DRIVER'S LICENSE RESTORATION

Win your License Restoration or Clearance Appeal the first time, Guaranteed.

MICHIGAN DUI

A good strategy can make a huge difference right away.

CRIMINAL CASES

Stay out of Jail, save your Record, and avoid Difficult Probation.

As a local, Detroit-area criminal and DUI lawyer, I am in court just about every single workday, strategizing and speaking to make things better for my clients. however, lots of lawyers are in court everyday, so that alone doesn’t make any particular one better than all of the others, in the same way that the hot dog vendor is at the hockey arena almost everyday, but that doesn’t make him or her any kind of star player. It’s a matter of instinct and talent. If you’re facing a probation violation because you’ve messed up, you need to hire a real star, meaning the kind of lawyer who can talk the stripes off a tiger, talk you right out of trouble, and out of going to jail. In this setting, the ability to persuade is the most important trait you need on your side.

Helping-Hand-298x300If we’re going to be honest about probation violations, then we need to recognize that the majority of them occur because a person has either done something prohibited (like consume alcohol, use drugs, or pick up a new charge) or not done something required (like fail to complete some kind of classes or counseling). Less frequent, but still common, are those cases that involve things like a missed test (the courts basically conclude a test was missed because it would have been positive) or a false-positive test. For the most part, how and why ever it may have happened, if you’ve been violated, you’ve probably screwed something up, even if that wasn’t your intent. Judges, for their part, spend an enormous amount of time everyday listening to excuses about all this. For example, one of the most common (and least accepted) reasons given for a positive alcohol test is the use of cold medicine. It is so worn out that it is known as the “NyQuil defense” and so widely disbelieved that you can practically read the frustration on many Judges’ faces as someone tries to use it. Beyond the NyQuil defense, every Judge has heard every other excuse in the book, probably a thousand times over, so to get the best result in a PV, you can’t walk into court and sound like everyone else.

In a very real way, I think of probation violation cases as the real test of a lawyer’s ability to communicate effectively and speak persuasively. There are some really great attorneys who can make brilliant legal arguments about things like evidence and legal procedure, but that’s all dry stuff. When you’re standing in front of the Judge for violating probation, your lawyer needs to be the exact opposite of dry. As much as this requires a superb extemporaneous speaking ability, there has to be substance to what’s being said, as well. There’s an old saying that “if you can’t dazzle them with brilliance, baffle them with bull$hit.” Neither of those things are particularly useful here, or, maybe, you need a little of both. Remember, your Judge, like every other Judge, has heard it all. As a lawyer, when I’m handling a probation violation, I have to explain my client’s situation, keep the Judge’s attention (by not sounding like everyone else), and then persuade him or her to not lock up my client. At the end of the day, it’s what doesn’t happen to you that matters most, so all of this stuff can sound real good, but it’s really only worth anything if it keeps you out of jail.

There is s big difference between being legally eligible to file a Michigan license restoration or clearance case and having a good chance of winning it. Unfortunately, the Michigan Secretary of State does not explain this anywhere, so most people learn the difference when they try, only to lose, and then read why the hearing officer denied their appeal. Here, I fault the state entirely, both because the rules allowing a person to file an appeal after either a 1 or 5 year revocation seem to suggest that eligibility is enough to win, and then for utterly failing to provide any clarification or explanation of why this is not the case. If the reader senses some anger on my part, you’re not wrong. I spend (or waste, more accurately) more time than I’d like having to explain this again and again to prospective license restoration clients who contact me about winning back their license, who, although eligible, are not yet ready. In this article, I want to examine the question of how long you should wait (or, to put it another way, how much sober time you need) before trying a license appeal.

espera-300x267There is no clear, simple answer to that question other than the age old, “it depends,” and that really provides a good starting place for this examination, because we’ll being by looking at what it depends upon. As a preliminary matter, and although it kind of goes without saying (but I’ll say it anyway), you can’t file a license restoration or clearance appeal until you are legally eligible. If you have 2 DUI convictions within a 7-year period, you will be ineligible to file for 1 year. If you rack up 3 or more convictions within 10 years, then you cannot file for at least 5 years. This is a long time, and I get many inquiries want to know if there’s anything that can be done to shorten that time frame, or some way to get a restricted license. Although a bit off subject for this article, the answer here is easy: no. There is no way to shorten your period of revocation, and no way to even file a license appeal of any kind until you reach your eligibility date. The only possible exception to this applies some people whose licenses have been continuously revoked since before 1998. Everybody else has to wait. Now let’s turn our attention back to those who are eligible.

