DRIVER'S LICENSE RESTORATION

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MICHIGAN DUI

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In this article, I want to zero in on that feeling – that special moment – when a person caught up in a DUI (or really any other legal mess) just “knows” his or her relationship to alcohol has become troubled, or at least is no longer able to deny to themselves that their drinking is causing problems. In that context, one of the best observations I’ve ever heard is that “anything that causes a problem IS a problem.” This kind of dovetails with a well-known AA slogan: “I didn’t get in trouble every time I drank, but every time I got in trouble, I had been drinking.” If you’re facing an OWI, or some other kind of criminal charge or problem (like a probation violation for alcohol), and you’re wondering if your drinking might be part of the reason, the answer is almost certainly “yes.”

Alcoholism-Who-Does-It-Hurt-How-Does-It-Affect-Loved-Ones-300x272You haven’t spent much time wondering if something else is the problem, have you? Did it ever cross your mind that you’re sitting in the back of a cop car because you eat too much pizza, or work out too often, or watch more TV than you should? The point I’m driving at is that once you get any kind of nagging feeling that something’s up with your drinking, it almost always is. The simple truth is that alcohol screws more lives up than you could ever imagine. I see it every single day. If you could do my job for any length of time, you would have a front row seat to watch people going out and getting in trouble again and again, all because of drinking.

It’s often said that “the definition of insanity is doing the same thing over and over again, and expecting a different result.” When it comes to racking up DUI’s or other criminal charges after drinking, people frequently live in a state of denial, while everyone around them sees their use of alcohol as the real problem. Whatever else, there has probably NEVER been an occasion, in the history of the world, where someone has had that sinking feeling that their drinking has become a problem and been wrong about it. So how do we deal with this?

The idea for this article came from my associates after a week where we saw how things go bad the minute someone starts talking to the police without a lawyer. What I want to make clear in this article is the one universal piece of legal advice that holds true in every situation: shut up. If you are being questioned by the police, always exercise your right to remain silent. In fact, of all the rights we have as Americans, none is waived so freely, so frequently, and so much to a person’s detriment, as the right to remain silent. In the real world nobody ever talks themselves out of trouble – it’s just the opposite. If you haven’t talked to the police yet, then don’t. If you already have, then we are simply left with the reality of that.

smiley-zipping-mouth-300x210We’ll begin by restating what is far more overlooked than obvious: you have an absolute right to remain silent. We’ll get into this more later, but the day before this article was written, I met with a client who hired me after he spoke to a police detective and was subsequently arrested and charged with a crime. Because he is a nice guy who has never been in trouble before, my client naively asked the detective if it was a good idea to be talking to him, and if he should get a lawyer first.  The detective, for his part, answered the question rather diplomatically, and replied, “I can’t tell you what to do.”  Of course, my client now understands that he should not have said a word.

People often feel obligated, or in some way “pressured” to answer questions when asked by the police. Most people are good by nature, and even though they may have broken a law, they don’t want to appear uncooperative, and because of that, they “cooperate” themselves straight into more trouble, only to later realize they should have just kept quiet.

In my role as a Michigan driver’s license restoration lawyer, I have tried very hard to explain the legal process within the hundreds of articles on this blog. I think I’ve done that rather thoroughly within the 430-plus license restoration pieces I’ve written and published. In this article, I want to try to do a very brief summary of how things are done in my office. My previous attempts to outline the driver’s license restoration or clearance process have always traded brevity for completeness, and have almost always wound up being published as multi-part installments. Here, we’re going to exchange details for economy of words and get through everything in one reasonably short write-up.

Lesson-Summary-300x300First things first: the ENTIRE driver’s license restoration and clearance process is based upon the idea that you are sober, meaning you have quit drinking, and also have the ability and commitment to remain alcohol-free for life. Getting your license back is intended to be difficult as the rules governing Michigan Secretary of State (SOS) license appeals are written in order to deny a license to anyone who cannot prove they are a low to minimal risk to ever drink again. Practically speaking, you must have been alcohol-free for the better part of 18 months before filing, and need to make clear that you harbor no idea that you can ever take another sip of alcohol, for any reason, at any time for the rest of your life.

Beyond being sober, you must be legally eligible to file a license restoration or clearance appeal, and that time frame is set by law. It does not matter how much you need a license; you must wait until your minimum period of revocation is over, including any additional time that has been added-on because you got caught driving. And no matter what your circumstances, there is no legal way to shorten your period of revocation by going to court.

