In my role as a Michigan DUI lawyer, I have never had a single client who didn’t hope his or her drunk driving charge could just go away. It is, and always should be the goal of every lawyer, in every DUI case, to find a way out of the charge. While it is true that most DUI cases don’t get thrown out of court, it is also true that most basketball players don’t score every time they make a shot, either, but that never stops them from trying. This analogy is pretty universal, because every surgeon hopes for success, every airplane pilot wants a smooth landing, and so on.

61877-300x266The key to success in a DUI case lies in the effort. Hard work is all well and fine, but smart work is always superior. If you have to dig a 10-foot by 10-foot hole at least 6 feet deep, you’ll do a lot better using a backhoe and laser measuring tool rather than a garden shovel and a yardstick. Because my practice is concentrated in DUI cases and driver’s license restoration appeals from drinking and driving convictions, my team and I work on these issues all day, every day. You can’t get that depth of experience from a law practice that also includes a much broader spectrum of criminal charges and/or other kinds of cases.

One of the most important tools needed to beat a DUI charge is the lawyer’s mindset. This lesson came to me many years ago from a very successful criminal trial attorney who explained that when a defense lawyer begins examining the evidence in a case, he or she should assume there are problems with it, and it’s his or her job to find them, rather than looking at the evidence to “see” if there’s a problem.

As a Michigan driver’s license restoration lawyer, I field multiple inquires every day from people interested in getting back on the road. The whole idea of being able to win back one’s driver’s license involves several considerations beyond just being legally able (eligible) to plow ahead and file an appeal. In this article, I want to briefly examine them. We’ll start with situations where a person cannot proceed, move next to those where the ability to successfully do so becomes a definite “maybe,” and then move on to what a person needs to move forward and actually win.

its_not_enough_button-300x286I need to explain myself a little bit, first. I earn my living doing license appeals and handling DUI cases. Whenever I take a driver’s license restoration appeal, I guarantee to win it. I’m in business to make money, but my guarantee also means that I put my money where my mouth is. While it’s obviously NOT in my financial interest to turn away any potential client, having a guarantee also means it’s not worth my while to undertake a case unless I know I can succeed. When someone hires me, they’ll only pay me once to get back on the road. This means I know, because I have to know, everything about what separates the “yes” cases from the “maybe” cases from the “no” cases.

The first and most important thing about getting your license back is that you must be eligible. I get all kinds of compelling emails from people, some of whom pour their hearts into long explanations about how much they need to drive, but who are simply not eligible to move forward. When your license is revoked for multiple DUI’s by the Secretary or State, you are completely ineligible to appeal for a minimum”period of either 1 year (for 2 convictions within 7 years) or 5 years (for 3 DUI’s within 10 years). Until that time period has run, there is no workaround, and nothing that can be done to get a person any kind of license in the meantime. A lot of people don’t quite get this…

The day before this article was written, I had called to check in with my office after finishing (and winning) a driver’s license restoration appeal hearing in Livonia. Both Ann, my senior assistant, and Genevieve, one of the attorneys, told me that they had almost simultaneously answered nearly identical phone calls, regarding ignition interlock violations: both callers had violated by testing positive for alcohol, and both callers freely admitted that they did so because they had been drinking. To be clear, neither had been my client when they originally won back their licenses.

tn_No_BS-300x300Not to be too delicate about it, but WTF? These 2 guys had only recently won their cases by submitting documents supporting their sworn testimony that they had quit drinking. They went through actual hearings and answered questions that convinced the hearing officers that each one was a safe bet to never drink again. Then, on top of all the other flawed thinking that went into these disasters, they figured they could somehow drink anyway, and fool the ignition interlock device.

My first thought was, how did their lawyers miss this? I’m sorry, but there’s no other way to describe what happened other than as a complete failure of lawyering, in every sense. Even if these guys were Academy-award caliber actors, and they managed to fool their lawyers, the counselors who did their substance use evaluations, and the hearing officers who decided their cases, how did it come to this? There comes a point, at least in my office, where we explain to each client how the interlock unit works. We make clear to our clients how to avoid problems with the device, all of which is predicated on the person NOT drinking.

