to throw it out, it will ultimately be up to the Judge to decide what to do with a 2nd Offender. And you cannot escape the sinking feeling that, whatever kind of Sentence a person received for their 1st Offense, it apparently wasn't enough. This puts a person standing before the Judge right in the crosshairs of a Jail Sentence.

Not surprisingly, most people instinctively know this. When I speak with someone who is hiring me to handle their 2nd Offense DUI, there is one primary concern they have, and reason for hiring me, and that's to stay out of Jail. The good news is that, with the right work, most people facing a 2nd Offense DUI can be kept out of Jail. The key element to this is "the right work."

In another group of articles about 2nd Offense DUI and the issue of a Drinking Problem, I pointed out that a person facing a 2nd DUI needs to understand that the Law presumes, and the Judicial system perceives them as having a problem. A 2nd Offense within 7 years is considered a "habitual offender" violation and results in the REVOCATION, and not merely the Suspension, of the Driver's License for at least 1 year, with no possibility of Appeal. Part of that "habitual offender" status is the additional legal requirement that a person with a 2nd DUI within 7 years be Court Ordered into some kind of Counseling and/or Treatment. And let's be clear; the Law REQUIRES Counseling or Treatment, it does not merely suggest it.

Continue reading "Staying out of Jail in a 2nd Offense DUI Case in Metro-Detroit" »

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January 24, 2011

Do I Really Need a Lawyer for a DUI in Metro-Detroit? - Part 2

In part 1 of this article, we began examining the question "Do I need a Lawyer for this?" in a DUI Case. We looked at a few reasons why a person might really consider going it alone, and we examined a few risks to going into a DUI case unrepresented. In this 2nd part of the article, we'll take a closer look at what a good, qualified DUI Lawyer brings to the table in a DUI case, and why not having that kind of help places someone at a distinct disadvantage. We left off examining the role of the PSI (Pre-Sentence Investigation) and the mandatory Alcohol Assessment and how the outcome of those processes essentially results in the "blue-print" for what's going to happen to someone in a DUI Case.

If a person can have the help of a Lawyer who knows every facet of the PSI process, and fundamentally knows what specific information is being sought in an Alcohol Assessment Test, and how to score as low on it as possible, then what will happen to them in a DUI Case will be much better (meaning lenient), all other factors aside, than would be the case if they tried it alone.

Lawyer_handshake2.jpgThe Alcohol Assessment Tests all focus on five "traits" or "markers" used in identifying an actual or potential alcohol problem:

1. Biological History,

2. Social Comment,

3. Memory Integrity,

4. Social Conflict, and

5. Effects Threshold.

Learning the meaning and application of these terms is the first step in preparing to produce a good (or low) score on whichever test is administered. And a good DUI Lawyer will have an active, working knowledge of these principles, and be in a position to teach the Client. Unfortunately, too few of those who style themselves as DUI Lawyers know the first thing about any of this. This should be a important consideration as someone "shops" around for a Lawyer.

In terms of "outcomes," a person who is properly prepared (and in my Office, this takes about 2 hours) for an Alcohol Assessment Test will usually be able to score the lowest number of points possible. There will always be some points assessed, because one of the questions asked by any test is whether or not the person taking it has ever been Arrested for any Alcohol-Related Traffic Offense. You already know the answer to that one.

What's more, some of the questions are "better" answered in a way that seems counter-intuitive. In other words, the answer that might first appear to be "common sense" may, in fact, add points to a person's score. These tests are designed to diagnose either an actual or potential alcohol problem in someone who might be very resistant to that idea. In other words, these tests take into account that a person may try to "fool" it.

Continue reading "Do I Really Need a Lawyer for a DUI in Metro-Detroit? - Part 2" »

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January 21, 2011

Do I Really Need a Lawyer for a DUI in Metro-Detroit? - Part 1

As a DUI Lawyer, I get calls on a daily basis from people who've recently been Arrested for a Drinking and Driving Offense. One goal of the Drunk Driving section of this blog has been to address the questions that I am frequently asked. Lately, and no doubt because of the tight economy, a number of people have candidly asked "Do I need a Lawyer for this?" This article, divided into 2 parts, will examine that question.

Rather than go in the predicable direction of listing all the things that can go wrong without a Lawyer, I thought we'd start by looking at a few aspects of a typical DUI case that can actually work out favorably even without Legal Representation. Then, we'll examine exactly what a good DUI Lawyer can and will do in every case to make the outcome better than if a person had gone forward unrepresented by a Lawyer.

pondering3.pngFor the uninitiated, even the steps in a DUI Case are mysterious. In practice, however, many of those who get to the point of asking whether or not they can proceed without a Lawyer are generally smart individuals who have done their homework. They've often read all kinds of articles (including mine) about DUI's, and are somewhat familiar with the steps in a typical DUI case. Here are a few things they often learn that supports their idea of going it alone:

1. Most DUI cases are resolved by a Plea Bargain, and without any kind of Trial.

2. Some Prosecutors will not restrict the offer of a Plea Bargain to only those individuals with a Lawyer.

3. Virtually no one winds up doing Jail time in a 1st Offense DUI case.

Looking at those facts alone, the idea of spending a few thousand dollars on a Lawyer might change from an automatic response after a DUI Arrest, to something that needs a bit of consideration before a decision is made.

In terms of risks in proceeding unrepresented, let's look at a few:

1. Some Prosecutors will not offer the same quality Plea Bargain, if any, to an unrepresented person.

2. A non-Lawyer might miss a critical problem in the Evidence that could be trouble for the Prosecutor's case.

3. The Judge may not be very enthused dealing with someone choosing to "play Lawyer."

These considerations are enlightening, but do not answer the question "Do I need a Lawyer for this?"

Continue reading "Do I Really Need a Lawyer for a DUI in Metro-Detroit? - Part 1" »

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January 15, 2011

St. Clair Shores DUI cases - the 40th District Court

This is the final article in my series about DUI Cases in local, Macomb County District Courts. I have saved this Court for last because, in all truth, it's about the toughest of all Macomb County District Courts on DUI cases.

Located on 11 Mile Road, at Jefferson, the St. Clair Shores (or, as its commonly called, the "Shores") District Court is run by 2 Judges, Cragen Oster and Mark Fratarcangeli. From my perspective, as a veteran DUI Lawyer with over 20 years' experience, these Judges represent the "younger" and more modern trend. Technologically savvy, this is not the same 40th District Court of a decade earlier.

Shores.jpgBoth Judges are the very definition of fairness and kindness. Even though this Court tends to hit a DUI Defendant harder than most in the County, you'll NEVER meet anyone who claims either of these Judges treated them unfairly, or was anything less that kind and polite.

Judge Craigen Oster has an ability to really converse with those who come before him. And he does that. Rather than just "pronounce" a Sentence, or simply tell a Defendant "This is what I'm going to do," Judge Oster tries to engage the person in some dialogue in the hopes of having them come to a better understanding of the need to change their behavior to avoid further problems. Ask anyone who has had him as their Judge, and they'll inevitably say that he's "a nice guy."

Judge Mark Fratarcangeli is equally "a nice guy." However, he is a strong believer in being proactive in alcohol and drug cases. Perhaps more than any other Judge anywhere, he has a stronger "nose" to sniff out BS. In other words, he's heard it all, but in a very careful and practical way, tends to operate in the belief that, whatever a person says, or promises, its what they ultimately do that matters. In that regard, he embodies the old adage that "the proof is in the pudding."

And this is partly what I meant when I noted these Judge's are more part of a "modern trend." After all is said and done, I am a DUI Lawyer. I help people facing DUI's get out of that bad situation with as little grief as possible. This means I will always find a more lenient outcome, or one with less "stuff" like Classes, Counseling and Testing, to be better. To me, the less that happens to a DUI Defendant, the better.

Continue reading "St. Clair Shores DUI cases - the 40th District Court" »

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January 10, 2011

Eastpointe DUI Cases - the 38th District Court

In this 8th, and next-to-last article in my series about DUI cases in local, Macomb County Courts, we'll take a look at the 38th District Court in Eastpointe. Formerly a "Municipal" (meaning part-time) Court, the caseload in Eastpointe had long ago grown to the point that a full-time District Court was needed.

Since this article is an overview of the Court, rather than the DUI process in general, anyone seeking more information about DUI's should read the Drunk Driving section of this blog, and scroll down, past the local Macomb County Court ratings, and read those articles which apply to their situation.

Located on Nine Mile Rd., the 38th District Court anchors the southernmost part of Macomb County. Although it may be a bit away from the County seat in Mt. Clemens (where my Office is located), the Eastpointe Court is solidly "Macomb County," and that's a good thing.

Judge Gerds4.jpgElected to the Bench in 2009, the Court is headed by Judge Carl Gerds. Like Judge William Hackel in the 42-2 District Court in New Baltimore, this guy is a gift. Judge Gerds is a "real guy" in every sense of the word, and you couldn't find a someone with a bad thing to say about him if you spoke to every person on the planet. Intelligent, and personable, Judge Gerds took the Bench after a long and successful career as a Private Lawyer. His down-to-earth approach allows him to speak to those Appearing before him as real, regular people. In other words, he'll never "talk down" to anyone.

Judge Gerds, like Judge LeDuc in the 42-1 District Court in Romeo, tends to be "fatherly" in his approach to DUI Defendants. This means that beyond being intelligent and nice, but firm, he actually and obviously cares about those that come before him.

His kindness, however, should not be confused with any lack of resolve. Anyone who Violates a term of his Probation will get a quick lesson in Jail etiquette.

In a 1st Offense DUI, Jude Gerds, like most of the Judges that make being a Macomb County Lawyer such a plus, is more than willing to give anyone a break and chalk things up to a misjudgment. This means a 1st time DUI Offender can, if their case is handled properly, not only avoid Jail, but either avoid Probation altogether, or at least avoid difficult "Probation from Hell" and even wind up on Non-Reporting Probation.

2nd Offense DUI's are not quite so easy. When a person appears before Judge Gerds for a DUI 2nd Offense, they had better have been adequately prepared by their Lawyer before they ever even walk into Court. If that's done, however, a DUI 2nd can be worked out to not only avoid Jail, but to keep the terms of any Probation manageable.

Continue reading "Eastpointe DUI Cases - the 38th District Court" »

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January 7, 2011

DUI Cases in Warren and Centerline - the 37th District Court

In this 7th of my 9-part series about DUI Cases in local, Macomb County District Courts, we'll turn our attention to the County's largest District Court, the 37th District Court in Warren. We'll also include a look at the 37th District Court's "outpost" in the City of Centerline. Because the same Judges as the Warren Court staffs it, the Centerline Court is basically the same thing in a smaller, different building.

Any discussion of the Warren Court must begin by noting how busy it is. While every other Court in Macomb County has a parking lot, the Warren Court has a parking structure. Usually, the busier a place, the less efficient it is. Not so in Warren. Despite its huge caseload, this Court maintains the feel, at least for those of us local, Macomb County Attorneys, of a much smaller community Court.

Warren2.jpgThere are 4 Judges in Warren, and despite being rather diverse in personality type, they are, as a group, amongst the nicest around. You will not find a Macomb County DUI Lawyer who has a bad thing to say about handling DUI Cases in Warren. Except for the fact that, because of the large caseload, things can, understandably, get bogged down a bit (someone has to be first, and someone last...), this Court is always amongst every Lawyer's favorite. But it's also a great place to be, if you have to be anywhere, to deal with a DUI. And as I've noted before, my ratings in this series is based upon how I'd feel as a DUI Defendant, and not as a Lawyer, if I had to face a DUI in any particular Court. In other words, there are Courts I can deal with that are efficient and pleasant and prompt, but aren't so easy on the Client. That's great for me, but I'm paid to take care of the Client, so it's how easy or tough things are for them that is the measure of my ratings.

