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In a recent article, I reiterated the best legal advice you can ever get: shut up and always exercise your right to remain silent. As a Michigan criminal attorney, my office gets plenty of calls from people who have been contacted by the police (often a police detective) and who have been asked to answer some questions. While I hope this article will be of use to those who have not yet talked to the police about their “situation,” the reality is that many of those who read it will have already done so.

Qs-300x201Unfortunately, we are frequently called after the person has already spoken to the police and answered questions. Without fail, every single person who calls after speaking with the police says something like “I think I might have made things worse,” because they realize, although only after the fact, that they should have kept quiet. If you’re reading this after you’ve talked, don’t freak out. Most people do. Then my job becomes making the best of what we have to work with.

The problem isn’t that people don’t know that about their right to remain silent, it’s that they don’t know how to exercise it and keep quiet when they’re being questioned by the police. Somewhat ironically, if a person feels uncomfortable refusing to speak to the police, it’s kind of a reflection of having been raised “right.” I was taught to respect the police. It’s really easy for me to sit here and tell the reader to refuse to answer questions, but I know it would be a much different situation if I had law enforcement bearing down on me with pointed questions about some situation.

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A regular and frustrating part of my experience as a Michigan driver’s license restoration attorney is when a client who is on a restricted license gets an ignition interlock violation after either having started the process of getting a full license, or who would otherwise be eligible to do so. In other words, it’s enough of a pain in the a$$ if someone is 4, 6 or 8 months into his or her restricted license and then gets violated. It’s worse, though, when the person has been on a restricted for over a year already and could have, but has not yet, restored his or her full privileges, and then gets a violation.

don-t-wait-message-hand-drawn-text-white-red-black-wall-poster-words-clock-face-arrow-elements-to-62745206Remember, after a successful driver’s license restoration appeal, a person has to drive for at least 1 year on a restricted license with an ignition interlock unit. Once he or she has accumulated 12 months, however, they can move forward for “full” restoration. One frequent misconception is the idea that it “looks better” if the person spends a little more time on the restricted license. That’s dead wrong.

The very day your year is up, you should move forward to restore full driving privileges. The only thing that happens if you wait is that you invite trouble. I know this, because I get called in to fix these situations all the time.

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As Michigan DUI lawyers, one of the most common questions we are asked is “what’s going to happen to my license?” We’re going to keep this article simple and confine our examination only to 1st offense cases. The whole subject of OWI license sanctions for the various offenses can get rather deep. Since the majority of drunk driving charges are for 1st offenses, anyway, this overview will apply to the largest potential audience.

LCD-3-300x171We’ll start by clarifying one important point – “1st offense” means that a person has not been convicted of any other prior alcohol-related traffic offense within 7 years. DUI driver’s license penalties are imposed by the Michigan Secretary of State (SOS), and under its rules, a conviction can ONLY count as a 1st offense if a person has not had any other alcohol-related driving convictions within 7 years from the date of arrest for the current charge.

In the real world, almost every first offender arrested for drinking and driving will be charged with one of two DUI offenses: Operating While Intoxicated (OWI), or OWI with a BAC of .17 or more (often called “High BAC”). Most of the time, a 1st offense DUI is simply charged as “OWI.” Nowadays, the more serious “High BAC” offense is charged about 1/3 of the time. It’s critical to understand that what happens to your license is a result of the charge to which you wind up pleading guilty, meaning your conviction charge, and NOT the charge that’s first made against you. In fact, most of the time, we can negotiate the original charge down to something less serious.

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As a male Michigan DUI attorney, I am under no illusion that I have any kind of expertise in women’s issues, or that I’m in any way specially qualified in this area. However, I also know that some aspects of DUI cases are just “different” for women versus men, and that it is just plain wrong to not at least acknowledge that. Much of what makes up a DUI case is the same for both men and women. However, those things that are different, few as they may be, do matter a lot, especially to the person going through it. In this piece, I want to take a glance at some of them.

woman-thoughtful-sad-e1512232913690-300x199A DUI case is, at least in theory, gender-neutral. Most cases begin with a traffic stop, and usually, the reason for the stop has to do with how the person was driving. It’s not like the police usually know (or care) if the driver is male or female; that’s discovered later. Another thing that’s almost always a non-factor is how the different sexes metabolize alcohol. Sure, men tend to have more bodyweight than women and therefore will be able to drink “more,” but the law in Michigan clearly provides that a person shall not drive with a bodily alcohol content (BAC) over .08. It doesn’t matter how many more or less drinks it takes someone to get beyond that level, only that he or she is, in fact, above it.

Once a person has been pulled over, he or she will usually be asked to perform a series of field sobriety tests. Here’s where things can start to diverge. Over the course of my 28-plus years as a DUI attorney, I cannot count how many times a woman has told me that she was wearing heels when the officer asked her to do either the heel-to-toe walk or the standing leg raise. The most common response by an officer when that’s mentioned, or noticed, is to tell the woman she can remove them. I may not know what it’s like to wear high heels, but I know I would never want to try a field sobriety test in bare or stockinged feet at the side of the road on a nice day, much less if it’s cold, and/or raining, or snowing. Will this alone invalidate the test results? Usually not, but it’s something to examine as part of the evidence, and it’s one thing a man will never experience as part of his DUI arrest.