You have to understand that the key to winning your license back is proving sobriety. The Secretary of State hearing officers who decide these cases are legally given wide discretion to decide these cases, and decide who has been sober long enough and seems like a safe bet to not drink anymore. They have the legal authority to require a period of sobriety of “not less than 12 consecutive months” and that is not otherwise arbitrary or capricious (essentially, that means ridiculous to the point of being illegal). Thus, while legal eligibility opens the door, it’s sobriety that wins the case. The real “meat and potatoes” of any license appeal is that you have quit drinking, and have the ability and commitment to remain sober for life. This all means that you have to accumulate a certain amount of abstinence to be considered a serious candidate to win your license back. Although there is no specific formula as to how long, it’s kind of intuitive that the more serious your drinking was, the more sober time you’ll need under your belt before moving forward.

As a Michigan driver’s license restoration lawyer who handles a ton of out-of-state clearance cases, I want to use this article to look at how you can appeal after you’ve lost a “do-it-yourself” administrative review filed with the Michigan Secretary of State’s Administrative Hearing Section (AHS). As a rough estimate, I’d say that about half of my clients who no loner live in Michigan have tried this approach at least once before they hire me. Given that 3 out of 4 such appeals lose, it poses very little financial risk to me to tell anyone thinking about it to give it a shot; I’ll be here when you need me. In this article, I want to focus in on some of the more important issues that arise after a person loses one of these appeal by mail, and offer a few reasons why a person may seriously consider skipping it altogether and just doing it right the first time.

aid8066991-v4-728px-Appeal-a-Denial-for-an-Application-of-Benefits-Step-12-300x288To clarify a point frequently misunderstood, if you lose a license appeal after a hearing, you must wait another year to try again. If you lose an administrative review, you can immediatley request to come back to Michigan for a hearing, and you get do the process all over again with new evidence, including a new substance use evaluation (SUE) and new letters of support. This is ALMOST like 2 bites at the apple. To be completely honest about it, though, an administrative reviews loses because the evidence falls short of being good enough to win. In fact, someone out of state could spend a fortune hiring Michigan’s best criminal trial attorney to help him or her prepare one of these cases and still not have better than a 1-in-4 chance of winning. The experience necessary to be good at license appeals comes from doing license appeal. And even though I’m in business to make money, it’s not that I’m afraid I’ll lose a potential client if someone does this on their own and wins. If you luck out, then I say good for you. The problem for me is that when you do lose, it’s not because you got everything right. Sometimes, whatever you got wrong in a losing appeal can have a lasting and really negative effect on any future appeal. On top of that, it raises questions about your credibility if you go running in with all new and corrected (and different) information right after you’ve lost.

To be sure, I can fix most of the problems that caused the loss in the first place, but sometimes, there is an overarching sense of “timing” that just doesn’t square with immediately filing an appeal for a hearing with new evidence right after. This is hard to articulate, and really needs to be examined on a case by case basis. As I noted before, I’m in business to make money, and I don’t do that by NOT taking cases, or waiting to take them, but I also guarantee to win every case I take, so I have absolutely no reason to accept someone’s money for a case that won’t win right away, only to go in and lose and then have to do it all over again next year as “warranty work.”

The location of your criminal or DUI case is one of the most important factors in determining how it will turn out, and what will (and will not) happen to you. As a local, greater Detroit-area criminal and DUI lawyer, the very first question I ask when presented with any new case is “Where?” For example, a simple possession of marijuana case in one city can be potentially wrapped up in one court date, the whole thing kept off the person’s record, and result in nothing more than the assessment of reasonable fines and costs, while, across town, that same case could easily cost more than twice as much and land the person on probation with required drug testing, community service, and maybe even a “marijuana awareness” class (or classes), as well. There is really nothing you can do to change this, other than make sure your lawyer is familiar with how things are done in the court where your case is pending.