Anyone facing a DUI, whether in Warren, Centerline, or anywhere else, should scroll through the Drunk Driving section of my Blog, past the Local Court information, and read the articles that are relevant to them.

Let's take a look at the 4 Judges of the 37th District Court:

Continue reading "DUI Cases in Warren and Centerline - the 37th District Court" »

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January 4, 2011

Facing a DUI in Roseville or Fraser - the 39th District Court

As I continue this series about DUI cases in local, Macomb County District Courts, we'll turn our attention to the cities of Roseville and Fraser. All DUI cases brought in either Roseville or Fraser are heard and handled in the 39th District Court on Gratiot, in Roseville.

Getting a DUI is no fun. Anyone facing one should take the time to at least read my other articles about Drunk Driving. Winding up in a hard-line, unsympathetic Court only feels like having insult added to injury. And while there is no way to turn back the hands of time and undo a DUI Arrest, at least having the case land in the 39th District Court is the first light at the end of the tunnel. This is about as pleasant and decent a Court as you'll find anywhere.

Scales-of-justice2.jpgThere are 3 Judges presiding in the 39th District Court. They are far from being clones of each other, but despite their differences, there is really no reason to prefer any one Judge over another. In other words, their Sentences in DUI cases are pretty well consistent, and pretty fair, all things considered.

Judge Cathy Steenland has been on the Bench for about 8 years. In that time, she has proven to be one of the most capable Judges when it comes to relating to and speaking candidly with those that appear before her. Her temperament is always favorable. Sure, there is always some moron who can test a Judge's patience to the limit, but once that person has been dealt with, Judge Steenland has an unmatched ability to clear her head and smile at the next person up. And in that regard, you'll never meet anyone who claims to have been treated harshly, or unfairly by her.

Part of that ability to speak candidly, however, is the ability to call someone when they are shoveling the B.S. her way. Judge Steenland's pleasant disposition is not a product of naivete. Instead, she converses with those in front of her, and usually passes down a Sentence that seems more the product of an agreement between her and the Defendant rather than some Royal Decree read to some poor subject.

For all of that though, as with most Judges, any breaks handed out need to be appreciated, and "earned" in the sense that the Defendant stays out of trouble while on Probation. Pick up a new case while on Probation, or start testing positive for Alcohol or Drugs, and you'll get a kind smile along with a Jail Sentence.

It is possible, if things are done right, to avoid Reporting Probation, or even any kind of Probation at all, in a 1st Offense DUI. That's not to say that such a deal is out there for everyone, but it can be worked out in the right cases.

Continue reading "Facing a DUI in Roseville or Fraser - the 39th District Court" »

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December 27, 2010

DUI in Armada, Armada Township, Bruce Township, Memphis, Ray Township, Richmond, Richmond Township, Romeo or Washington Township - The 42-1 District Court in Romeo

In this installment of my series about DUI in local, Macomb County District Courts, we'll turn to the 42nd District Court 1st Division in Romeo. Handling DUI cases from Armada, Armada Township, Bruce Township, Memphis, Ray Township, Richmond, Richmond Township, Romeo and Washington Township, this Court is most often simply referred to as "Romeo." Given the laundry list of Municipalities that in covers, we'll adopt that abbreviation. Thus, when we talk about the "Romeo" Court, we mean the 42-1 District Court in Romeo, but can be referring to a case arising in any of the Cities or Townships mentioned above.

Depending on where you live, this Court can either be really local, or really far. Located on 33 Mile Rd., it represents the northern-most reaches of geographic Macomb County. The Court itself is rather modern. The Court Staff is friendly, and really brings to mind a less big-city, and a more helpful, small-town type of character.

Judge LeDuc3.jpgThe Presiding Judge, Denis LeDuc, came to the Bench as a long-time veteran Macomb County Lawyer. Smart and hardworking, Judge LeDuc's intelligence and work ethic is only exceeded by his actual concern about those who appear before him. This man really wants to help people.

For anyone facing a DUI, that can represent either side of the coin, and be either a good thing, or a bit of a pain.

If a person is properly prepared and represented in a DUI case, it is possible to emerge from this Court, at least in a 1st Offense Case, with only the payment of Fines and Costs, and no Probation or any other kind of follow-up. On the other hand, a person not well represented or prepared, or whose case presents difficult circumstances (like being a DUI 2nd Offense), may wind up on some rather intense Probation, and be subject to Classes, Treatment, and Alcohol and/or Drug Testing ranging from infrequently to almost daily.

Like most Judges, Judge LeDuc tends to follow the written Recommendation of the Probation Department. In other blog articles, I have explained the DUI process in detail, so here it will have to suffice to simply observe that anyone facing a DUI must, prior to being Sentenced by the Judge, undergo a mandatory Alcohol Assessment Test. This is required by Michigan Law, and is administered by the Probation Department for whatever Court is Hearing the case. As part of this process, the Probation Department schedules an interview with the person, and collects some rather detailed biographical information about them. At some point there is both an in-person interview, as well as the taking of the actual Alcohol Assessment Test. This is a written test, which is "graded" by a numerical score. The higher a person scores, the worse they've done, whereas the lower they score, the better for them.

Continue reading "DUI in Armada, Armada Township, Bruce Township, Memphis, Ray Township, Richmond, Richmond Township, Romeo or Washington Township - The 42-1 District Court in Romeo" »

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December 20, 2010

DUI in Sterling Heights - the 41A District Court Sterling Division

In this article, which continues the series about DUI cases in local, Macomb County District Courts, we'll examine the 41A District Court in Sterling Heights. This is the "Sister-Court" to the subject of the last article, the 41A District Court in Shelby Township. Unlike Shelby, the Sterling Heights District Court covers just one City: Sterling Heights.

The 41A Sterling Court is staffed by 3 Judges. In this Court, which one of those 3 Judges winds up handling a 1st Offense DUI case can make a noticeable difference in how things play out. This is less so in 2nd Offense Cases. First, however, let's talk about some general similarities in 1st Offense DUI Cases.

SH Hall2.pngIn most 1st Offense DUI cases, the 41A Sterling Court can honestly be considered one of the best Courts to have to deal with such a Charge. With proper preparation and handling, many of the realistic consequences of a DUI can be avoided. When I say realistic consequences, I mean those things that are likely to happen in a DUI case, as opposed to those things that theoretically can happen. Let me explain:

In a 1st Offense DUI, a person can, theoretically, get up to 93 days in Jail. That never happens. Never. Even in the toughest Court I know of, in Oakland County, a person might get hammered with a week or so in Jail in a 1st Offense DUI. Thus, 93 days in Jail is not a realistic consequence in a 1st Offense DUI case.

On the other hand, if the Probation Department, after scoring the legally required alcohol assessment test, recommends to the Judge that a series of Classes, or some kind of Treatment is warranted, a person can pretty much plan on that being Ordered. Thus, Classes and Treatment are realistic consequences in a 1st Offense DUI case.

If a person is properly prepared from the very beginning, then many, if not most of those potential Classes and/or Treatment options can be avoided. This means no Jail, and perhaps even no (or fewer) Classes. This is where the assignment of a Judge can make a difference.

I like Practicing in this Court, and I like each of the 41A District Judges. They are well-qualified, experienced Judges. Each is personable, intelligent, decent, and genuinely caring. In other places, finding these qualities in 1 out of 3 Judges would be lucky, but to find it in each of the 3 here is a comparative blessing. Let's take a look at each:

Continue reading "DUI in Sterling Heights - the 41A District Court Sterling Division" »

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December 17, 2010

DUI in Shelby Twp., Utica, or Macomb Twp. - The 41-A District Court Shelby Division

The 41A District Court in Shelby Township will be the subject of this third article in my series about DUI cases in local, Macomb County District Courts. There are two 41A District Courts: The subject of this article, in Shelby Township, and it's counterpart, in Sterling Heights. The Shelby Division Hears cases arising in Utica, Macomb, and, of course, Shelby Township.

As a Lawyer who handles DUI cases there on a regular, ongoing basis, I know this Court as well as anyone, and certainly count it amongst my favorites. To be clear about that, as a DUI Attorney, I have a greater liking for those Courts where the outcome is more favorable (meaning more lenient) for my Client. This is definitely one of those Courts.

Judge Shepherd6.jpgLocated in a building much too small for its needs, the Shelby Court has been the subject of a rumored new building for years. Overseeing this Court is Judge Douglas Shepherd. Judge Shepherd was elected to the bench a number of years ago, upon the retirement of longtime Judge Herman Campbell. Judge Shepherd probably takes the cake in terms of being a nice man. Having been in Private Practice before becoming a Judge, and having done essentially what I do, Judge Shepherd understands the basic expectation involved in hiring a DUI Lawyer: "I will pay your Fee, and you go and make things better for me." More quiet than boisterous, it isn't hard to imagine him having pursued a career in ministry. In DUI cases, however, his forgiveness is earned, not just granted.

Judge Shepherd, like most Macomb County District Court Judges, actually requires very little of a 1st time DUI Offender who gets Probation. In fact, he pretty much expects nothing more of a DUI 1st Offender than staying out of trouble. Don't get in any more trouble, and all will be well.

A DUI Defendant who Violates his Probation, however, especially by picking up another charge, particularly another DUI charge (and that happens more than you think), will absolutely get locked up.

Despite that, a 1st, and even a 2nd Offense DUI case can be resolved quite favorably in this Court, meaning no Jail. But there's more to any DUI case than just avoiding Jail. Getting slammed with an endless diet of Classes, Counseling, Community Service, Reporting, Testing, and the like can wear a person down rather quickly. In the 41A Shelby Court, very much like in the New Baltimore District Court, most of these annoying and inconvenient consequences can be avoided if the right steps are taken.

In terms of Fines and Costs, the 41A Shelby Court is close to the middle-of-the-road, perhaps even a bit more toward the less, rather than the more expensive side.

In a 1st Offense DUI, it is possible, with some good work, to avoid any kind of Classes, Counseling, and even Probation. In a 2nd Offense DUI, and again, with the case handled properly and the right steps taken, it's possible to limit the fallout to little more than a year's Reporting Probation.

Continue reading "DUI in Shelby Twp., Utica, or Macomb Twp. - The 41-A District Court Shelby Division" »

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December 13, 2010

New Baltimore (42-2) District Court - DUI in New Baltimore, Chesterfield, Lenox and New Haven

In this second article in my series about DUI in Macomb County District Courts, we'll be turning our attention to the 42-2 District Court in New Baltimore. Often referred to by Lawyers and those in the Legal community simply as "New Baltimore," the 42-2 District Court handles cases arising in New Baltimore, Chesterfield Township, Lenox Township, and New Haven.

Since this article is about the Court, anyone seeking more information about the DUI process should read those articles in the Drunk Driving section of my Blog which are relevant to their situation.

Located in another beautiful new building, this multi-jurisdiction Court is presided over by Judge William Hackel III. If the name sounds familiar, it should. His Father was longtime Macomb County Sheriff William Hackel, and was succeeded by his brother, Mark Hackel, who will become the County Executive on January 1, 2011.

New Baltimore 2.jpgJudge Hackel was appointed to fill the vacancy created by the retirement of former Judge Paul Cassidy. I have to admit that when I heard the name of the new Judge, I wondered if he might not be a bit too pro-law enforcement. Deciding to keep an open mind, I entered his Court that first time hoping for a fair shake.

