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The goal of every Michigan driver’s license restoration or clearance appeal is, of course, to win. Let’s skip over all the fluff and not mince words here, so we can be clear: the bottom line is that when you hire a lawyer, you want to win your case, not just pay some lawyer to keep you company at the hearing. I raise the bar a bit on that score, because I believe that when you hand over your money, you should expect to win, and I actually guarantee to do just that. When I take someone’s money, that’s exactly what’s going yo happen – they’re getting their license back. I can speak about this with such confidence because I concentrate in the license restoration field, and know exactly what to do to win. I handle about 200 license cases per year, more than anyone I know. As a result, when I state something as a matter of fact, it is. That may sound cocky (although it’s not meant to), but if that wasn’t true, then I wouldn’t be where I am, and wouldn’t be providing a guarantee in every case I take. Therefore, when I say you should never call a witness at a license restoration hearing, and that doing so is almost always a mistake, you can take that to the bank.

Court-drawing-of-Mick-Philpott-in-the-witness-box-at-Nottingham-Crown-Court-300x238I was reminded of this the day I started this article, at an early morning license appeal hearing at the Livonia office of the Michigan Secretary of State’s Administrative Hearing Section (AHS). At the conclusion of my client’s testimony, the hearing officer asked, with a smile, if I had any witnesses, because he knows I I NEVER bring in witnesses. Calling witnesses is a first rate amateur mistake, that, if it doesn’t backfire, means you got damn lucky. I’d be less than honest if I didn’t admit I learned this lesson the hard way, many, many years ago. In fact, the thing about doing license appeals is that you just have to learn much of it the hard way. It’s kind of the same thing for riding a bike; you can get some of it right, but the most important part – not falling off – is one of the things you only learn through trial and error. And it doesn’t matter how smart you are, either. Einstein could have probably written out an equation about how the rider stays upright by maintaining a certain minimum speed that involves a particular balancing of his or her weight, but for all of that, he’d still would have landed on his a$$ until he jumped on and tried enough times to just “figure it out.”

Most of the lawyers I see at the Livonia office of hearing and appeals I never see twice. There is a small handful of familiar faces that I see from time to time (this is a very niche field in which to concentrate one’s practice, so in terms of being a real “license restoration lawyer,” you can pretty much count us on one hand, not including your thumb). If I’m in the waiting room with my client and some lawyer comes out to retrieve a witness, you can be sure it’s always someone who won’t do as many license appeals in his or her whole legal career as I will in a single year. In other words, it’s some poor lawyer who just doesn’t know better. By now, I think I’ve made clear that I don’t call witnesses, and that doing so is a mistake, but why? What’s so bad about calling someone in to testify?

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Most of the DUI cases that go through the courthouses all over the country are 1st offense cases. In fact, OWI (Operating While Intoxicated) 1st offense is one of, if not THE most common charge seen just about everywhere, and certainly here, in the Greater-Detroit area, made up of Macomb, Oakland and Wayne Counties. Accordingly, it is the bread and butter of any real DUI lawyer’s practice (including mine) as well as a main contributor to the revenue stream of the local district courts in Metro-Detroit, if not everywhere else. Most people who get a DUI will only get one in their lifetime, and never be back for a 2nd offense. The flip side of that, however, is that every person who does pick up a 2nd or 3rd DUI had previously said something like, “I’ll never do that again” to the prior Judge, thus accounting for the court system’s inherent, but understandable skepticism when it hears that.

1-liter-glass-liquor-bottle-display-179x300My perspective on all this is a result of my rather unique practice. My 1st offense DUI clients are, overall, a bit “above” average. I say this because most (although certainly not all) of my 1st DUI offenders have never been in any kind of trouble before, alcohol-related or otherwise, and I wind up representing a lot of people who are have solid professions, like engineers, nurses and other professional types. My client base is made up of solid, well-mannered people who have good incomes. Almost none of these individuals come to my office with any kind of experience in, or savvy about, the criminal justice system, and that’s a good thing. They’re often nervous (usually more so than necessary, because jail isn’t even on the menu in a 1st offense case) and sometimes just plain “freaking out.” It is not uncommon for my clients to have all kinds of questions about things they hope or think may help get their case dismissed. They often mention various “urban legends” that they picked up somewhere about things like how to beat a DUI, or about the Judge assigned to their case. They have lots of questions, and a lot of these questions begin with either “Don’t the police have to…?” or “Is it true that…?” Almost every last bit of that stuff is wrong, but I understand their perspective, as well. To someone who’s never been down this road before, everything is new.

Back in the real world, where these cases are resolved, when I do get a case knocked out of court, it’s usually because of something I find as part of my customary review of the evidence, and not anything so painfully obvious to the client. In other words, the police don’t generally screw things up, and when there is a basis for a challenge to the evidence, it won’t happen because of something like Officer “Smitty” having spilled his coffee down the breathalyzer machine, so the police had to use a hair dryer to get it running again for your breath test. I can say stuff like this all day long, but human nature being what it is, people will always have their “newbie” questions, and that, too, is a good thing. Who you are as a person matters in a DUI case, and your lack of any prior record is always beneficial. That’s not to say that many people didn’t have something like an MIP in their past, but as prior records go, less is more, and none is always better.