1304655796181855921-282x300It is certainly better if your lawyer is familiar with both the local courts in the broader geographic area where your case is pending, as well as the specific court in which you’ll be appearing. For me, that means all the courts in Oakland, Macomb and Wayne Counties. Even within the Tri-County area, however, there are some lawyers who spend so much time in any one particular court that they kind of miss out on the big picture of how things are done elsewhere. While there may be some truth to the notion that a lawyer who is “always” in one specific court really knows how things work there, it is also true that he or she may be too entrenched in that system to be capable of really standing up for the client and push for a different outcome. Think of the stereotypical teacher’s pet; you don’t want that for your lawyer. On the other hand, you certainly don’t want to be stuck with an attorney who isn’t in your court often enough to know how things are done there and, therefore, doesn’t know how to properly guide you through it.

What I’m saying, on the one hand, is that where your case arises is so hugely important that location plays a primary role in the outcome, and the lawyer you hire should be familiar with that court. What good does it do to bring in some attorney who can’t tell you how things are done there? On the other hand, I’m also saying that while experience with the court where your case is pending is important, you don’t want your lawyer to seem like he or she is employed there, either. That only creates a kind of unhelpful tunnel vision. Instead, the right amount of familiarity should be part of a broader understanding of how things are done across the larger local area. I can’t count the number of times I’ve persuaded a Judge to do something different (as in better for my client) by explaining how it’s done in another court. If you’re sensing that there is a kind of balance here, then you’re getting the point.

In my role as a Michigan DUI lawyer who concentrates his drinking and driving practice in the Metro-Detroit area (meaning Macomb, Oakland and Wayne Counties), I have published hundreds of informational articles about every facet of the DUI process on this blog, as well as my site. This article will be about alcohol and drug testing in DUI cases, and will also mark a slight shift from my usual approach, because beyond just confining myself to a mostly objective examination of the topic at hand, I also want to make a few “editorial” points, as well. Testing, both as a condition of bond and as a requirement of probation, has essentially become universal in local DUI cases. The inspiration for what the reader may glean as my attitude in this article came, quite literally, as I was looking at my computer screen thinking about what to write, and received a phone call from Ann, my senior assistant, describing the difficulty a client of mine was having as he struggled to comply with his testing requirement. This client lives in Florida, and has a DUI charge pending in an Oakland County district court. As I write this article, hurricane Irma is pummeling Florida, and many people from the state are evacuating, and pretty much everyone else is bracing for disaster. Everyone there is worried about just surviving, rather than urine or breath testing.

follow-the-rules-1-219x300As Ann explained how my client wanted to do his best to comply with the court’s order, despite having to deal with an actual hurricane, I couldn’t help but remark what a HUGE pain in the a$$ all this testing stuff has become. In fact, the whole “testing” thing eats up a ton of court time, and has grown into a monster industry (in every sense of the word) in its own right. For a lawyer like me, who handles DUI issues every single day, not a week, or even part of a week, goes by without some problem arising due to alcohol and/or drug testing. What makes this such a pain is that much of the time, it’s not about my clients getting caught drinking. Instead, I see endless non-drinking issues, like missed tests, a miscommunications about testing, or false-positive results. And for those who do imbibe and get caught, it’s often like the angel of bad luck has made sure that the ONE TIME they did have anything to drink, they had to test right after.

For all the problems testing creates, and there sure are a lot of them, the simple fact is that, as a tool to ensure compliance with an order to not drink or use drugs, it is effective. Most people will resist any offers to drink or party when they know they’re going to be tested. Moreover, the majority of people who winding up testing positive do so because they did, in fact, drink or use. In that sense, testing works. However, from where I sit, dealing with the fallout of honest errors (like a missed test) and false positives, I have to wonder if the overall cost time, effort, and money just hasn’t grown too high. One cannot sit through a morning or afternoon’s session in any courtroom without at least several testing issues being heard. Of course, most of them involve someone testing positive because they ARE positive for alcohol or other substances, but plenty of others involve things like missed tests and other situations where the burden of testing just became one thing too many in a person’s life. Most people don’t miss a test because they decided to skip it, stay home, and watch cartoons, instead. Most often, there is either a miscommunication about the need to test, or, the person simply got caught up in life, with things like kids and work.