I have left that Court every time since grateful for whatever alignment of the stars precipitated Judge Hackel's appointment. To be blunt, this guy is awesome. If he's pro-anything, it's pro-fairness. You'd have better luck finding Elvis alive and well rather than anyone who has a bad thing to say about this Judge. Beyond being kind, and fair, his approach from the Bench is that of a regular guy. He talks to people like people, not things, or merely "Defendants." While clearly a highly intelligent man, Judge Hackel feels no need to flex his intellectual muscle merely for show. He is truly a rare bird in combining such assets.

On top of that, this Court generally imposes the most reasonable Fines and Costs anywhere in Macomb County

That's not to say he's any kind of pushover. He'll give anyone a fair break. But if you wind up walking out of his Court on Probation, and come back in for a Violation, you'll be led out the back door, just as you'd expect.

In DUI cases, Judge Hackel embodies the general approach of most Macomb County Judges that a 1st Offense can be as much a lapse in Judgment as anything else. In 2nd Offense cases, he likewise adopts the position that such a situation is generally evidence of a drinking problem. Rather than just toss someone in Jail, however, if the Defendant and Lawyer take the right steps, Jail can be avoided.

In the right case, this Court can produce what a 1st time DUI Defendant would consider the very best outcome possible. I have handled cases where the final outcome was the imposition of ONLY fines and costs, with no Probation or anything else required. No one ever walks out of this Court feeling that they were (at least undeservedly) "hammered."

Final Verdict: The Very Best Detroit-area Court in which to face a DUI

If I was facing a DUI, and knowing what I know, here's how I'd rate the 42-2 District Court from 1 to 5, with 1 being the worst, and 5 being the best:

5.0 for a First Offense.

5.0 for a Second Offense.

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December 10, 2010

DUI Cases in Clinton Township, Harrison Township, and Mt. Clemens - 41B District Court

This is the first in a series of DUI articles focusing on Macomb County District Courts. To begin, I think it's fitting for me to explore my "home" Court, the 41B District Court, which handles cases arising in Clinton Township, Harrison Township, and Mt. Clemens.

Housed in a beautiful new building and staffed by 3 Judges, Sebatian Lucido, Linda Davis, and as of Jauary 1, 2011, Carrie Fuca, the 41B District Court is a model of efficiency. For those facing a Drunk Driving (DUI), this is a solidly "middle of the road" Court, being neither especially lenient, nor overly harsh.

41B District Court.jpgOn the other hand, the 41B District Court tops them all in terms of being expensive. Fines and Costs here are always on the high end. No one gets out of this Court inexpensively. Given that it's not a particularly "harsh" Court, and given the admirable level of consistency in that regard, I think it's better to pay a little more and walk out the front door after a DUI, rather than get a great deal on the Fines and Costs, along with some time in Jail to savor that bargain.

As a DUI Attorney, I am lucky to have the 41B District Court as my "home" Court. I'm often in this Court 3 times a week, so my observations about it are based upon considerable experience. Frankly, if a person is unlucky enough to get a Drunk Driving, having the case land here is at least a decent break.

Judge Sebastian Lucido worked in Private Practice, like me, before being appointed to the Bench. Quick-witted and very intelligent, his natural disposition is overwhelmingly kind, and it is obvious to anyone paying attention that he tries very hard, and is uniformly successful at being fair. He is quick to give someone a break. This is a bonus for anyone facing a DUI. In 1st Offense DUI cases, he is always open to the possibility that a person has simply fallen victim to a lapse in good judgment. In Second Offense DUI Cases, he won't buy that excuse (nor will any Judge, for that matter), but he is similarly receptive to working with someone who is ready to address their problem and take care of getting themselves on the straight and narrow. This means that if the right steps are taken, Jail can be avoided.

Judge Linda Davis was a Macomb County Prosecutor before being appointed to the Bench. She was, in that role, always firm, but fair. Her appointment to the Bench was made at a time when the 41B District Court had been having problems. She came in to clean things up, and beyond doing that in short order, she was able to transform the Court into one of, if not the most efficient Courts in the County. Perhaps her biggest attribute is that solid sense of fairness. She is tough, and not in the sense that she is harsh, but rather that she will tell it like it is. She has the ability to assess a situation involving alcohol or drugs, quicker and more accurately than any other Judge around, She will accept no BS, and if presented with it, will call the person on it. Her raw intelligence would make her an ideal candidate for any important position at a national level. It takes some work, but even in 2nd Offense DUI cases, a person can walk out the front door of her Courtroom, and not be taken away through the back.

Continue reading "DUI Cases in Clinton Township, Harrison Township, and Mt. Clemens - 41B District Court" »

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November 13, 2010

Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 2

In the part 1 of this article, we began our examination of what a person facing a DUI will be experiencing form the point of being released from Jail right up through the point of going to Court. We'll pick up from there, covering what happens at Sentencing and the inevitable consequence any DUI Driver will face, as well as what can be done to get the least amount of consequences possible.

Obviously, the 1st goal is to stay out of Jail. That's usually not a problem, with the only exception being, in some cases, the 48th District Court in Bloomfield Hills. Beyond that however, there can be a million things a person is ordered to do, and not do, and limiting those things is the whole goal of preparing someone for the PSI and the legally required alcohol screening test. I have noted before that almost everyone facing any criminal Charge, DUI included, will say that they'll do anything to stay out of Jail. I have no doubt each and everyone one of them means that, at the time they say it. Then, later, as the case concludes, and once their Lawyer has worked it our where they don't go to Jail, they are left to deal with the Judge's order to do this and that, and not do other things.

Macomb Sherrif2.jpgIt doesn't take long for a person placed on Probation to start NOT liking all the "do this and do that" stuff, and to resent the "don't do" these things part of the deal. It's about that time they'll utter the most famous words said in so many Criminal cases, yet never in the Courtroom itself: "This is bull$***!"

And I can understand that feeling. That's why doing so well BEFORE a person gets Sentenced by the Judge is so important. Thus, preparing for the PSI is what produces results in DUI cases that aren't dismissed on some technicality. The goal of all that time spent preparing the Client for the PSI and the alcohol assessment is to avoid as many of those "This is bull$***!" consequences as possible.

There are, however, certain consequences that occur in every 1st Offense DUI case. Almost everyone dealing with this charge, whether they ultimately Plead Guilty to OWI or the less severe Impaired Driving Charge, will attend something called a VIP, or Vicitm Impact Panel. This is put on my MADD (Mothers Against Drunk Driving). Some people will also be required to attend something like an Alcohol Awareness Class. This is far less likely in Macomb County, and most of Wayne County than it is in Oakland County.

Continue reading "Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 2" »

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November 9, 2010

Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 1

This article will be about what really happens when a person gets a 1st Offense OWI (DUI). I have plenty of articles about the legal and strategic considerations involved in dealing with this charge in the Drunk Driving section of this Blog. Beyond that, there are plenty of other sites that tout the possibility of challenging every bit of evidence obtained and every step taken in a DUI case (for the price of a King's Ransom) in the hope that the whole case can be dismissed. Given the statistical unlikelihood of that, I thought it's time to talk about what the person facing the DUI can really expect to go through. Again, this article will focus much less on the legal implications, opting instead to examine the practicalities and realities that lie ahead.

The reader facing a DUI has undoubtedly dealt with a number of these realities so far: Being put in the Police car, being taken to Jail, taking the Breathalyzer test, undergoing the Booking and Printing, and finally being released. From there, most people have to go and get their car back.

Breath Tester2.jpgMost of the time, unless there is a sober person in the car with a valid License who can drive it away, the Police will have the DUI Driver's car towed to an impound yard. In some cases, the County Prosecutor will put what can essentially be called a "hold" on the car, and sets a price for the Driver to get it back. When that happens in Macomb County, for example, the fee is usually $900 in a 1st Offense DUI, and $1800 in a 2nd Offense DUI. Even when there is no Prosecutor's "hold" to deal with, there will be a towing and storage charge that needs to be paid to get the car back.

Of course, those first few hours back at home are stressful. Your Driver's License has been taken, and instead you have this "paper License" called a Michigan Temporary Driving Permit. The car is in the driveway or garage with a paper plate instead of the old metal plate. If it isn't, it's sitting in some storage yard waiting to be picked up. When there's no Prosecutor's "hold" on the car, storage charges accumulate by the day. The location of the car is usually indicated in the papers the Driver receives from the Police upon their release.

There are plenty of those papers, too. Usually, but not always, a person is given a Ticket (Citation) for there DUI. Then there's this large, pink sheet that looks like a big store receipt called an "Evidence Ticket" that was generated by the Breathalyzer machine.

If a person refused to take a Breath Test, they most likely will have had their blood drawn. In those cases, they're sent home with a copy of the Warrant signed by a Judge or Magistrate allowing their blood to be taken, and another paper called an "Officers Report of Refusal to Submit to Chemical Test."

Continue reading "Dealing with a 1st Offense DUI (OWI) Case in Macomb, Oakland or Wayne County - Part 1" »

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October 25, 2010

OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 3

In part 1 of this article, we began our general overview of 2nd Offense DUI's and some of the considerations involved in this type of case. In part 2, we continued that examination. Here, in part 3, we'll conclude with a discussion of Court costs and other, related fees, and take a look at how the emotional and psychological aspects of a 2nd Offense charge can be viewed either with optimism, or pessimism, and how being ready, willing and able to do some legwork can have such a significant impact on making the outcome of such a case much better.

It should come as no surprise that, beyond legal Fees, this will cost a lot. And here's where I have to be honest about my feeling on the matter: Oh well. We all have money issues. If I had more than enough to need to work, I'd be somewhere warm, managing investment accounts under a palm garden, sipping Sweet Tea and listening to the gentle crash of the ocean waves. But I'm here, and not there, and neither is the person facing a 2nd Offense. We all have to do what we have to do, and if you're facing a 2nd Offense DUI, paying a lot of money is part of that.

tropical_scene end.jpgSome people take a bit of stress off themselves and just accept this, while others will rant on about how it's a great big conspiracy on the part of the Court and the Government to make money. In the end, it really doesn't matter what it is, because a person has no choice, anyway.

Those costs are significant. If a 1st Offense seemed expensive, wait and see how this goes. Fines and costs can easily be double that of a 1st Offense. The Driver Responsibility Fees WILL be double, racking in at $1000 per year, for 2 years. Probation will likely be longer, and will almost certainly be Reporting, which will also cost a nice chunk of cash, unless the person lives, or moves out-of-state. There will be Counseling and/or Treatment. Guess who pays for that?

Now I'm not suggesting anyone can "buy" their way out of a 2nd Offense DUI, but NOT being able to pay fines and costs, and otherwise coming to Court with empty pockets will only complicate things. Here's where another bit of honesty, as opposed to salesman's diplomacy, is needed on the part of the Lawyer: If YOU were the Judge, and you sat on that Bench and saw DUI after DUI, with lots of them being 2nd Offenses, how interested would you be in dealing with all the excuses why a person cannot pay? Part of that Judge's mentality becomes, at least with time, the whole notion that "If you're going to play, you've got to pay." It's really that "oh well" sentiment all over again.

Now, I do understand that not everyone can satisfy the financial obligations caused by a 2nd Offense quite so easily. But a Lawyer has to do more than just go in and ask the Judge "can my Client have some time to pay?" After all, the Client can do that on their own. Instead, I have a rather simple approach; if you pay me, I'll help you get time to pay them. We might need to sit down and actually sketch out a budget to hand the Judge, but if that's what it takes, then that's what it takes.

This pretty much wraps up the "Legal" considerations involved in a 2nd Offense DUI case. There are also a few very important emotional and psychological aspects to these cases that are just as important.