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In my practice as a Michigan driver’s license restoration lawyer, I conduct a lot of appeal hearings, and every last one of them is done live and in-person, in the same room with a Michigan Secretary of State Administrative Hearing Section (AHS) hearing officer. In this short article, I want to address why I never have and never will allow any of my hearings to be done by video. It should note, right out of the gate, that there is a video location less than 5 minutes from my office, while, by contrast, the Detroit-area hearing office, located in Livonia, where all my hearings take place, is about 45 minutes from my office. In terms of convenience to me, there is absolutely no comparison, but all the same, I wouldn’t consider giving up a live hearing for that crappy, boomy-sounding video feed no matter how much time and effort it would save. Above and beyond all of that, I guarantee to win every case I take, so I am completely invested in doing things the right way, not the easy way.

keep-calm-we-re-going-live-thing-191x300The biggest reason I won’t do video hearings is that I truly believe something special gets lost in the transmission that otherwise is obvious when you’re right there, in person. I think some of this has to do with the fact that I only take cases for people who are genuinely sober, and who, oftentimes, are enthusiastic about their sobriety. Some people, of course, are more low key than others, and don’t bubble over with excitement about no longer drinking, but even the shyest person just exudes that “something” that only happens when a person has really gone through the transition from drinker to non-drinker. This “something special” includes everything from a person’s body language to all kinds of small, subtle cues you can only see when you’re sitting across from them. These are precisely the things that aren’t clear or obvious when your image is displayed on a 20-inch screen and that’s being picked up from a camera on the other side the room. Imagine a bad webcam, or bad Skype, with bad sound, to boot; that’s a video hearing.  Who, if they know better, would seriously trust their license appeal to that?

I can’t tell you how many times people will cry, or have tears well up in their eyes, when they are testifying. This happens all the time, and it happens every bit as much to big, strong guys as it does to anyone else. Not everyone bursts out sobbing, but the sound of a voice getting choked up as they’re telling their story, or the moistening of a person’s eyes are the kind of subtle signals that are plainly obvious when you’re right there, but simply don’t broadcast very well, if at all, over video. Of course, lots of people are understandably nervous or shy about testifying, yet even what the most nervous person doesn’t have in “professional witness skills” will be made up for in confirming body language. The hearing officers spend a lot of time being lied to, so they are about as experienced at reading people as anyone you could ever meet. All of that is lost on video – every last bit of it.

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In my role as a Michigan DUI lawyer, I handle a lot of 2nd offense drinking and driving cases. On my website, 1st offenses, 2nd offenses, and 3rd (felony) offenses are examined in a more overview fashion, while on this blog, I have covered each of the OWI charges in rather painstaking detail within the DUI section. In this article, I want to circle back to 2nd offenses and look at how 2 things, in particular – your prior record and the location of the charge – can affect what happens to you. In many of my prior articles, I’ve made clear that in just about every 1st offense DUI case, you’re not going to jail. Things are different, however, in 2nd offense DUI cases, where jail is a very real possibility, although it’s seldom a certainty. In the real world, there are some courts that rarely, if ever send 2nd offenders to jail, a few that usually (or even always) do, and then there are the rest, in the middle, that may or may not play the jail card, depending on the circumstances.

round-two-221x300You don’t have to be a legal scholar to realize that you prior record matters, but it matters more than just because you have a prior DUI. By law, you can only be charged with OWI 2nd offense if, and only if, you have a prior conviction for another alcohol-related traffic offense within 7 years of the date of your arrest for the current case. By definition, then, every 2nd offender has a “prior record.” There is a lot more to this, however, than just that one previous DUI case, although the circumstances of that prior offense can play a greater (or lesser) role in how things turn out now in the new case For example, a person still on probation for a High BAC 1st offense ,who then goes out and picks up another DUI (and whose BAC in the new case is also really high) is going to be in a tough spot. Contrast that situation with one where an older guy who picked up his 1st DUI, with a really low BAC (just over the legal limit) nearly 7 years ago, after he staying late at his daughter’s wedding reception to help clean up. Now, assume the guy’s new case arose from him being arrested (with another really low BAC) on his way home from a surprise retirement party thrown for him after his last day at work. These are very different situations.

Beyond your previous DUI, however, any other prior record you have can matter. It was not any due to grammatical sloppiness that I wrote “can matter,” because not every prior offense really does matter, at least within the context of a 2nd offense DUI. For the most part, prior alcohol or drug-related offenses are considered more significant, as are any offenses that usually involve alcohol or drugs, like domestic violence and disorderly person charges. Thus, if Tipsy Tina, recently arrested for a 2nd offense DUI (with a prior that occurred 5 years ago) was also convicted of retail fraud about 12 years ago, back when she was a teenager, that offense will probably not have any effect on her now. However, if Tina has a marijuana charge, and even if it was 15 years ago, it will matter, if only a little. Of course, if Tina was convicted of having open intoxicants in a motor vehicle just a few years back, you can be sure that offense will have a fairly significant effect on what happens in her new case. When it comes to how much, if at all any prior record matters in a 2nd offense case, the only accurate answer is the dreaded, classic lawyer response – it depends.