In part 1 of this article, we began looking at the factors involved in answering a question I get all the time in DUI cases – “should I start going to counseling or AA?” In terms of how we use a person’s involvement in any such treatment (if at all) within the framework of a DUI case, the best answer I can provide is that, “it depends.” Every case is different, as is every Judge. That said, there are also certain generalities to DUI cases that cannot be overlooked.

AA-books-and-round-table-300x200One that is very important and, indeed, pervasive, is what I call the “alcohol bias.” Courts have been getting tougher on DUI cases year after year ever since I became a licensed attorney nearly 30 years ago, and that’s only going to continue. Within a few weeks of me starting this article, the husband of a local Judge was killed by a drunk driver, and 16 days later, an entire Michigan family of 5 people were killed on I-75 in Kentucky by another drunk driver. Those are just some of the most recent local DUI-related things to take place and receive lots of negative attention within less than a month of when this piece was written.

In late December of 2018, Utah became the first state in the country to drop the legal limit for DUI to .05, something I predict will be the start of a trend.

As a Michigan DUI lawyer, one of the more common questions I am asked by a potential or new client is whether or not they should get into counseling and/or go to AA. In this article, I want to address that concern. There is a lot more to this than a simple “yes” or “no” answer, so we’ll address the various considerations involved over 2 installments.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2019/01/Talker-2.--300x196.jpgMy analysis is influenced by a lot more than just my being a DUI attorney, because I also bring a strong clinical perspective to this, as well, having completed a post-graduate program of addiction studies and having worked daily, for almost 3 decades now, with both addicted and recovering populations. I believe that my job is to help my clients in every way possible, not just in the purely legal sense. Of course, it would be easier for me to just charge a fee and just focus on the legal stuff, but my conscience always reminds me to treat others as I would wish to be treated, so I live and work by that golden rule.

Let’s begin, then, by refining the scope of our inquiry a bit. After a drunk driving arrest, when someone asks me, as a lawyer, about going to AA or counseling, what they really want to know is if doing so will “help” their case and if doing so will look good. We’ll examine that aspect of things later, but I think the first question should really be whether or not the person him or herself thinks they might need a little help.

In part 1 of this article, I pointed out that when a person wins a Michigan driver’s license restoration case and is required to use an ignition interlock, his or her performance while using it will be carefully monitored. I further noted that many (if not most) people do run into some kind of problem with the device while on it. Because the Michigan Secretary of State has certain expectations and requirements for proper interlock use, if a person does have any “issues” while on it, he or she will have to be explain those away to the satisfaction of a hearing officer, either at a violation hearing, or at least when he or she appeals for a full license.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2019/02/Requirements-vs.-Expectations-300x241.jpgUnder the law, the person seeking to win (or keep) a license has the burden of proof. It means that if a person is violated while on the interlock, he or she has the burden of proving that a positive alcohol result did not occur from beverage consumption, or that a skipped test wasn’t missed because he or she had been drinking. Ditto for a tamper/circumvent violation. This works the same way when a person is going for a full license and there is any issue on his or her final interlock report.

Years ago, a now-retired hearing officer told me that during an interlock violation hearing, he discovered that a guy had disconnected the power to the device for a few minutes, only to hook it back up after changing the settings in such a way that it would always provide negative breath results, even if he had been drinking.

This article will be about ignition interlock violations, and also what you’re expected to do while on it. We will examine how a person’s performance on the interlock for the 1st year after a successful driver’s license restoration appeal affects his or her ability to get a full license thereafter. This installment will be broken into 2 parts examining the requirements for and expectations of a person using an interlock unit, and how they must be met to win your full license back.

download-5Let’s begin by explaining a key word here: violation. Almost everyone involved in the license appeal process, including driver’s license restoration lawyers, like me, and even the Michigan Secretary of State Administrative Hearing Sections (AHS) hearing officers, use this word rather loosely, and very often, incorrectly. Although it’s not accurate to do so, the term “violation” is frequently used to describe any situation where something goes wrong with the interlock unit itself, a result it produces, or how a person uses it.