Continue reading "OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 3" »

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October 22, 2010

OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 2

In part 1 of this article, we began our general overview of 2nd Offense DUI's. We looked at staying out of Jail, evaluating the evidence, and Legal Fees. In part 2, we'll pick up with an examination of the concept of a legal "Consultation," finding the right Lawyer, License Consequences (meaning mostly License Revocations) and Counseling and Treatment options.

Like every Lawyer out there, I do consultations. Mine, however, are done on the phone. I can spend 15 or 20 minutes with someone on the phone and get a good feel for them, their case, and what issues it presents. Likewise, they can get a feel for me, and my approach. What I like best about a phone consultation is the somewhat anonymous ability for either party to not feel any obligation or pressure beyond that phone conversation. In other words, if I don't like you, or I think you're a kook, or if you don't like me, or think I'm whatever, then we need not go any further. We can say "goodbye" and hang up. I have been told, many times, by Lawyers who do the "in person" consultation that it has a good "closing rate," and that I should change my approach to do it that way. In other words, the idea is that once you get them in the office, you should be able to get them to sign up.

DrunkDrivingBeer.jpgI don't work that way. I could explain that all day, but in the end, that's just not me. Instead, after speaking with someone, if they feel I'm the Lawyer for them, and I think I can help them, then they can either let me transfer them to one of my Staff members to schedule an appointment, or, if I'm not in the Office and am returning the call (which is the usual scenario), then I'll tell them to call my Office and schedule an appointment.

I have written several articles about finding the right Lawyer, and I urge the reader to review them. One thing I'm sure about is that, as much as I might spark some curiosity about me with all these articles, I will also convince some people that I'm not the Lawyer for them, which is also a good thing. I have no illusions that I'm the Lawyer for everyone. I speak frankly and often use the more pedestrian voice of my upbringing. That's me. In fact, the whole point of this is that finding the right Lawyer for you takes some time, and is a process. Even if the first Lawyer with whom you speak turns out to be the one for you, that should become clear only after you've weeded through a number of others with whom you've spoke, or whose articles you've read. More than anything else, you have to like the person you're going to hire.

Finding the right Lawyer, then, really involves a number of considerations.

Lets' assume the reader has already found the right Lawyer. The reader is well aware that the maximum possible Jail penalty for their 2nd Offense DUI is 1 year n the County Jail, and that, unless their case is being heard in the 48th District Court, with some good legal work, they can usually avoid dong any of that Jail time.

Continue reading "OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 2" »

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October 18, 2010

OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 1

In previous articles, I have examined many different aspects of DUI cases, including some specific issues relative to 2nd Offense cases. In looking over those articles, however, I noticed that we have yet to conduct a more general overview of the whole 2nd Offense Drunk Driving subject. That's what we'll be doing in this article. We'll look at consequences, defenses, Fees, Lawyers, Counseling and Treatment, and the whole gamut of things a person will have to deal with if they are charged with a DUI.

This article will be broken into 3 parts, with part 2 being the longest because I prefer to break off at a logical stopping point.

arrested cuffs.jpgMy Practice not only involves a lot of 2nd Offense DUI cases, but also, because of my specialty as a License Restoration Lawyer, deals with the after-effects and consequences of those DUI's. As often as not, a person who hires me to help with their Driver's License Restoration is someone whom I did not represent in their 2nd DUI case.

Likewise, I am often called upon to represent a former Client in their 2nd DUI. Usually, that first conversation involves some mention, on their part, of the words "embarrassed" or "stupid." The next thing that comes up is an anxious, yet understandable concern about "what's going to happen to me?" Underlying all of that, of course, is the ultimate question: Am I going to Jail?

And the good news is that, with some focused, good work, the answer to that can question can almost always be "no." Things are different in the 48th District Court in Bloomfield Hills, where a 2nd Offense DUI, unless it is dismissed on some technicality or "beaten" at Trial, will ALWAYS result in a Jail Sentence. Not to make light of the situation, but if you're facing a 2nd offense in that Court, unless you have a plan to beat the case somehow, you'd better bring a toothbrush.

This does not mean, however, that a person facing a 2nd Offense charge is automatically not going to go to Jail. Instead, as I noted, it means that with the proper work from BOTH the Client and their Lawyer, Jail can be avoided. In other words, a 2nd Offense DUI is kind of like a heart attack; prompt and proper attention to the situation can make all the difference in the world. Doing nothing, or just waiting to see what happens will always mean things turn out worse.

Let's talk specifics: A 2nd Offense DUI is a Misdemeanor Criminal Offense. By Law, it carries a maximum Jail penalty of up to 1 year in the County Jail.

Continue reading "OWI 2nd Offense in Macomb, Oakland and Wayne Counties - Part 1" »

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October 8, 2010

Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 4

In part 3 of this article, we continued our examination of coming to grips with, or Denying the existence of an alcohol problem in a 2nd Offense DUI.

In this 4th and final installment, we'll recap and summarize our prior analysis, and attempt to put this whole subject in perspective, focusing on, more than anything else, how this process plays out in Court.

The Light.jpgAt the outset, we observed that, with only RARE exception, anyone facing a 2nd Offense DUI falls squarely into 1 or 3 categories:

1. Those in Denial, or who just don't see a problem (yet),
2. Those who know something is wrong, but think they can learn to control or fix it, and
3. Those who finally have the light switch flipped and really get it.

In my Practice, I can usually be of significant help to those in the third category, who have had the light switch flip. I can work with them to understand the various kinds of Counseling and Treatment options, and help guide them into one which will not wear them down, either emotionally or financially. Because that commitment to Sobriety is usually rather strong at first, we can capitalize on that as we handle their case.

Those in the second group can also be helped quite a bit, but they have to give up control. In fact, it's ironic that The Serenity Prayer, often read in AA, talks about just that; giving up control and accepting those things which a person cannot change:

God grant me the serenity
to accept the things I cannot change;
courage to change the things I can;
and wisdom to know the difference.

It's that passing of the controls to someone else, who knows a lot more about the whole process than does the person facing the Charge, that's necessary in order to produce the best outcome in a 2nd (or any) DUI case. Not to be too cynical, but a person must see and understand that their best thinking got them where they are.

The hope of the Court, and really that of everyone affected by a person's 2nd DUI, is that they will eventually see the light and come to accept that their drinking needs to be put in the past. Simply NOT being adamant that they don't have a problem, while not really a "first step," is at least not a step in the wrong direction, either. We can work with that.

Continue reading "Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 4" »

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October 4, 2010

Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 3

In part 1 and part 2 of this article, we examined how a person facing a 2nd Offense DUI can almost always be placed into 1 of 3 categories: Those who "get it," and begin a life of Recovery, those who are starting to "get it" and begin the difficult process of self-examination, and those who just don't "get it," and are in Denial.

In other blog articles, and on my website, I have noted that, whatever happens to anyone, in any DUI case, it is almost always EXACTLY what is recommended by the Court's Probation Department as a result of the Legally required Alcohol Evaluation.

Drunk Again.jpgIf you're facing a 2nd Offense, then you'll surely remember this. By Law, before a Judge can Sentence someone for a DUI, they must undergo that Mandatory Alcohol Evaluation. This is a written test which is given a numerical grade, or score. The higher the score, the more likely it is that a person has, or will develop an alcohol problem. The lower the score, the lower that likelihood.

The Probation Department, which administers this test and then writes the Sentencing Recommendation to the Judge, bases that Recommendation upon the person's test score, more than any other factor.

Whatever kind of Counseling, Rehab or Treatment is given is usually exactly what was Recommended by the Probation Department.

Interestingly, it has always been important for a person to score as low as possible on this test, no matter what the other circumstances of their case. In other words, even though the Law presumes an alcohol problem in a 2nd or 3rd Offense case, there is simply no benefit to going in and racking up a bunch of points that make that problem look all the worse.

Thus, both the Client and I have to walk on both sides of the fence: Treating the case as the moment of epiphany and the prime catalyst for addressing their alcohol problem, or at least beginning to recognize that problem, and making sure that problem is NOT seen as any more severe, or deep seated, than it can otherwise be made to look.

Fast-forwarding a bit, when the person is finally standing in front of the Judge to be Sentenced, who do you think is in line to get the best break? Remember, we're talking about 3 kinds of people:

1. Those in Denial, or who just don't see a problem (yet),
2. Those who know something is wrong, but think they can learn to control or fix it, and
3. Those who finally have the light switch flipped and really get it.

Continue reading "Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 3" »

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October 1, 2010

Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 2

In part 1 of this article, we began examining how those facing a 2nd Offense DUI either outright recognize they have an alcohol problem, are beginning to sense something is amiss with their drinking, or are just plain in denial regarding their use of alcohol and the problems it creates.

What's all this got to do with a 2nd Offense DUI? More than you might imagine.

drinking_problem3.jpgEarlier, I noted that except for those very few 2nd Offenders who really do not have an alcohol problem, all the rest fall into 1 of 3 categories: Those who get it, those who are starting to get it, and those who simply don't get it. We began by examining those who seemed to have the light switch flipped, and who suddenly seemed to "get it." Next, we talked about those who seemed to be starting to get it. Whatever their level of discomfort about their drinking, these individuals are struggling with the consequences created by their drinking behavior. Whether they make accommodations, or just plain cover their tracks, there is at least a restless sense that something's not right.

It's those who simply don't get it that help put things in perspective. In the local Detroit area, there isn't a Judge on the Bench who isn't keenly aware of the fact that, statistically speaking, the overwhelming majority of DUI 2nd Offenders have a drinking problem. Some Judges will go so far as to outright tell anyone with a 2nd Offense that it is a fact that they have a problem, citing the statistical improbability that they DON'T have a problem as about the same as alien abductions. They say, in short, that "if you're in front of me for a 2nd Offense, you've got a problem. If you think not, then you're about the only one who believes that."

Those who don't get it, and who insist that they're just unlucky, have the almost impossible task of convincing the Judge that they really don't have a problem. It's not a strategy I would use, at least if I wanted to make things better, and not worse.

In essence, this means that getting popped for a 2nd DUI puts a person in the position of being presumed to have a drinking problem. To put it another way, at least as far as standing in front of a Judge is concerned (and nothing else matters nearly as much in a DUI case), it's a foregone conclusion that picking up a 2nd Offense DUI means you have a drinking problem. To argue otherwise is not only an exercise in futility, but quite likely to make things worse.

So who do you think is likely to have it easier? The person who comes to Court, already in the appropriate Counseling or Treatment, and who say's "I'm addressing my problem," the person who says "I think I might have a problem here," or, the one who maintains "I don't have any kind of problem, I'm just unlucky, and used poor judgment in driving that day?"

Continue reading "Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 2" »

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September 27, 2010

Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 1

There is nothing good about picking up a 2nd Offense DUI charge anywhere. In fact, depending on where the charge arises, it's fair to say things simply go from bad to worse. This article will focus on those individuals who use that 2nd Offense charge as a life-changing wake up call and start dealing with a drinking problem, and how that can positively affect the outcome of their case. This article will be based upon my 20 years' experience as a DUI Lawyer who has made a nearly lifelong study of Alcoholism and Recovery, and how those concepts are so fundamental to handling DUI cases. It's a long, involved subject, so our discussion of it will be broken into 4 installments.

The exact statistics are debatable, but it is safe to say that the overwhelming majority of people who pick up a 2nd Offense Drunk Driving charge have an alcohol problem. Under Michigan Law, a 2nd Offense DUI within 7 years makes a person a "habitual offender," resulting in additional penalties and mandated alcohol treatment. In other words, the State basically concludes that a person who gets a 2nd OWI within 7 years has an alcohol problem.