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This will be the final installment in our non-consecutive, and what I’ve called “loose series (LS)” about the Michigan driver’s license restoration and clearance process. Up to now, I’ve covered every step in that process, starting with my first, 3-hour meeting (LS1) with a new client, the substance use evaluation(LS2), or SUE (often mistakenly called the “substance abuse evaluation), the letters of support (LS3) that must also be filed with the case, the standard of proof (LS4), meaning how the evidence is evaluated, the hearing officers (LS5) who decide these cases, the live hearing (LS6) and what takes place there, the all-important prep session (LS7) to get ready for it, the kind of license you win (LS8) if you filed for a restoration, rather than a clearance, and the dreaded ignition interlock violation (LS9) for some non-compliance or problem while using the device. Although there are no more steps in the process left to examine, there is one aspect of license appeals that is foundational to every one of them, and really at the core of everything: sobriety.

abc157ad2b7c26d715704dc53f90db3a-182x300Sobriety is so important to a license appeal that you could say it is everything. In fact, it is. On my website, I call it the “meat and potatoes” of winning back your license. To really gain a sense of it’s importance, we need to back up a bit, for perspective, and look at the big picture. When a person loses his or her driver’s license for multiple DUI’s, the state concludes he or she has a drinking problem. Key here is the word “conclude.” There is no debating this, and the Secretary of State won’t even listen to why anyone thinks he or she is an exception to that. As a result, when a person comes back and appeals to the Michigan Secretary of State for a license, no matter how many years later, the threshold inquiry is about what they have done to fix that drinking problem, as is get clean and sober, and not whether there is or was one. In the view of the state, anyone with multiple substance-abuse related driving offenses is seen as too much of a risk to put back on the road unless they have completely quit drinking and/or using drugs. This means that the ONLY people who will ever get their licenses back are those who no longer drink, and have been and plan to continue living an alcohol (and drug) free lifestyle. The indisputable, simple fact is that people who do not drink anymore are ZERO risk to ever drink and drive again.

This is it, folks – the keys to the kingdom, so to speak. Absolutely nothing else matters in a license reinstatement case if you’re not sober. It couldn’t matter less if you haven’t been in trouble for over 20 years and have a very sick child who needs to be driven to medical treatment to survive – unless you can first prove your sobriety, your case is not even legally qualified for consideration. Needing a license, not having had one for a long time, or having stayed out of trouble, even for decades, is completely and utterly meaningless in the context of winning a Michigan driver’s license restoration or clearance appeal without also being able to demonstrate that you’ve quit drinking for good.

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This short article, like many others on this blog, was inspired by a conversation I had with Ann, my senior assistant. She was giving me the details of a conversation she had with someone regarding his DUI and suspended license charges, and noted that the caller had pointed out how he watched in court as one woman went before the Judge for a drinking and driving offense and didn’t get any jail time, and then tried to use that as a basis to predict what would happen in his case. Ann asked, of course, it he knew anything about her charge, prior record, or case history, and he responded that he didn’t. Ann then explained to the caller that no two cases are alike, and that you can’t ever compare your situation to anyone else’s, especially if you don’t know all of the details. That’s when the idea hit me, because I realized that just about everyone one of us looks around for comparisons in just about every situation we find ourselves. That may work, or at least work better, when it comes to fixing a jammed garbage disposal or something like that, but not within the context of a criminal or DUI charge, where there are just way too many variables.

compare-apples-and-oranges-IDIOM-300x253You most likely know this already, but that doesn’t stop you, or me, or really all of us from doing it anyway. That’s human nature. My hope is that this short article will help make clear how this not only doesn’t work in criminal and DUI cases, but can also be misleading. Let’s use an example: Imagine Drinking Dave picks up his 1st DUI in city “A.” On that same night, Tipsy Tina is also arrested for her 1st DUI in city “A,”, as well. Sounds kind of like they’re in the same boat, right? Well, there are about a million things (maybe even more) that could make their cases very different, and that, in turn, could make what happens to each of them very different, as well.

If Tina has had 2 prior MIP’s, even if they were quite a few years ago, her relationship to alcohol is going to be perceived by the court as risky, if not outright troublesome. This would be even more so if her BAC at the time of her arrest was high, like a .21. If Dave, by contrast, has never been in any kind of trouble before and his BAC was .12, he’s just automatically going to be seen as less risky than Tina. Generally speaking he’s likely to wind up with a less demanding term of probation, meaning he’s likely to have to test less frequently, and will probably not be found to need the level of rehabilitative or treatment services that seem almost certain for Tina.

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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 true 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.

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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.

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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.”

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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.

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