This article will be another installment in my “loose series” about the Michigan driver’s license restoration and clearance process. Since the series has examined winning back your license from start to finish, our focus here will be on ignition interlock violations, which can only occur after you’ve won your license back. As casual as I’ve kept things in the previous 8 segments, this piece will be heavier in attitude, because interlock violations are very serious matters. Indeed, the first step in the violation process is for the Michigan Secretary of State (SOS) to revoke your license all over again (this is technically called a “reinstatement of original action). There is really no room for error once you have an interlock installed in your vehicle, and the tough approach of the state starts from the moment of the violation, includes the notice and the re-revocation of your license, and continues through the violation hearing itself.

violationsnoticeIf your violation occurs because you actually had been drinking, you’re pretty much screwed. That’s kind of the whole point of the interlock device. For those who haven’t consumed alcohol but find themselves facing a violation nonetheless (this makes up the vast majority of my clients), the process still isn’t going to be fun. In the first place, every single order granting a license appeal contains a very important (but often overlooked, or at least often forgotten) section in the back about proper ignition interlock use. It advises that, in the event of a missed or positive breath test, the driver should promptly go to the nearest police station and get a PBT (portable breath test). It further advises that if that cannot be or otherwise is not done, the driver should obtain a timely EtG urine test. Many people either don’t read this far into their order, or they read this part rather quickly and then forget about it. This becomes an issue when you show up for your violation hearing, because this evidence is essentially expected. While it is not legally required, the fact that it is specifically suggested in every winning license appeal decision means you didn’t follow directions very well, at your own peril. Despite that, most often, even in those cases where alcohol is detected, I know how to prove that it wasn’t from the consumption of an alcoholic beverage (assuming it wasn’t), and win the appeal.

It is both accurate and easy to observe that the state is tough on interlock violations, and while that’s true, it really misses the larger point that it’s your job – your most important job – to prevent one from occurring in the first place. Although the end result of a hearing is not quite as harsh as “zero tolerance,” it’s quite the opposite at the beginning, where if you screw up on the interlock just once, you’re quickly violated and lose your license all over again. If this isn’t bad enough, each of the hearing officers has his or her own take on things, so you really can’t be fully prepared for the hearing until you know who is going to be deciding it. Let’s see how all this shakes out…

In part 1 of this article, we began our examination of DWLS (driving while license suspended) and DWLR (driving while license revoked) charges in Michigan. I pointed out that there are 2 key considerations for anyone facing such a charge whose driving record isn’t so good: minimizing the consequences to that record, and also protecting your ability to drive. The criminal penalties for a DWLS/DWLR charge apply both in conjunction with and also separately from the administrative sanctions imposed by the Secretary of State. I noted that, as the lawyer, I am always on guard for situations like where getting a suspended or revoked license charge dismissed entirely still doesn’t avoid the further loss of the person’s ability to drive. Indeed, what may be a great plea bargain in one case can create a nightmare on another person’s driving record. I also explained that your prior record follows you, like it or not, and the less you have on it, the better. We acknowledged that, in the real world, people sometimes just have to drive, and, unfortunately, they sometimes get caught, as well. Exactly where that happens can be the biggest factor in how any case turns out. Just like a prior record, though, it is what it is. Here, in part 2, we’ll look at some examples of how the criminal consequences and administrative sanctions interact, and how it’s easy for even a lawyer to miss some of these finer points.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/09/08e50d3b-0660-48af-a87e-7463b1a5988c_1.94397e605ca2e9187a36f7b47d7d3975-300x218.jpegThe the old saying that “a little knowledge is a dangerous thing” is very relevant here. Many people, including lawyers, don’t understand that, when it comes to driver’s license issues, there are 2 separate tracks: what the court does (often, as required by statutory law), and what the Secretary of State does, separate from that, as required by administrative rule. This is a finer point that has HUGE implications for your ability to drive. Let’s look at a few variations of a hypothetical example that happens all the time in the real world.