Drinking Problem2.jpgExcept for the truly rare person facing a 2nd Offense DUI who DOES NOT have an alcohol problem, there are really 3 kinds of people in this situation:

  1. Those in Denial, or who just don't see a problem (yet),
  2. Those who sense something is wrong, but are struggling to control or fix it, and
  3. Those who finally have the light switch flipped and really get it.
Let's first talk about that 3rd group. Very often, when I meet with someone who really "gets it," they talk to me in terms of "surrender, " being sick and tired of being sick and tired," and "not being able to lie to myself anymore." I'm often told that as they sit in the Jail cell, waiting for whatever is going to happen to happen, they realize that the common denominator to all the crap and trouble in their life is alcohol. Quite often, this "epiphany" is more a confirmation of a lingering feeling they've wrestled with than a surprising "a-ha" moment.

I think that most people fall into the 2nd group, those who can no longer deny that there is some kind problem, but who have not yet clearly defined it. These are the people who have had, to some extent or other, that "lingering feeling" I mentioned in discussing those who finally "get it."

At a minimum, most people sitting in jail waiting to be Bonded out on for a 2nd DUI know they "can't do that again." Exactly what that means will be the subject of an internal debate raging inside them. And this provides a convenient stopping off point to discuss what I see, time and time again, as one of the hallmarks of a drinking problem and one of the landmarks of Recovery.

Continue reading "Michigan OWI 2nd Offense and the Issue of a Drinking Problem in Macomb, Oakland and Wayne Counties - Part 1" »

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August 27, 2010

OWI in Michigan - The Court and the Driver's License

In almost every Drunk Driving case I handle as part of my DUI Practice, the Client will ask about the consequences to their Driver's License. The purpose of this article is to clarify that whatever the consequences in any given DUI case, it is the Michigan Secretary of State, and ONLY the Michigan Secretary of State, that imposes them. In other words, the Court has NOTHING to do with a person's License in a DUI case.

Often, in a DUI case, I am asked if the Judge will "at least" give the Client "some kind of restricted License." I then go on to explain that the Judge cannot Suspend, Revoke, Restrict or otherwise take any action against a person's License in a Drunk Driving case. Many people easily understand that all Licensing actions in a DUI case are exclusively handled by the Secretary of State.

Judgeflag2.jpgSome people, however, don't quite get it, and very often, that's for a good reason. Prior to the "Habitual Offender" Drunk Driving legislation of 1999, Courts did have jurisdiction over a DUI Driver's License. Thus, a person facing a 1st Offense OUIL (the technical name for a DUI back then), would have their Driver's License Suspended, Restricted of Revoked by the Court in which the DUI charge was pending. The Habitual Offender legislation, which went into effect October 1, 1999, transferred ALL Licensing actions and authority from the Court to the Secretary of State.

Before the Habitual Offender Legislation took effect, when all Licensing consequences in a DUI case were imposed by the Courts, there were still certain, specific Mandatory minimum and maximum Driver's License penalties. Thus, the Law gave the Courts the power to Suspend, Revoke, and/or Restrict a person's License only within a specific, specified range. Even so, the results were all over the board.

In one local Macomb County Court, a certain Judge used to grant a Restricted License in a 1st Offense Impaired (OWVI) case for 6 days per week, 12 hours per day. It didn't matter whether the person worked 14 hours per day, or was on call. Most other Courts would ask a person to specify the earliest time they left in the morning, and the latest they would return home, and grant a Restricted License for that period. A few Courts, noting that someone worked on an "on call basis," would allow them to drive at any time, 24 hours per day, as long as such driving was work-related.

The Habitual Offender legislation of 1999 got rid of all that, and made things simple and uniform. The Law spells out certain specific consequences for each DUI offense. This eliminated any difference in results between two people facing the same charge, no matter which Court or Courts were involved.

Continue reading "OWI in Michigan - The Court and the Driver's License" »

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August 23, 2010

Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 2

In part 1 of this article, we began examining the economic realities Lawyers face in taking Court Appointed cases. In this second part, we'll focus on how that economic strain translates into time spent, or not spent, resolving a Client's case, and how that affects the level of service that is ultimately provided.

Beyond time and money, there is another, even less obvious factor that comes into play when we compare having your own Lawyer to taking one who has been Court Appointed. In my Practice, having a Client come in to hire me is almost always the by product of their deciding they like what I have to offer, and my thinking I can help them. In other words, there is sort of a mutual selection that has taken place. If the Client calls my Office and feels alienated, or if I speak with them and think they're nuts, then it's not likely we'll be meeting.

Judgenumber2.jpgWhen I take a person's money, I feel a very serious responsibility to them to do whatever is necessary to produce the best outcome humanly possible. After all, they paid me.

When the Court pays someone, and the pairing of Attorney-Client has been by chance, that bond and that sense of agreement and understanding are simply not there. That's not to say that any particular Court Appointed Lawyer will neglect his or her Client's interests, it's just that, no matter how you slice it, that bond, understanding, sense of obligation, handshake, or whatever is NOT there, and never will be. Either side can always think "I didn't hire you" or "you didn't pick me."

In fact, it has been noted that there is at least a concern that because it is the Court, and not the Client who pays the Lawyer, the Attorney might be far more afraid to test the Court's patience, rather than the Clients. Think about it this way: one frustrated Client dealing with an otherwise happy Court passing on Appointments is worth more than one happy Client and a frustrated Court who might direct appointments away from a Lawyer who is seen as inefficient in wrapping cases up and moving them through. Remember who signs the check.

Then there is the matter of time spent with a Client before and during the case. The way I see it, I am paid to explain every aspect of a case to my Client. In a DUI, for example, I'll meet with my Client for 1 and ½ to 2 hours at our first Appointment. I will begin preparing the Client to take the legally required Alcohol Evaluation. My Client leaves not only with my phone number, but my "personal-business" e-mail so they can get in touch with me as other questions or concerns come up.

Continue reading "Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 2" »

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August 20, 2010

Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 1

One question that comes up from time to time within my Criminal Practice is "should I just go with a Court-Appointed Lawyer?" This is almost always preceded by an explanation that the questioner either has no money, or not a lot of it. This article will focus on that question, and will be broken into 2 parts.

Let's narrow that focus, however, to the types of Criminal cases that I handle. Thus, we are not talking about what are called "Capital cases," meaning those that carry a term of up to life imprisonment, and usually involve such crimes as Murder, Rape, Armed Robbery, and the like.

Checklist2.jpgInstead, we'll focus on the rather garden-variety Misdemeanor case, or a light-to-medium severity Felony case. Typically, this will involve charges ranging from DUI, Suspended License and other Driving charges to things like Possession of Marijuana, Cocaine, Analogues, or other Drugs, up to Felony DUI matters. The idea here is that we are NOT talking about Murder, Rape or Armed Robbery type charges.

Let me begin by pointing out that when facing a Criminal charge, having a Lawyer is better than not having a Lawyer. The same thing goes for dealing with an injury. Better to have a Doctor than not.

At this point the reader is probably figuring that I'm going to begin an analysis of how and why Court-Appointed Lawyers are so inferior to those Practicing Privately. That's not the case. Instead, I'm going to examine the realities of the paycheck, and how that affects the level of service someone can expect.

Before we begin our analysis, I should point out that, contrary to popular opinion, a person represented by a Court-Appointed Lawyer must repay the Court. They are NOT free.

There is always some rumbling every year within the Legal Community about the need to increase the payment for Court Appointed Lawyers. The truth is, the Fee schedules that most Court-Appointed Attorneys work under was always below market in terms of compensation, and it has either remained relatively unchanged in the last umpteen years, or, in some cases, has actually gone down. It is generally recognized that within the economic realities of today's world, these Fees are bottom of the barrel. Compared to the Fees of a Private Lawyer (see my Fee Schedule), it seems like welfare.

This generally accounts for the notion that Court Appointed Lawyers are very often young, inexperienced "newbies" learning to "cut their teeth" in the real world. While that's not completely true, at least within the parameters of the kinds of cases I handle, any veteran Lawyer making his or her living on the Court-Appointed rolls, is generally not perceived (whether correctly or not) as having the "stuff" to be successful.

Continue reading "Michigan Criminal Law - Should I just go with a Court-Appointed Lawyer? - Part 1" »

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August 9, 2010

Michigan DUI and the Required Alcohol Assessment Test - Part 2

In part 1 of this article we began discussing the concept of Alcohol Assessments, and how I came to realize how very important the results of any Alcohol Assessment test was in terms of the Sentence a person received, particularly in a DUI, where such a test is required by Law. In this second part, we'll pick up right where we left off and continue our examination of the role of the Alcohol Assessment test in DUI and other Criminal cases, and how a person can and should be prepared in order to do as well as possible at this most critical stage.

Now let's be clear about the role of these tests. In a DUI case, for example, the results of whatever test is given is, BY FAR, THE SINGLE MOST IMPORTANT FACTOR in determining what kind of Classes, Counseling, Education, or Rehabilitation Services will be ordered for the Defendant. It doesn't matter who you are, where you work, or who you know, if your test score indicates that you have, or are at risk to develop an alcohol problem, you are going to be ordered by the Court into some kind of Counseling or Treatment. End of story.

Test22.jpgThis means that scoring as well (meaning as low) as possible on this kind of test will have the biggest and best impact on the outcome of a DUI case, short of having the whole thing dismissed. It also means that missing a beat here or there will send you to Classes, Counseling, or Treatment that you might have otherwise been able to avoid.

So that's really the bottom line to all this. After we strip away all the "politically correct" ways to discuss this, the unblemished truth is that if you know how to score as low as possible on one of these tests, then the outcome of your case will be better.

Makers of Radar Detectors will proudly tell you their products are not made for the purpose of defeating any legitimate law enforcement tool, nor are they sold to help people break the law (meaning speed). Instead, the sales pitch involves your right to know if you're being watched.

Ditto for preparing for any kind of Alcohol or Drug Evaluation Test. I'd never suggest anyone lie, or give an untrue answer on one of these tests, but I sure as heck think that you have the right to know how you're answers will be evaluated, and how any particular answer affects your test score. In that regard, you have every right to know what you'll be asked about, and every right to know how your answers will affect the outcome of your DUI (or other) case.

Continue reading " Michigan DUI and the Required Alcohol Assessment Test - Part 2" »

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August 6, 2010

Michigan DUI and the Required Alcohol Assessment Test - Part 1

This article will deal exclusively with certain aspects of the Alcohol Assessment, which is required, by Michigan Law, in all DUI cases. Sometimes referred to as an Alcohol Evaluation, or a Substance Abuse Evaluation, this kind of test is often administered in many other kinds of Criminal cases, particularly those involving alcohol or drugs. Like many of my longer articles, it will be broken into 2 parts.

A huge part of my practice involves helping people who are facing a DUI charge. Under Michigan Law, before anyone can be sentenced in a DUI case, they must undergo a mandatory alcohol assessment. This means they take a written alcohol evaluation test. This may be one of many different tests, but whichever is given, the test is graded with a numerical score. Generally speaking, the higher a person scores, the more likely they are to develop, or have an alcohol problem. The lower they score, the less likely they are to develop of have an alcohol problem. If you're thinking "lower is better," then you you're right on track.

Test 11.jpgI have been hesitant to publish this article out of a concern, misplaced perhaps, that it would appear I'm helping my Clients "cheat." Further consideration led me to overcome that concern by realizing that any Client has a right to know exactly what they will be facing in any case, and as a Lawyer, I have an obligation to be as thorough and knowledgeable as possible about all aspects of a DUI, or any other kind of case I handle. Telling someone what they're going to be asked, and how any particular answer will affect the outcome of their case is better thought of as preparation as opposed to any kind of unfair advantage.