You already know that a 3rd offense DUI is serious, so there’s little point in going on and on about that. Chances are, however, that if you’re facing a 3rd offense OWI, even though it is a felony, it isn’t nearly as bad as you may fear, especially here, in the Tri-County area. If there’s one thing I hate, both as a lawyer and as a consumer myself, it’s fear-based marketing tactics, and I want this article to stand in contrast to the general practice of trying to scare the hell out of you. Instead, I want to look at 2 important factors that, more than just about anything else, will influence what happens: location, and BAC results.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/08/General-Tri-County-1-inch-1.2.pngLet’s begin with the obvious: a lawyer should carefully examine everything to see if there is some way to beat the case; my team and I certainly will. In my office, for example, it’s standard practice to obtain the police car dash-cam video in every DUI case that comes in. While you certainly won’t find anything wrong with the evidence unless you look for it, the simple truth is that the police usually don’t screw things up catastrophically, anyway. Thus, when the evidence is strong enough to withstand a legal challenge, we negotiate a plea bargain that reduces a 3rd offense felony down to a 2nd offense misdemeanor, or at least work out a more lenient sentence agreement that shines like a bright light at the end of a dark tunnel.

I want to be clear that while there are geographical and practical considerations to what and how things get done, even in what might seem the most clear-cut, true 3rd offense drunk driving cases, typical sentences in Oakland, Macomb or Wayne County are measured in days, not months, and certainly not in years. To clarify, a “true” 3rd offense means a person only has 2 prior DUI convictions in his or her lifetime. Since there is no higher OWI charge than “3rd offense” in Michigan, even a person with 12 prior drunk driving convictions can only be charged as a 3rd offender if he or she is arrested for number 13.

As the number of sobriety court programs has grown in Michigan, and as more people graduate from them, I am seeing a proportional increase in the number of sobriety court graduates appealing for a full license from the Michigan Secretary of State (SOS). Sobriety court Judges are legally authorized to override the SOS revocation that comes from either a 2nd or 3rd offense DUI and issue a restricted license. In this article, we’ll examine how the only way to go from a restricted license (with an interlock) issued by sobriety court to full driving privileges (without the interlock) is to file a formal driver’s license restoration appeal, and what’s involved in that.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/09/full-2.thin_-300x206.jpgThe lifting of restrictions and the interlock requirement by the SOS is technically called a “change and removal of restrictions.” The “step up“ from a restricted to a full license is NOT automatic. In the real world, a license appeal for someone with a sobriety court issued restricted license is kind of like a hybrid combination of a first time license appeal for someone who didn’t do sobriety court and who had to get his or her restricted license through the regular restoration process, and a “full” license appeal for those people when they later become eligible.

Every person who wins a restricted license through the SOS does so by documenting and explaining both their addiction and their recovery. This requires showing 2 things within those documents and then later, through testimony at a hearing: first, that their alcohol and/or substance abuse problems are under control (meaning that they have remained abstinent for at least the last 12 months, and really more like 18 months, minimum, in practice) and second, that their alcohol and/or substance abuse problems are likely to remain under control (meaning that the person is a safe bet to never drink or use drugs again).

One of the most important things I do in every driver’s license restoration and clearance case is to thoroughly “prep” my clients for their hearings. The whole preparation process is really a 2-way street, because prior to speaking with my client, I have to carefully read and review the entire file myself, to the point of actually memorizing it. For the client, this is about a lot more than just going over the questions likely to be asked of the client at the live hearing. And to be clear, I NEVER settle for a video hearing, and always schedule my cases to be heard live, even though there is video location less than 5 minutes from my office, while the drive to the actual office of hearings and appeals takes about an hour (much longer than that now, with I-696 partially closed). We’ll examine the shortcomings of video hearings in an upcoming article; in this piece, I want to concentrate on the importance of getting ready for a live hearing.

maxresdefault-300x288As I sit here writing this, I have 2 hearings the next day, and I’ve already prepped 1 of the clients, who is coming from Pennsylvania. Getting ready for a hearing really does require that I memorize the file, and not just do some quickie “review” of it. Before I ever read anything, however, I confirm which hearing officer will be deciding the case. Every hearing officer is unique, and they each have their own areas of particular interest, and that not only directs my focus, but what I emphasize to my client. To be sure, all the hearing officers share the same core group of concerns and ask some of the same questions, but there are also areas that, while important to some, are of little or no interest to others, and vice-versa. Knowing this is key to making sure I concentrate on the more important aspects of any particular file, and, in turn, preparing the client for the questions that will be asked regarding that. For example, if someone attends AA (although most of my clients do NOT), one hearing officer may want him or her to repeat a few steps of the program, while another will skip any specific questions like that and ask, instead, how often the person goes, and if he or she intends to keep going.