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In my role as a Michigan driver’s license restoration lawyer, I encounter a lot of misunderstandings about the license appeal process. Ann, my senior assistant, suggested this article after speaking with a caller, who, like many, had incorrectly heard that you have to lose your first appeal before you can win your license back. Many people will then wonder, “why bother?” Not only is this notion TOTALLY WRONG, but it also flies in the face of the reality that the law itself provides for a second chance. I know what I’m talking about, because I guarantee to win every license case I take. I earn my income by succeeding the first time around, not having to do everything all over again, for free.

secondchancesquotesLicense appeals are hard, and they’re designed to be that way, but not just for punishment’s sake; the Michigan Secretary of State (SOS) wants to make sure that nobody can get back behind the wheel (at least legally) as long as he or she presents any risk to the public. The SOS has drawn the line in the sand, and will only reinstate a license for someone who can prove he or she has quit drinking for good and is a safe bet to never drink again. To the state, the very idea that someone might ever drink again makes him or her too much of a risk to drink and drive again, and therefore NOT a candidate for a license reinstatement. Of course, the people who have the lowest risk to drink and drive again are those who don’t drink at all, and they’re the ones who will get a second chance.

The idea of a second chance goes back to ancient and biblical times, and is wrapped up in larger, western idea of fairness. It has always been a part of American law. Sure, there are some people, like serial killers and such, who are so dangerous that we make no provision for them to walk amongst the rest of us. For everyone else, the legal system is set up so that a person receives his or her punishment and is then given another chance. This is equally true in the world of driver’s license restoration and clearance cases for people who’ve had their license revoked for multiple DUI’s, as long as they can prove themselves a safe bet to never drink again.

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As Michigan driver’s license restoration lawyers we handle over 200 license appeal cases per year, my office has pretty much heard and seen it all. My office is regularly contacted by people who want their license back, but who don’t have a clue about sobriety or quitting drinking. This is a real obstacle, because the main focus of a license restoration case is proving that you have stopped drinking for a sufficient period of time, and have the commitment and tools to remain alcohol-free for good.

0a558a8c8a64ebdcf3bffb146be85fea-300x195Let me be blunt and honest here: the license restoration process is tough, by design, to the point of actually being a real pain in the a$$. The state makes it hard. That’s just the way it is, like having to fork over a chunk of the money you earn to pay income tax. Even though the process could always be made “better,” most people who are genuinely sober realize that no matter what, the reason they’re in this boat is because of their own behavior. They understand that, as much as this whole thing sucks, they can’t blame anyone else for their situation. You don’t have to like any of this, but a mindset of acceptance is one of the markers that shows a person has turned the corner in his or her life, quit drinking, and has what it take to get through the process in order to win his or her license back.

By contrast, I can usually tell, right off the bat, just by someone’s attitude, that he or she probably isn’t anywhere near sober or ready to quit drinking, much less undertake a license appeal. The day I began this article, I received an email contact that was a perfect example of this, and inspired me to write this piece. This is it, reprinted exactly as it arrived in my inbox: “I have two dui with in 7. the state held my lic, due to Drs, bill $2500. Now the wan me to jump through hoops, to get it back..” What caught my eye immediately was that the writer essentially complained that they want him to “jump through hoops” to get his license back. When a person has the right disposition to win a license restoration or clearance case, their inquiries tend be more like questions how do we do this, rather than complaints about having to do it at all.

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As a Michigan DUI and driver’s license restoration lawyer, I deal with the whole gamut of alcohol issues every single workday. On one side of the spectrum, I see plenty of DUI clients who don’t have any kind of drinking problem. On the opposite side, I have license restoration clients whose relationship to alcohol nearly ruined their lives and are lucky enough to have hit bottom, quit drinking, and are now enjoying a sober life. In-between those two ends lay all the struggles. One group that we encounter in my office rather consistently are people who had previously quit drinking, suffered a relapse, and then get popped for a DUI. I see this happen both within the context of my DUI and driver’s license restoration practice. In this article, we’ll restrict our focus to the DUI part of things.

10-best-ways-to-stop-drinking-alcohol-300x188Not surprisingly, the idea of a relapse leading to a DUI can come as a kind of mixed blessing: on the one hand, it can turn out to be the real “lightbulb moment” for some people, and mark the point where his or her life changes for the better. This is usually because the person accepts, with the force of a hammer, the reality that he or she simply cannot drink anymore. On the other hand, being too open about having issues with drinking then having had a relapse can really complicate a DUI case. Although a drunk driving arrest may really be a pivotal moment in a person’s life, the extent to which we should reveal that it was part of a relapse depends on a lot of factors.