Many years ago, I began to examine and study these Alcohol Evaluation tests. Seeing how the results of any such test was almost always the single most important factor in determining what happened to my Client in a DUI case, I began to see that helping a Client avoid a higher score was a huge factor in producing a successful, or better outcome. This eventually led me to a far more comprehensive study of the whole concept of alcoholism, addiction, and recovery. To say this has been a nearly lifelong interest is an understatement.

Continue reading "Michigan DUI and the Required Alcohol Assessment Test - Part 1" »

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July 23, 2010

The Steps in a Michigan Drunk Driving (DUI) Case - Part 2

In the first part of this article, we examined the steps in a DUI case from Arrest to Pre-Trial. In this installment, we'll pick up at the Trial stage. This assume that any prior Pre-Trials have been unsuccessful in bringing about an agreement to resolve the case.

If there are doubts as to the validity of the Traffic Stop, or the evidence collected, or method of collection, then an Evidentiary Hearing is set where the Defense Lawyer challenges the Stop and the collection of the Evidence, and seeks to have it excluded, or "thrown out." This type of Hearing takes place before any Trial is commenced.

steps2.jpgA Trial is either conducted by Jury, or by a Judge sitting without a Jury. This latter proceeding is called a Bench Trial. Often, when it seems that the case will be resolved, one way or another, without the need for an actual Trial, the matter is scheduled for a Bench Trial so that the Arresting Officer, and any other necessary witnesses will be present along with the Prosecutor and Defense Lawyer.

If a case actually goes to Trial, the result of that Trial is called a Verdict. A Verdict in a DUI can either be Guilty, Guilty of a Lesser Charge, or Not Guilty. If a person goes to Trial and beats the case, then the matter is over, period.

Very few DUI cases actually go to Trial. Instead, and as mentioned above, the vast majority of DUI cases are worked out though the Plea Bargaining Process.

If the person enters a Plea, or is found guilty after a Trial, then 2 more dates are set. The first is for the legally required Alcohol Assessment. The second is for the actual Sentencing date.

By Michigan Law, prior to being Sentenced, a person must undergo a mandatory Alcohol Assessment. This is often called a PSI, which means "Pre-Sentence Investigation." The PSI is conducted by the Court's Probation Department in every Court except the 72nd District Court in Marine City, which farms it out to one of a few local Substance Abuse Counseling Programs. This is by far the most important part of any DUI case, because the end result of this process is a written recommendation to the Judge advising him or her what should be done with and to the person who got the DUI. And in almost every case, that recommendation can be considered a blueprint for what the Judge will do.

Continue reading "The Steps in a Michigan Drunk Driving (DUI) Case - Part 2" »

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July 19, 2010

The Steps in a Michigan Drunk Driving (DUI) Case - Part 1

As a DUI Lawyer who also writes this Blog, I have tried to explain how a DUI case works in detail. I think my Drunk Driving section pretty much examines every aspect of a DUI case under a microscope. One thing I haven't done yet, however, is to really just lay out the steps in a typical DUI case without a lot of in-depth examination.

This article will cover the steps anyone facing a DUI will inevitably go through as the case goes from beginning to end. Because of the amount of material we'll be covering, even this somewhat topical review will require the article to be broken into 2 installments.

Steps1.jpgFirst, lets begin with what precedes a DUI case. Before a DUI "case" can be made, there must be an Arrest for Drunk Driving. And note that an Arrest for a DUI does not actually begin a "case." The "case" part of things only comes about when that Arrest results in a Court-authorized charge for DUI.

So an Arrest is a necessary prerequisite to a DUI case. Following the Arrest is the trip to the Police Station, and the Breathalyzer (or blood) test. Typically, a person is held in custody until their Bodily Alcohol Content (BAC) is low enough for them to be legally and safely released. If the Police let an intoxicated person post Bond and go home, they would be liable if the person was injured, or injured someone else because of their intoxication.

In most jurisdictions, a person will be released the next day, after either posting a small, interim Bond out of their own money, or having someone come up to the Police Station and post the Bond for them. While most often in the amount of $100 to $300, sometimes a person can be required to put up as much as $500 before the Police will release them.

In these jurisdictions, the Police let the person post a Bond with an understanding that they'll either be contacted by the Court, or have to contact the Court on their own within a specified number of days.

In a minority of jurisdictions, a person is brought before a Judge or a Magistrate the next day for an Arraignment. Arraignment is the very first step in what can be described as making a case "official." At an Arraignment, the Defendant is told exactly what charge or charges are being brought against them, informed of the maximum legal penalties that can be imposed upon them for each charge, advised of their Constitutional Rights, asked how they plead (to which everyone should respond "Not Guilty"), and then have their Bond amount set. This Arraignment can either be done in person, by bringing the person into an actual Courtroom, or by closed-circuit video, where the Jail has the person sit in a "video room." At the conclusion of the Arraignment, the person will either be given their next Court date, and/or will be told that a Notice of that date will be mailed to them.

Continue reading "The Steps in a Michigan Drunk Driving (DUI) Case - Part 1" »

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July 16, 2010

Michigan DUI - The Least Amount of Consequences Possible in Your Case - Part 2

In Part 1 of this article, we had an overview of what it means to get "the least amount of consequences possible" in a DUI case. As we ended that general discussion, I observed that "the least amount of consequences possible" really means "the least amount of consequences possible in your particular case."

In this second part of the article, we'll examine what that specifically means.

Empty Cell.jpgAs an example, earlier today I handled a DUI for a fellow in an Oakland County District Court. This particular Court is FAR AND AWAY the toughest Court on DUI's in the Metro-Detroit area. It's easily twice as tough as the next toughest Court, at least where I go. The outcome of this case will invariably be different than the outcome of an identical case pending on the other side of Dequindre, in a Macomb County District Court. To put it mildly, a person who got "pounded" in a typical Macomb County District Court would still have far less "consequences" than a person who catches as good a break as possible in the Oakland County District Court where today's case was heard.

Oakland County is generally tougher on DUI's than Macomb, and Wayne County (at least those Courts in which I Practice) can be described as somewhere in the middle. Some Wayne County District Courts are as "lenient" in a DUI as many Macomb County Courts, while others are much more like their Oakland County counterparts. Those are essentially geographic factors.

In any Court with more than one Judge, each will have his or her own perspective on these cases. This means that a case assigned to one Judge may turn out differently than if it had been assigned to another Judge in the same Court.

There are other factors which affect a case, as well. In an earlier article, I examined how a person's Breathalyzer results can affect their case. A person caught with a .12 Bodily Alcohol Content (BAC) will be treated differently (meaning less harshly, which really means "less consequences") than a person caught with a .21 BAC, all other things being equal.

When someone is Arrested for a DUI and has a child under 16 in the car, they are usually charged with Child Endangerment. this ramps things up. If there was an accident involved, things likewise get ramped up a bit. It's the Lawyer's job to turn those lemons into lemonade, and help everyone cool down about the situation.

Can you see how a person with a really high Bodily Alcohol Content (BAC), who had a 12 year old in the car, was involved in an accident, and got popped in a tough Oakland County community will be looking at a very different picture than a person who got caught, driving alone, with a low BAC, in Macomb County?

Continue reading "Michigan DUI - The Least Amount of Consequences Possible in Your Case - Part 2" »

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July 12, 2010

Michigan DUI - The Least Amount of Consequences Possible in Your Case - Part 1

In my DUI Practice, I speak daily with people who have been Arrested and have to deal with Drunk Driving Charges. In most of the DUI articles on this Blog, I have tried to explain the DUI Process, and many of the things that are involved in such a case.

One phrase that comes up quite often is that the person facing the charges will tell me that they want to resolve the case with "the least amount of negative consequences possible." While I think a closer reading of the many articles on this Blog would clearly show that "damage control" is job number one for any Lawyer, I thought that, in this article, we'll discuss that issue alone, and not as an implied subject in a larger discussion.

Jailguy.jpgFrom my point of view, that's what you hire a Lawyer for in the first place. A Lawyer has a very simple mission in a DUI (or any Criminal Case, for that matter) case: Either get the case thrown out, beat it at Trial, or work it out in the best way possible for the Client. Given that relatively few cases are simply "thrown out" or beaten at Trial, this means that the overwhelming majority of cases will involve some kind of a Plea Bargain, and/or a Sentence Agreement or Recommendation.

Let's be very clear here: Statistically speaking, if you're facing a DUI and you are hoping that some Lawyer can just get the case "thrown out," or that the Police screwed up the Arrest and the Evidence gathering so badly that the case can be easily beaten at trial, you're betting on an extreme long-shot.

In a previous article about How the Rich and Famous Beat DUI Charges, I pointed out that, in fact, they usually don't. The purpose of that article was to demonstrate that even for those with unlimited financial resources to "Lawyer up" and fight every facet of a DUI case, every celebrity that I've heard of who got popped for a DUI wound up cutting a deal. None of them gets the case "thrown out," and none of them winds up being acquitted of the charges after Trial, either. They step up, admit responsibility, and (hopefully) move forward while they put the whole episode behind them.

What does that mean to you, if you're facing a DUI? It means that (again, statistically speaking), absent some bizarre circumstances in your case, you'll be working out a deal to minimize the negative consequences of your case. And that means your Lawyer will be doing damage control.

Continue reading "Michigan DUI - The Least Amount of Consequences Possible in Your Case - Part 1" »

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July 9, 2010

Michigan DUI - How the Rich and Famous Beat the Charges

At the outset, I'll admit that the tone of this article is sarcastic. My DUI Practice involves handling real-life cases for real-life people. From time to time, I hear about someone having spent a royal fortune in an attempt to "beat" a case, only to wind up "discovering" that the case against them was rock-solid. Then they cut a Plea deal, having spent thousands more dollars than they otherwise would or should have if they had been told, up front, what the real chances were that some over-priced Lawyer could just get the whole thing "thrown out." That makes me mad.

I find it frustrating, at times, to accept that people are far more willing to shell out money for what they want to hear, rather than for what they need to, or ought to, hear. In other words, the appeal of having a DUI case dismissed outright is so strong, that any number of people will plunk down a ton of cash just for the chance to buy into that hope.

Liner2.jpgSo that got me wondering about all those Hollywood Celebrities who seem to get popped every week for DUI. Why is it that for every one I hear about getting arrested, I hear about another being placed on Probation for an earlier arrest?

From what I can tell, they certainly have the money to hire some big-time Lawyer who can challenge the evidence every which way under the sun in an effort to get the case dismissed. And if getting the case dismissed costs only what can be called "pocket change" to them, why would they do anything else?

Because, for a very good reason, the majority of DUI cases are resolved by a Plea bargain. Most cases are, unfortunately, "solid," or at least "solid" enough for a Judge not to decide that it should be dismissed and forgotten. For almost every situation where some aspect of the Police process by which evidence is collected and analyzed in a DUI case has been held to be unlawful, or legally unsound, there has been a corrective action on the part of the Police to eliminate that defect or problem. The DUI process is designed to comply with the Law. When some aspect of that process is found to not be in compliance, an adjustment is made.

Why do you think we have Breatlayzer tests in the first place? To provide evidence of a person's Bodily Alcohol Content (BAC) at or near the time of their arrest. While there is a certain protocol that must be followed when administering these tests, and while there is a certain "margin of error" inherent in these tests (and every test I've ever heard of, for that matter), those cases which are so profoundly flawed in failing to follow that required protocol, or in which the margin of error, for some reason or another, renders the test results so unreliable, are more the exception rather than the rule. The evidence in every case must be thoroughly examined, but to "sell" someone a bill of goods that pretends that practically any DUI can easily dismissed outright because a particular Lawyer's expertise, or extra effort, is misleading.