To be technical about it, an ignition interlock violation consists of an instance or instances of non-compliance with the legal requirements for use of the machine that results in a formal violation of a person’s restricted license. If that formal violation is not successfully resolved with the Secretary of State (almost always after a full-blown hearing), the person’s license will be be revoked all over again, for good. This is called a “reinstatement of original action.”

In part 1 of this article, we saw that when a person quits drinking and then goes back to it, without calling that a relapse, it shows that he or she doesn’t really understand sobriety. This, of course, will kill any chance of winning a driver’s license restoration appeal, but it also can create problems for a pending drunk driving charge. In 2nd and 3rd offense DUI cases the analysis of relapse is somewhat different than in a 1st offense case, but the importance of how a person views his or her relationship to alcohol – both past and present – cannot be overstated in any drunk driving, license appeal, or other case where there is an inquiry about that relationship.

IMG_7100-copy-300x209In each and every 2nd or 3rd offense DUI case, the whole world, and especially the court system, believes the person has a drinking problem. One of the chief aims of the legal process is to help a habitual offender (that’s the legal term in Michigan for anyone who gets up a 2nd or 3rd DUI) understand that however infrequently he or she may drink, whenever they do, it’s risky. The court’s goal in any 2nd or 3rd offense DUI is to get a person to stop drinking for good, if not for his or her own sake, then at least for the safety of the public.

The goal in any 1st offense DUI case is also to help anyone who has an alcohol problem. However, unlike in 2nd and 3rd offense cases, where a person begins with the presumption that he or she has such a problem, in 1st offense cases, the court relies upon the mandatory alcohol screening to see if a person does, in fact, have a drinking problem, or is otherwise at elevated risk for one to develop.

If someone picks up a drink after having abstained for any length of time and does not think of that as a “relapse,” then he or she probably doesn’t have a good understanding of what it really means to be sober. This is a problem for a driver’s license restoration appeal, and can complicate a Michigan DUI charge, as well. This will be a short, 2-part article (it was just a bit too long for one installment) examining the importance of how a person self-characterizes drinking again after having stopped for a while.

Success-are-stepping-2-300x180More than anything else, it shows that the person was never committed to abstinence as a component of sobriety. Only when a person genuinely accepts and understands that his or her relationship to alcohol has become troublesome does he or she also know that any drinking thereafter is a problem. That kind of insight changes everything.

When a person who hasn’t had a drink for a certain amount of time picks up again (even a single drink), but doesn’t consider it a relapse, or “slip,” it is safe to say that he or she was never really “sober “in the first place. In fact, it’s safe to say that he or she doesn’t even have a basic understanding of what real sobriety is all about. This kind of thinking stands as a complete roadblock to success in a driver’s license restoration case, and can turn a regular drunk driving case into a nightmare.

This is part 2 of an article examining why asking “how much do you charge?” is the dead-wrong way to go about looking for a lawyer for a criminal, driver’s license restoration or DUI case. In part 1 of this piece, I pointed out that you won’t find the right lawyer by asking the wrong questions, nor will you ever get a high standard of legal services at cut-rate prices. I did caution, however, that plenty of lawyers charge fees way in excess of the level of services they provide, meaning, that it’s also easy to get “taken” by paying premium fees for mediocre skills.

Cheap-2-274x300I also noted that attention to small details is one of the key things that differentiate better lawyers from the rest of the pack, especially those market themselves based on low cost. These little issues are usually not front and center or glaringly obvious in an active case, but are the kinds of things that show up down the road, sometimes years later, and make a person wish he or she would have known or thought about them at the time. The example I used in to make my point in part 1 was having to report a DUI to a current or prospective employer, or to a licensing agency.

Assume that when the hypothetical case was pending, the person may have thought things were great simply because he or she didn’t get any jail (and I made clear that jail is almost never on the menu in a 1st offense DUI case, anyway), and only served a year on probation while having to complete an alcohol counseling program.