This isn’t nearly as complicated as it sounds, and the hearing itself should not be feared. If there’s one misconception I’d like to clear up in this piece, it’s the idea that the hearing is some dramatic, “it all comes down to this!” moment. It’s not. In fact, license appeal cases are mostly won or lost through the documents we file, and that takes place long before you ever walk through the door for your hearing. If the substance use evaluation isn’t legally adequate and appropriately favorable, there’s nothing you can say or do at a hearing to fix that, and your appeal will be denied. Ditto if the letters of support aren’t good enough. The hearing is really nothing more than an opportunity to go in and confirm that the person described in those letters and depicted in that evaluation is, in fact, the person sitting in the hearing room. Doing everything right is the recipe for winning, and that’s exactly what will happen when I take a case, guaranteed.

When you’re facing a criminal or DUI charge, it’s best to have a lawyer who is familiar with the court where your case is pending and the Judge presiding over it. Because the concept of “local” can differ by location, I want to clarify the idea of hiring a “local” lawyer. In the Metro-Detroit region, “local” has a very different meaning than in less populated parts of Michigan, and generally includes lawyers from anywhere within the Tri-County area. In other parts of the state, “local” can mean just the county where the case is pending, or even a specific part of it. In this short article, I want to examine what “local” means when it comes to hiring a lawyer for something like a DUI, suspended or revoked license case, or a criminal charge here, in the Greater-Detroit area.

LocalInsider-hero-300x256For anyone with a case in Oakland, Macomb or Wayne County, a “local” lawyer is not limited merely to one whose office is in the same city or county where the charge has been brought. Although that definition is overly narrow, it’s worse to have no concept of “local” when it comes to hiring a lawyer. I am, often enough, contacted by people from distant counties who want to hire me, and while that’s flattering, I have to explain that I keep it “local” by limiting my criminal and DUI practice to the various district and circuit courts of Oakland, Macomb and Wayne Counties (this is in stark contrast to my driver’s license restoration practice, which is statewide). Because of the geographic limitations on where I travel for court, I have no experience with how things are done elsewhere. As good as some attorney may be, one of the worst thing a person can do is to pay for him or her to make a “special trip” to some court where he or she does not practice regularly.

This isn’t complicated. To be perfectly blunt about it, like most things, it all comes back to money. As the old saying goes, if you want to know why something is the way it is, “follow the money.” In my case, I’m fortunate to be busy enough to not have to travel to courthouses all around the state. Some lawyers don’t have that option, and have to take cases wherever they can. As a client, you’re far better served by a lawyer who knows how the Judge assigned to your case does things. Every Judge is different, and what works with one may not fly at all with another. You should hire a lawyer who already knows all this stuff, and who uses his or her experience for your advantage.

In the real world of criminal and DUI cases in the district and circuit courts of Oakland, Macomb and Wayne Counties, a certain, consistent percentage of people put on probation will be brought back for violating it. This often includes people who you would have never expected to get in any kind of trouble in the first place. I’ve had plenty of very unlikely, well-heeled DUI defendants who you’d bet would never mess up again come back to face the Judge yet another time for something like testing positive for alcohol while on probation. There are actually 2 realities at work here: first, that a pretty regular (albeit small) segment of people will be charged with violating probation somewhere along the way, and second, that vast majority of probation violations arise because the person has, in fact, screwed up.

T297059-wile-e-coyote-218x300his is important, because too many lawyers are hesitant to address this head on, and instead talk like probation violations are almost always based on false accusations. Sure, there are times when a person is wrongly accused of violating (for things like a “dilute” urine screen that wasn’t intentional, but the result is treated as if it’s positive), but most of the time, the reason for a probation violation isn’t in dispute, like when a person misses a test, or gets caught drinking or smoking weed. In these situations, the thing you need most is a lawyer who can save your a$$ and talk the Judge out of locking you up. It’s exactly right here that, for a lawyer, being charismatic and persuasive beats the hell out of all the legal knowledge in the world. While only a small number of probation violations are factually unfounded, even fewer (as in almost none) will be won because of some scholarly, technical legal argument.