Assume that Sober Sam had his driver’s license revoked about 3 years ago for 2 DUI’s. He hasn’t won it back yet, for whatever reason, so it is still revoked. One day, while driving home from work, Sam gets pulled over for speeding and is also charged with DWLR (driving while license revoked). Sam hires Lazy Lisa the Lawyer, and she manages to negotiate the dismissal of his speeding ticket and gets his DWLR charge dropped down to failure to display a valid license (often called “no ops”). Whereas the DWLR charge carries points, the further suspension of the driver’s license, and a driver’s responsibility fee assessment, the “no ops” carries none of those. Both the prosecutor and Lisa figure this will be good and safe for Sam because there is no further license suspension as a statutory penalty for this offense, and to him, it sounds like a good deal, so he gladly takes it, winds up paying a fine to the court and goes home happy.

Because of my work handling driver’s license restoration, DUI and suspended license cases, you could accurately call me a Michigan driver’s license lawyer. Quite literally, almost everything I do, every single day, involves driving, in some way, shape or form. I handle over 200 license restoration and probably at least another 150-plus DUI and suspended/revoked license cases each year. In the course of my practice, I have seen just about every situation you can imagine, and have had to resolve some license issues so complicated and tied in legal knots that you couldn’t make them up if you tried. Yet for all of that, everyone who finds themselves in trouble for driving on a suspended (DWLS) or revoked (DWLR) license does so for the same, simple reason – they got caught driving without a legal license to do so. When this happens, my job, as the lawyer, is aimed at minimizing the consequences. This involves a lot more than just keeping someone out of jail. In fact, jail is almost never a concern for me in these cases for 2 main reasons; first, for most people, going to jail simply is NOT on the menu, and for those whose circumstances (think: really bad record) make the possibility of jail something of a reality, I’m still usually able to keep them out, anyway. The real concerns in these cases are always the longer term consequences to your driving record and how this will affect your ability to drive in the future. We’ll split this article into 2 parts to explore them.

kiddie-car-300x198These 2 things – the consequences to your driving record and how your ability to drive in the future will be affected – are always connected, but also separate and distinct. We’ll examine this further, but to make my point, understand that, on the one hand, there are many situations where a driving offense can have a huge and expensive impact to a person’s record, but not interfere with his or her ability to drive, whatsoever. On the other hand, there are circumstances where a suspended or revoked license charge can be worked out in court to stay off of or otherwise have no impact upon a person’s record, but the incident itself can still result in him or her not being able to drive again legally for up to 5 more years. Fortunately, in the real world, most of the cases I see fall between these two extremes.

If and when you find yourself facing any kind of criminal charge, including DWLS or DWLR issues, the very first thing everybody looks at is your prior record. This can be a good thing, a bad thing, or not much of a thing. It doesn’t take a legal scholar to figure out that the less of a record you have, the better. Usually, though, a person’s license is suspended or revoked precisely because of some prior issues that show up on the driving (and even criminal) record, like previous DUI’s or suspended license convictions. Sprinkled in amongst them are the kind of “never been in trouble before” people who merely forgot to pay a ticket, only to find that out when they get pulled over and cited for DWLS. The main point here is that, within the context of a suspended or revoked license charge, it’s your traffic record that matters most, and the better it is, the better for you.

In part 1 of this article, I began my examination of why you should come back to Michigan to win the clearance of a Michigan “hold” on your driving record. If you now live out of state, the only other option is to file what’s called an “administrative review,” which is an appeal by mail with no hearing. I pointed out that at least 3 out of 4 of these appeals are denied, and wondered openly how many times those who eventually do win have tried before. I began by explaining that in addition to an actual hearing, the key reason for coming back (and hiring me) is that when I’m the lawyer, I control every aspect of the case, and nothing is left to chance. I made clear that it all starts with, and requires honest and genuine sobriety, meaning that you have quit drinking and are committed to an alcohol-free life. We then moved on to the substance use evaluation, which I characterized as “foundational” in a license appeal. Here, in part 2, we’ll pick up by looking at the other main pillar of evidence submitted in each case, the letters of support. From there, we’ll go on to examine how and why having a hearing is far superior to not.