In the real world, most of those factors are NOT usually present in something like a 1st offense DUI. Things are often different, however, when a person has any prior drinking and driving convictions. In many (but not all) circumstances, admitting a relapse can positively affect how things turn out in a 2nd or 3rd offense DUI case. It’s always better to be safe than sorry, because you don’t want to be the person who should have kept quiet about having had a relapse. Conversely, though, it’s foolish to not bring it up when doing so can be helpful. Exactly how to advantageously use the existence of a relapse (or not) in the context of a DUI charge must be carefully evaluated on a case-by-case basis.

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Perhaps one of the most important consequences of my guarantee to win every driver’s license restoration and clearance case is that it ensures we carefully screen every potential client to make sure he or she has what it takes for a successful appeal. For all the niceties I could mention about how you’ll only pay me once to get back on the road and such, the flip side is that I earn my living winning these cases the first time around, and that gives me a very strong incentive to screen out anyone who is not yet ready to move forward, or else I essentially double my workload while slicing my income in half. In that way, my own self-interest really stands as a huge benefit for the client, as well.

maxresdefault-300x169If that was all there is to this, then we could have stopped at that first paragraph, but, like everything else in life, it gets a bit more complicated. For every caller whose case is a clear “yes” or “no” in terms of being able to move forward right away, there are also plenty of “maybes.” It’s knowing what to do, and when to do it in those cases, that really calls upon our experience and knowledge. Nobody wants to wait longer than they should to get their license back, yet the cost of moving forward too soon is that you’re case will be denied and you’ll be stuck without a license for a whole additional year.

This is easy to understand in terms of a person being legally eligible or not to file, but it gets bogged down in the details when we throw in things like additional revocations because a person got caught driving on a suspended/revoked license, or having a medical marijuana card, being on a certain medication, or any of about a million other things that we evaluate as part of our screening process. And for all the legal situations that can exist, sometimes a person needs some help to understand how to explain his or her recovery process in a way that will be successful.

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This will be a short article to clarify one simple point: that you need to be done with probation (or parole) before you can win back your driver’s license (or, if you now live out of state, win a clearance) from the Michigan Secretary of State. This is an issue that comes up multiple times every week among those who call my office looking to restore their driver’s license. There are of course, some exceptions to this. We’ll get to them shortly, because if there weren’t any, then we’d have no need to go much beyond the first sentence of this paragraph.

ball_and_chain_3322854b-300x188First, it helps to understand why the Secretary of State requires a person to be off probation or parole. Being under legal supervision is perceived as “living in a controlled environment,” meaning that the person is NOT free to have a drink if he or she wants, simply because he or she has been ordered to abstain, with the threat of some kind of punishment hangin over his or her head for violating that order. This is more obvious when a person is still on probation for his or her last DUI and is either being tested, or at is least subject to testing, for alcohol and/or drugs. However, even if a person is not tested regularly, or at all, he or she is still under a court or parole board order to not consume any alcohol.

If a person gets caught drinking in violation of a probation order, he or she can be sent to jail. To the Secretary of State, this means that for as much as the person can prove they haven’t had a drink for X amount of time, he or she cannot also prove that his or her abstinence while on probation (or parole) was completely voluntary. In order to win a license appeal, the state wants to see time where a person chose to not drink without any threat of legal sanction, even though he or she easily could have.

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In part 1 of this article, we began our examination of what makes a felony different than a misdemeanor in Michigan. We saw that one key distinction is the maximum possible penalty that can be imposed, and that a misdemeanor can never be punishable by more than 1 year in jail, whereas a felony carries a potential prison sentence of any number of years. We then distinguished jail, where a person can be housed for no more than 1 year, from prison, where a person will usually remain for at least a year and a day. We then began to explore the differences between how a felony and misdemeanor charges are handled, at least at the early stages, in court. We saw how a felony charge is “tested” in the district court at the preliminary examination stage. We’ll pick up there:

preview-full-blog-post-8-16ac-01-2-300x166At a preliminary exam, the prosecutor will call some witnesses. This usually includes the arresting and/or investigating police officer, a victim, if there was one, and maybe a key eyewitness. Not everyone needs to testify at this phase of the case. Remember, this isn’t a trial, and the prosecutor doesn’t have to prove anything like guilt beyond a reasonable doubt, but merely that there is a debatable question of fact that the defendant committed the charged crime. In that sense, “he-said, she-said” is more than good enough for a case to survive the probable cause test at this stage.

Another way to think about this is that all the prosecutor has to do, really, is show the Judge that the case against someone is not BS. In other words, unless the district Judge would feel comfortable saying something like, “this charge is baloney,” then the case will be allowed to continue to the circuit court. On the other hand, if the Judge can say something like he or she finds no evidence that a crime was committed or a law was broken (this rarely happens), or, that he or she cannot find that there is at least an open question that the person charged with the crime did, in fact do it, then the matter will be dismissed.

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