This has everything to do with how you find a lawyer. And while I admit to some self-interest here, the fact is that, since I only handle probation violation (PV) cases in the Tri-County, Metro-Detroit area, I have no financial motives other than to genuinely help those readers whose cases fall outside of my geographic coverage area. There are 3 key considerations to finding the right lawyer for a probation violation, and we’ll briefly examine each. We’ve already covered the fact that most PV cases arise because a person did, in fact, do something he or she was not supposed to do (like drink or use drugs). Similarly, a person can be violated because he or she failed to do something that was required, like complete classes, community service or pay money.

In part 3 of this 4-part article, we focused in on the PSI (pre-sentence investigation) phase of a Michigan OWI case and the legally required alcohol assessment test that’s a part of that. The whole reason for the PSI is for the probation department to generate a written report and sentencing recommendation that is sent to the Judge to be used in deciding what to do to you. Here, in part 4 we’ll see how this all comes together at the last stage of the court process – the sentencing. This is when you finally stand in front of the Judge to find out what’s going to happen to you. As I noted before, most of what will be handed down by the Judge comes directly from the probation department’s recommendation. By law, when you show up for sentencing, you and your lawyer are required to read the probation department’s report and recommendation. Later, when the Judge calls your case, he or she will ask if you and your lawyer have read it over, if you have any corrections to make to it (this applies only to the facts stated in the report, like your name, date of birth, prior record and such, and NOT to the recommendation itself) and then, what your lawyer and you have to say regarding the recommendation part of it.

privacy-is-an-illusion-and-youre-all-losers-cryptocow-infosecurity-2013-24-638-300x273Judges are all people, and just like everyone else, every Judge in every court is different. No matter how well-spoken a lawyer may be, knowing the idiosyncrasies and inclinations of your particular Judge is a starting point to knowing what to say, and, equally important, what not to say, at sentencing. Every professional athlete, for example, studies his or her opposition. In football, each team watches film of the other team; same with any fighting sport, like boxing or MMA. If I’m representing a 2nd time DUI offender in a jurisdiction without a sobriety court and who I’d like to transfer into a different jurisdiction’s sobriety court program, I had better know if his or her Judge will allow that. There are some Judges who will not transfer a case, no matter what, so not only is asking for that a total waste of time as a sentencing strategy, but then you have to ask, what has a lawyer done to help the client in a case that’s not going anywhere? That’s like bringing chopsticks to a soup dinner.

This may sound harsh, but it’s true: sentencing is where your lawyer either shines, or not. When you’re standing in front of the Judge who is going to decide what punishment and consequences you receive, you had better have spent your money on a lawyer who is exceptionally persuasive. The very LAST thing you need is some attorney who is indistinguishable from the larger herd of lawyers that just drones on about the same old stuff, like your age, job, and other generic blabber about how you regret this incident, want to move past it, and get on with your life. Instead, you need a lawyer who engages the Judge, captures his or her attention, and who can explain, in short order, things like who you are as a person and how that figures into something like this never happening again. In short, you need a lawyer with charisma to spare.

In part 2 of this article, we began our examination of the court process in DUI cases, beginning with the arraignment and pre-trial.  Here, in part 3 of this article, we’ll continue our examination of the court process, starting with the legally required alcohol assessment test.  By law, any person who pleads guilty to or is convicted of an alcohol-related traffic offense (OWI) cannot be sentenced by the Judge until he or she undergoes a legally required alcohol assessment, sometimes called a “screening.”  The actual assessment is a written set of questions about your alcohol and substance use history.  Your answers to them are “scored” using a scoring key, and then compared to a scoring chart to determine whether you have, or are considered at risk to develop a drinking problem.

Nexter-300x150After completing the alcohol assessment, you will then go through an interview with a probation officer (PO).  The end result of all this is a written sentencing recommendation drafted by the probation officer that must be sent to the Judge to be used when you stand before him or her for sentencing.  This recommendation lists specific things that the probation department believes you should be ordered to do (and not be permitted to do) as a result of your charge, including counseling and/or treatment.

Whatever else you read here, or anywhere else, you can take this to the bank: every Judge, in every Michigan court, follows this recommendation very closely.  There is NEVER a case where a Judge makes any big, wholesale deviations from his or her probation department’s recommendation.  In fact, it’s far more accurate to consider the sentencing recommendation a “blueprint” for what’s going to happen to you than anything else.  In other words, a good recommendation equals a good sentence, and a better recommendation will result in a better sentence.

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