Otherwise, every single celebrity popped for a DUI would just "Lawyer up" and get the case dismissed. But that doesn't happen, does it?

Continue reading "Michigan DUI - How the Rich and Famous Beat the Charges" »

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July 2, 2010

Michigan DUI - What Really Happens in Macomb, Oakland and Wayne County - Part 2

In Part 1 of this article, we examined the range of realistic outcomes in a DUI case, particularly a 1st Offense case. In this second part of the article, we'll focus on how and why those outcomes happen, and what can be done to help insure that the most lenient, as opposed to a more severe outcome, is produced.

By Law, prior to the Judge imposing Sentence on a person with a DUI conviction (meaning they've pled to some alcohol-related charge, or were found guilty of one), the person must undergo a mandatory Alcohol Evaluation. This means they take a written test. This test is scored. The score a person gets determines, in essence, what will happen to them. The higher the score, the worse things are, whereas the lower the score, the less likely the person is to have, or to develop, an alcohol problem.

Judge2.jpgBeyond the test, every Court in the Tri-County area requires that the person also be interviewed by its Probation Department. The whole of this interviewing and testing process is often called a "PSI," or Pre-Sentence Investigation.

The Probation Department then makes a written report to the Judge, to be reviewed for Sentencing, advising what they think, based upon their interview and the person's test score, needs to be or should be done to them. In other words, the Probation Department recommends what the Sentence should be.

As I have noted in numerous places in both my Blog, and on my Website, these "recommendations" are more accurately called "blueprints" for what will happen, because in pretty much every Court, and in every case, what the Judge orders is usually either exactly in line with the recommendation, or darn close to it.

Think of it this way: If the Probation Department said Jane Doe had the potential to develop an alcohol problem, and was currently at the stage where it appeared she is abusing alcohol, and therefore should complete some classes, what do you think the chances are that some Lawyer can come along and convince the Judge that that's baloney, and no classes should be ordered? Do I hear a "zero" anywhere?

Thus, at the point where the Probation Department has made its recommendation, the Lawyer's influence in the way the rest of the case will play out has been reduced to minimal, at best.

So beyond negotiating a Plea Bargain, or getting a Sentence agreement to "no Jail" in a 2nd Offense case, what more can the Lawyer to do? Lots. Let's look at specifics:

Continue reading "Michigan DUI - What Really Happens in Macomb, Oakland and Wayne County - Part 2" »

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June 28, 2010

Michigan DUI - What Really Happens in Macomb, Oakland and Wayne County - Part 1

A substantial part of my Practice involves handling DUI cases. In that regard, I have noticed that much of what's said or written about Drunk Driving involves the legal particulars of the Stop, the Arrest, and the Evidence. Beyond that, the next most common topic seems to be staying out of Jail.

I think those two subjects appeal to most people's hopes and fears, more than anything else. What I mean is that suggesting to someone that there is a chance of having the whole case thrown out because of some technicality with the evidence appeals to their hopes. Telling someone they can be kept our of Jail appeals to their fears.

Judge1.jpgThe point of this article is to explain that, at least in the Detroit-area, the vast majority of DUI cases result in neither outcome, and that perhaps a better, more realistic examination would focus on what's likely to happen in most cases. Rather than look at the rather unlikely outcomes that could happen when a person gets an OWI, we'll look at what really happens to the overwhelming majority of those facing such a charge.

Let's sharpen the focus even more: We're are pretty much saying that those who shout "get the case dismissed because of the Traffic Stop...!" and things like "the Breathalyzer machine isn't believable...we can beat this case...!" have an approach that seeks to capitalize on what may or may not exist in a small percentage of cases. Meanwhile, those who shout "I can keep you out of Jail...!" are promising a result that is already the likely outcome of a DUI (at least a 1st Offense, in pretty much every Court in the Detroit-area), even without their help.

What is it that a DUI Lawyer can really do, in most cases, to benefit his or her Client?

The answer, it turns out, is pretty simple: Make things better.

Let's talk about specifics: When a person gets a DUI, all sorts of things go through their mind. Obviously, we've covered 2 of the biggest: "Beating" the case, and staying out of Jail. Beyond that, however, are plenty of other, real life concerns: Will I lose my Driver's License? Will I be sent to Rehab? Will this cost me my job?

It's managing (meaning minimizing) those consequences, except in the unusual case that may be dismissed because of some fatal weakness, that is the honest business of a real-life DUI Lawyer.

Continue reading "Michigan DUI - What Really Happens in Macomb, Oakland and Wayne County - Part 1" »

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June 21, 2010

Getting a DUI in Michigan - It's Going to Cost a Lot!

As a DUI Lawyer, my focus is on extracting my Client from as much trouble as possible. While Legal Fees are an important issue to both me, and my Client, those fees are just one of several costs involved in a Drunk Driving case. In the same way that a physician generally cannot and does not concern themselves with the associated costs involved in properly treating an ailment, (meaning things like bandages, physical therapy, prescriptions, etc.), a Lawyer does not have a specific price figure available to tell someone how much a DUI will ultimately total once all associated fees and costs are calculated.

It can be generally observed that the better the consequences are managed, the less the whole debacle will cost.

Money4.jpgThere are a few things that are pretty much written in stone, however, when it comes to the cost of getting popped for a DUI. Here are 2 that top any list:

1. It's going to cost, and it's going to cost a lot. Even if you have been completely and totally wrongfully arrested for a DUI (which is, in itself, not a very common occurrence), just demonstrating that is going to require a substantial Legal Fee.

2. Unless the case is somehow dismissed, or "knocked out," there will be lots of additional costs and fees for about 2 to 3 years to come. They run into the thousands of dollars.

I was motivated to write this article precisely because, as a Drunk Driving Lawyer, my primary concern is to protect my Client from as many potential consequences of a DUI charge as possible. Some of those consequences are purely financial in nature, but others, like going to Jail or getting stuck in some Rehab, are not. Let's examine some of the money consequences of a DUI charge in the following paragraphs.

First, let's assume we're talking about a case that is not so weak that it will be "thrown out," or dismissed for some unlikely reason. Instead, we'll assume that we're talking about the garden variety, "got-pulled over for weaving at 2 a.m." kind of DUI.

The Arrest itself will cost money. Many cities and townships have "cost recovery statutes" that mandate that a person pay back the municipality for the police time, and supplies involved in their arrest, booking, and jailing. These costs can range from $150 to $350.

Getting out of jail the next day will often cost money. Sometimes, a person is let out after someone comes up and posts a $100 "Interim Bond," while in other cases, the person is held until they can be brought before a Judge or Magistrate and have a formal Bond set. These bonds can range from $100 to $750.

Continue reading "Getting a DUI in Michigan - It's Going to Cost a Lot!" »

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June 14, 2010

Michigan DUI - Field Sobriety Tests in Macomb, Oakland and Wayne Counties

As a DUI Lawyer, almost every case I handle involves the Client having performed some Field Sobriety Tests before being arrested and charged with the Misdemeanor Offense of DUI. Sometimes, the Client will tell me that they did well on them, but the Police Officer just kept giving them more and more to do, until they eventually failed.

Of course, what any DUI Lawyer hopes for is that the Police Car was equipped with a video camera, which was running, while the Client did, in fact successfully perform all the field sobriety tests. To say those cases are in the minority, however, would be a rash understatement.

Field-Sobriety-Test3.jpgIn most cases where I have obtained the video, it either shows the Client clearly impaired by alcohol (even though her or she may not have thought so at the time), or fails to show anything one way or the other, leaving the Police Officer's report of the person's failure of one or more of those tests un-contradicted.

There is a whole science to Field Sobriety Tests. That's far outside the scope of this article, and in fact would require a rather long series of them to even scratch the surface. For our purposes, we're going to talk about the generally well-recognized reality that, at the point a Police Officer asks a Driver to perform Field Sobriety Tests, they have essentially made up their mind that the person is going to be arrested.

In fact, I have never even HEARD of a case where a person was given Field Sobriety Tests and then let go. Now, no one calls me when they HAVEN'T been Arrested for a Drunk Driving, so it's not like I'm in any position to hear both sides. Still, I doubt anyone of us has ever met, or heard of a case where a person was pulled over, given Field Sobriety Tests, and then told to be on their way.

Just as a preliminary matter, in every Police Report I have ever read in a DUI case (and as a matter of course, a DUI Lawyer MUST read the report before even thinking about what to do in any particular case), the Officer has noted that the Driver's eye's appeared "red," or "bloodshot," or "glassy," and that their speech was "slow,' or "slurred," and that they noticed a "strong odor of intoxicants" coming from the driver as he or she spoke.

Continue reading "Michigan DUI - Field Sobriety Tests in Macomb, Oakland and Wayne Counties" »

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May 24, 2010

DUI and OWI in Michigan - The Big Deal About and Meaning of "Impaired"

As a DUI Lawyer, I have written extensively about this subject, and have frequently talked about "Impaired Driving," or "Impaired." In most articles I have seen, both my own and those written by others, the subject of Impaired arises in a discussion of DUI in general. This article will focus specifically on Impaired Driving, and attempt to explain why it's such a big deal, in so many ways.

If you have been searching for information about a Michigan DUI, or have spoken with anyone who works in the Court, Law Enforcement or Legal System, then you have no doubt heard the term "Impaired."

A few drinks.jpgIn Michigan, Drunk Driving, or DUI, is technically called Operating While Intoxicated, or OWI. Not that many years ago, the technical name for Drunk Driving was "Operating Under the Influence of Liquor," or OUIL. When Michigan adopted the national standard setting Bodily Alcohol Content for Drunk Driving at .08, it likewise change the name of the Offense from OUIL to OWI. Under the old OUIL Laws, Drunk Driving in Michigan was defined as having a Bodily Alcohol Content (BAC) of above .10.

Also, under the old OUIL Laws, a person with a BAC of between .10 and .07, was guilty of a less severe form of Drunk Driving, known as Impaired Driving. In essence, Impaired sort of meant driving with a "buzz," while OUIL meant driving while Drunk.

When OWI with it's .08 became Michigan Law, Impaired Driving was NOT abolished. Instead, the old .07 standard was dumped, leaving Impaired with no defined BAC.

This amounted to a HUGE break for anyone who makes a mistake by driving after having had a little too much to drink, especially for those who have had no prior DUI cases for more than 7 years from the date of any new charge. Just to be clear, any 3rd Offense in a person's LIFETIME is a Felony, so we're only talking about 1 prior, here.

The break and benefit of an Impaired is that it carries less severe penalties than does an OWI. Both the old OUIL and its successor, OWI, carry the same penalties. Let's compare the penalties of Impaired to those of OWI, so we can see why Impaired can be considered such a huge break:

Continue reading "DUI and OWI in Michigan - The Big Deal About and Meaning of "Impaired"" »

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May 17, 2010

Michigan DUI Convictions and the Mandatory CDL Suspension

As a DUI Lawyer, the title of this article makes perfect sense to me. Anyone who holds a CDL undoubtedly understands it as well. The purpose of this article is to examine what happens to a CDL when a person gets a DUI while driving their personal vehicle. If you don't know what the term CDL means, then the good news is that you probably don't have anything to worry about, even if you're facing a DUI. For the curious, however, CDL is an abbreviation for "Commercial Driver's License."

A CDL allows a qualified driver to operate a commercial vehicle. This includes panel trucks and big rigs, and all kinds of other vehicles.

Trucks.jpgIf you have a CDL, and especially if you use it as part of your livelihood, then getting a DUI is devastating. Back in 2005, Michigan increased the penalties for CDL holders to require that all CDL privileges be completely suspended for a full year when a person pleads to, or is found guilty of, any DUI related charge, such as OWI, Impaired Driving, or Operation Under the Influence of Drugs.