Bear-2When filing any kind of license appeal, you must also submit at least 3 letters of support (although we require 4 in my office) in addition to the substance use evaluation,. These support letters are also foundational to a license appeal (think of the evaluation and the letters as the “support beams”), and I review and edit every single one before it’s submitted. Each year, out of thousand or more letters I look over, only a handful aren’t substantially fixed up by me, and those are almost always letters that aren’t for primary support, like when a fellow AA member attests that a person attends meeting, or an employer who doesn’t fully know about a person’s past confirms that he or she is a valuable part of the work team. As I said, these letters don’t really count as “support,” but they are helpful as add-ons to the letter package.

At it’s simplest, a real support letter describes a person’s sobriety. Whatever else, the very last thing these should get into is any kind of “good guy” descriptions that fails to provide solid evidence of your sobriety or are otherwise not observational and testimonial in nature. The letters need to describe your commitment to sobriety, provide examples of it, as well as, depending on the knowledge and perspective of the writer, how you came to it, and, if possible, detail how you are different now that you don’t drink than you were before, when you did. Some letters, by the very nature (think: time frame) of the relationship between the subject and the writer may NOT be able to address this, but they can still be helpful in otherwise confirming that a person sticks to his or her commitment to remain sober.

In my capacity as a Michigan driver’s license restoration lawyer, I have written extensively about clearing a Michigan “hold” on your driving record. Instead of yet another installment explaining the actual license clearance process (I’ve put up ample information about that), we’ll use this 2-part article to shift the focus to why a person should come back to Michigan and see me to get this whole clearance thing done once and for all. Some readers may not have yet attempted a “do-it-yourself” appeal to the Michigan Secretary of State’s Administrative Hearing Section (AHS), but many will have already tried mailing in what’s called an “administrative review,” only to have lost. What we’ll cover here applies whether you’ve tried before, or not. An administrative review is pretty much a sure loser. Statistically speaking, 3 out of 4 get denied, and there’s no telling how many times any of those who eventually do win have tried before. In fact, it is not uncommon for many of my out-of-state clients to have tried at least twice on their own before finally getting serious about winning and then hiring me.

199791-300x230An administrative review does have a strong appeal in terms of both convenience and cost. You’d have to be crazy to WANT to take the time to come back to Michigan and blow money on a lawyer and travel if you could simply skip all of that and win your license back from the kitchen table, but, as experience (and statistics show,) it doesn’t work like that. That said, it’s not like coming back to Michigan, by itself, is of any kind of magic solution. Instead, it’s the plan you come back to execute that holds the key to winning, and I have a proven and guaranteed plan for Michigan clearance cases. In any given week, it’s not unusual for me to handle 3 out-of-state license appeals. and over the years, I have developed and follow a very clear procedure to handle and win them. And I do win. In fact, if I take your case, I guarantee to win it. I won’t waste your time here with uncommitted language like “trying,” or “improving your chances” of success. With me, it’s about actually getting your clearance now. This means that if I’m your lawyer, you’ll get your clearance, guaranteed. It can’t really get any better or simpler than that.

If I had to boil everything down into one word for why you should come back to Michigan and hire me to win your clearance, it would be “control.” I guarantee to win every case I take because I know what to do, and I exercise control over every step of the process. It is, in the big picture, the my control over process having a client come back to win that differs so substantially from the process of someone merely sending in a “do-it-yourself” appeal by mail. The process, as I do it, requires an initial, 3-hour meeting to prepare you for your substance use evaluation, then sending you a few blocks from my office to have the evaluation completed. At that meeting, we’ll go over how you should do the letters of support (I include a sample letter in the folder of info provided to a new client), and instruct you to forward them all to me, in draft form, for correction and editing. Once I have your completed evaluation and draft letters, I can get to work. Beyond just fixing the letters, I need to CAREFULLY review your evaluation, and then make sure everything is consistent within the evaluation and letters. Only then will the documents be filed, and the case set for a live hearing. My control over the process extends to the hearing, as well. All my cases are set for a hearing in the Livonia Office of Hearings and Appeals. I am very familiar with the 5 hearing officers there, so I’ll know how to prepare you, based upon the facts of your case, for the questions that will be asked. Key here are the questions. There will always be questions, so it’s more about whether you’ll be here to answer them, or not.