The Law itself is very clear. This action is mandatory, and there is no way to Appeal it, or have any kind of "restricted" license. The bottom line here is that if you get convicted of a DUI, even if it involves operating your personal vehicle, your CDL is completely gone for a year.

It certainly is understandable that a getting a DUI while operating a Commercial Vehicle would result in losing a CDL. However, the law here goes much further. It imposes upon a CDL holder a higher standard of driving responsibility than it does on a non-CDL holder, including when a CDL holder is simply doing his or her normal, personal driving. In an upcoming Blog article, we'll examine in more detail just how far this goes, because the law also imposes CDL penalties for a bunch of other offenses, all while the CDL holder is only involved in personal, and not commercial, driving.

Anyone with a CDL can imagine just how devastating this 1-year suspension can be. If a person drives a truck for a Utility Company, for example, they can no longer do that for the year during which their CLD is suspended, although typically, they never lose the right to drive their personal vehicle, except, perhaps, for a short period of dealing with a Restricted License.

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May 14, 2010

DUI in the Detroit Area - How the BAC Breathalyzer Result Affects Your Case

As a Lawyer who is in Court for DUI cases multiple times every week, I read more Breathalyzer results than you can imagine. This article will focus on a very important, but often-overlooked aspect of what's called the "BAC" in a DUI case. This is NOT an article which will discuss the theory of Breathalyzer accuracy and all that. Instead, this article will focus on how Breathalyzer results can and do affect every DUI case that makes it into Court.

Earlier this week, I handled a DUI for a fellow who had been stopped for swerving across the road. After his Arrest, he was taken to the Police Station and given a Breathalyzer test using the Datamaster machine. His test results were .21 and .22. We'll get back to his case, and the example it provides, later. If you are facing, or have had A DUI, then you have most likely met this machine. If not, you probably had your blood taken.

BAC2.jpgAt the conclusion of the breath testing, the machine prints out a form and the person tested receives a copy. That copy is usually pink and looks like a big store receipt. It list details of the test, and the results are titled "BAC." This stands for Bodily Alcohol Content." Sometimes, people mistakenly refer to BAC as "Breath Alcohol Content," or "Blood Alcohol Content."

One of the questions any Lawyer who regularly handles DUI cases will quickly ask a prospective Client is something like "what was your BAC?" That BAC score is very important in determining the severity of a person's case. In fact, that score often provides loads of information about a DUI case, and what's likely to happen as a result.

For starters, the BAC is often used as a "wet thumb test" to make an on-the-spot determination if a person is a big drinker or not. Now I'm not saying that this is scientifically accurate, but I am saying that Cops, Prosecutors, and, most importantly, Judges, look at the BAC as a sort of barometer to determine if a person is a real lightweight, or a big drinker.

Let's look at a few examples: If a person is arrested on a Thursday night for a DUI, and their BAC is .23, then the Judge (or Magistrate) who handles their Arraignment is going to know that their Bodily Alcohol Content was about 3 times the legal limit of .08. That means they were very, very drunk. On the other hand, if they weren't very, very drunk then they are a hardcore drinker. A lightweight, newbie drinker could never get a BAC that high. In other words, a .23 BAC means a person is probably a big drinker, whether they were drunk out of their minds, or not.

Continue reading "DUI in the Detroit Area - How the BAC Breathalyzer Result Affects Your Case" »

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May 10, 2010

How a Michigan Criminal Record will Ruin Your Career...or Not!

As a Criminal Attorney, I generally find myself involved with people at one of the worst times of their life. Since I don't handle things like Rape and Murder cases, I usually represent good, decent people who have simply made a bad decision, or otherwise failed to exercise good judgment and wound up getting caught in a bad situation. Most of my Clients face things like DUI, Possession of Marijuana, or other "victimless" crimes. In that regard, they typically, (and correctly) feel that this instance of poor judgment does not present an accurate picture of the kind of person they are, or what they're all about.

Thus, it's not unusual for me to be asked by a Client facing a DUI, for example, "How long will this stay on my Record?" Then, when I have to tell them "forever..." they usually become a bit frustrated (not at me, thankfully) and respond with something like "So that's it? I'm screwed if I want to apply for a different job?"

light-at-end3.jpgYou can insert pretty much anything, from getting a job, to getting a degree, or using that degree, or going into some occupation or other, or getting a promotion, or whatever, into that last sentence after the part where the Client says "I'm screwed..."

And although they do, at that moment, feel utterly and truly "screwed," the fact is, no matter how bad it might seem right then, it's almost never as bad as they fear.

An example from my own past is serves as a good example:

Years ago, when my wife and I were buying our first house, we had applied for a mortgage, and had been assured that we would be approved. Based on that, we found our home, and made an offer, which the seller accepted. As the days wound down, our mortgage was still not formally approved. Days came and went, and we found ourselves very near the closing date, with no mortgage approval. The closing day came, and had to be postponed. That next date came, and had to be put off, as well. The seller was freaking out, and we were freaking out. The seller told us that the deal would either have to be closed right away, or it would fall through.

I called my mortgage broker, and explained to his assistant that my deal was about to collapse unless we got that approval right away. In response, he told me that he hears that every day, and not to worry. In truth, I became angry, wondering who in the heck this guy was to tell me not to worry when I darn well knew that my deal was about to fall through! I didn't give a hoot about anybody else's situation; I just cared about mine.

Continue reading "How a Michigan Criminal Record will Ruin Your Career...or Not!" »

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May 7, 2010

Drunk Driving and Traffic Tickets in Michigan - The Money-Making Speed System

A recent Channel 7 News story about local Police cashing in on Tickets struck a familiar chord with me. A big chunk of my Practice involves DUI's and Traffic Tickets. I often find myself explaining to a Client that, above and beyond any facts in their case, it represents revenue to the City in which the case was brought. Now let's be clear, I'm not talking about major crimes here. Instead, I mean DUI's, Suspended/Revoked License charges, Traffic Tickets, Possession of Marijuana and similar, local Misdemeanors.

I could literally list hundreds of examples, but one that comes up as much as any other occurs when a Client has been arrested for a DUI. The person might have been pulled over for speeding, and then ask me something like "I was only a few blocks from home. Why couldn't he (the arresting Police Officer) have just let me call home and get a ride?"

money.jpgI then explain to my Client that, besides the fact that Driving Under the Influence is a crime, to the City (or Township, or Village, or whatever) their arrest represents revenue. And a nice chunk, at that.

In addition to the Fines that the City picks up in one of these cases, the Court supports itself by imposing Costs, as well. Add to that the cost of supervised Probation for a year or more, and just letting that DUI Driver go means sending better than a thousand dollars out the door.

Even a simple Traffic Ticket, which represents only a few minutes of Police time, generates better than $100. If you figure that into an hourly rate, the Police Officer is more than earning his or her salary back for the City.

This is why, in most Traffic Ticket cases, a person with a decent Driving Record can hire a Lawyer, take the case to Court, and wind up walking out with a deal that keeps any and all points of their Record. Of course, part of that deal is paying the fine on a "non-reportable" Traffic offense. From the City's financial point of view, they are still making money.

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April 30, 2010

License Restoration in Michigan - Getting Back on the Road Legally

It's kind of funny to be called "The License Guy" by your fellow Lawyers, but because such a large part of my Practice involves Driver's License Restoration cases, I take it as a compliment. Occasionally, I am pulled aside in Court by some Lawyer (even on the Prosecutor's side) and asked a question about License Restoration. Frequently, the question involves a complicated issue, and within a minute or two, the person to whom I'm speaking says something like "give me your card, I'll have them call you."

One of the things I have learned from these "do you have a minute?" questions is that there is a prevailing belief that has almost reached mythical status about the impossibility of winning back a Driver's License once the person has had it Revoked because of multiple DUI's. Most people are surprised to learn that winning back a License is very possible. A few, on the other hand, think all a person has to do is file for an Appeal, show up, and say they haven't been drinking, and the License will be Restored. Neither of these are true at all. The truth, as usual, lies somewhere in the middle.

happy-driver3.jpgEven the Secretary of State knows that lots of people think that once the License has been Revoked, it's gone forever. In the Secretary of States' Official Publication, the DLAD Practice Manual (published before the DLAD, then known as the Driver Appeal and Assessment Division, changed it's name to the DAAD, or Driver Assessment and Appeal Division) the Secretary of State even says, about itself, that:

The Department is aware that there is a perception that the agency "never returns a license" in habitual violator appeals.

This underscores the fact that there is a widespread belief that these cases are impossible to win, and yet nothing can be farther from the truth. In the previous Blog entry, I noted that of the 25 or so Appeals I had filed, and for which I had conducted Hearings at the time of the article (the first quarter of the year 2010), I HAD WON EVERY ONE!

Now, there's no magic wand that I have that allows me to do that. Sure, I'm darn good at this, but part of that being good is deciding which potential Clients are ready to file an Appeal, and who needs some more work and must wait.

Continue reading "License Restoration in Michigan - Getting Back on the Road Legally" »

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April 23, 2010

DUI in Michigan and why Having a Prior MIP Complicates Things

As part of my Drunk Driving Practice, I handle lots and lots of DUI cases. The first question any DUI Lawyer has for a potential Client is "Do you have any priors?"

Often, the Client will indicate that they don't have any prior DUI's, but will mention that they had an MIP (which stands for Minor in Possession of Alcohol) when they were younger. This article will look at how a prior MIP (or several prior MIP's) can complicate a DUI charge.

alcohol2.jpgThe biggest concern in any DUI case (besides Legal Fees, Court Costs and staying out of Jail) is determining if the person charged has either an alcohol problem, or at least the potential to develop one.

This is why, BY LAW, prior to being sentenced for a DUI (and it doesn't matter whether it's a 1st, 2nd, or 3rd offense), a person must undergo a mandatory alcohol evaluation, sometimes called a PSI, or a Screening, or and Assessment. The Court is supposed to order a DUI Driver into the appropriate counseling or treatment if it is determined that they either have a problem, or present a potential or risk of developing one. This facet of any Sentencing is part of a person's Order of Probation.

Beyond the increased statistical risk that anyone with a growing number of alcohol-related Criminal Offenses has, the simple fact of the matter is that anyone in the Judge's seat sees a prior MIP as evidence of more inappropriate drinking. I often tell my Clients that, in a very real way, the Judge can write the date of that first MIP on a board, and then put the date of the new DUI to the right of it, and connect them with a line, and say "this is how long we know you've had a problem." A person may not be an alcoholic, but having more than one Drinking Offense in your past sure kills any notion of the DUI being an "isolated incident."

It is, of Course, the job of the Lawyer to educate the Client about that mandatory alcohol assessment, to make sure the Client avoids tallying up a score that indicates a problem, or a problem more severe than could otherwise be the case. On these alcohol assessment tests, the higher a person's score, the more severe their alcohol problem, or the greater the likelihood or potential there is for them to develop one. The lower their test score, the better things are.

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February 26, 2010

Another Big Scam Involving DUI Cases that is Always Untrue

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.

scam_alert.jpgThe "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.

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February 24, 2010

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

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.

scam231.jpgWhen 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.

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February 17, 2010

Michigan Drunk Driving - What Happens in a DUI Case

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.

Judge_C_bench.jpgThis 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.

Continue reading "Michigan Drunk Driving - What Happens in a DUI Case " »

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February 1, 2010

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

As a License Restoration Lawyer, I help people understand the License Restoration process and answer lots of questions about it. It has been my hope that the numerous articles on the Blog