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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.”

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 pretty 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.

It is an established fact that DUI drivers, as a group, have a statistically higher incidence of drinking problems than the population at large. In this article, I want to take a kind of private look at how this may apply to you, the reader. I want to concentrate on how and why a person facing an OWI (Operating While Intoxicated) charge may look inward and question whether his or her relationship to alcohol has become risky or troublesome. In my role as Detroit-area (Wayne, Oakland and Macomb County) DUI lawyer, I have written a lot about how an important part of my job is to protect my clients from being perceived as having a drinking problem they don’t, or having one more serious than is actually the case. These are valid concerns because there is a very real built-in “alcohol bias” in the court system. None of this, however, is the least bit helpful to anyone who knows, suspects, or even just wonders if his or her drinking has become problematic. Because of my clinical background and training, I can help explore this subject far more thoroughly than if I was just another lawyer.

drinking-problem-orange-county-alcohol-treatment-center-a-mission-for-michael-300x247At its simplest, there are 3 kinds of drinkers in the world: 1.), those that don’t think they have a problem, 2.), those who wonder if they do, and, 3.), those who know they do. It goes without saying that most people who drink do NOT have a problem with it, so the vast majority of those who don’t think they have any kind of problem are correct. Denial, however, is an early marker in every case of troublesome drinking, so this means that some of the people who don’t think they have a problem actually do. How to unravel that denial can become the work of a lifetime, and to date, no one has found a way to help someone with their drinking who isn’t otherwise “ready,” so we’ll leave that topic behind and focus, instead, on those who wonder if, or already know, that their drinking has become a problem.

Because of my specific educational background (beyond law school, I completed a post-graduate program of addiction studies) and the DUI focus of my practice (I handle a ton of drunk driving cases), I work with plenty of clients who either know that they need help or are otherwise at least open to talking to someone about their drinking. You might think that would make my job easier, because it would seem like I could just skip the work involved in protecting them from being treated by the court as if they do have a problem, but that’s not the case. In fact, over-diagnosis, both in terms of finding problems that aren’t there, and assessing alcohol problems as having problems more serious than they really are, is widespread both within the clinical world, and even more a problem in the court system. Part of the problem within the court system is that the assessment of a person’s drinking (i.e., the diagnosing) is done by a probation officer, and not an actual clinician. Although it is more convenient for the courts to do it this way, having a probation officer (PO) screen a DUI driver for an alcohol problem is decidedly non-clinical. As crazy as it sounds, this isn’t much different than if the PO was expected to screen someone for depression or some other mental health disorder. In the context of any DUI case of mine, I am thankful that I have the clinical knowledge to make sure my client doesn’t get ordered into any unnecessary treatment, or otherwise forced into some kind of “help” that isn’t a good fit for him or her. That said, let’s circle back to looking at your relationship to alcohol.

There is a certain amount of embarrassment that just automatically goes along with facing an Indecent Exposure or Aggravated Indecent Exposure charge. Because I handle more Indecent Exposure (IE) cases than just about anyone, at least in the Detroit area (Wayne, Oakland and Macomb County), where I practice, I know this well, having sat across the table from clients facing these charges more times than I can count. Beyond having developed an expertise in handling these cases, I have also honed a special skill in handling the clients who have to deal with these charges through the criminal court system. Some of this is attributable to my background: after earning my undergraduate degree in psychology and then going through law school, I also completed a post-graduate program in addiction studies, a rather specialized area within the broader field of psychology, and one where there is always some psycho-pathology at issue. I understand that an IE case can result from some underlying stress or trouble a person may be experiencing (and about which he may not be consciously aware), but I also know that these incidents can just “happen.” Not everything about a case has be a big deal, and my job is make sure that, to the extent possible, we keep it that way in yours.

642x361_Embarrassed_to_Visit_Your_Doctor-1An interesting thing happened the week this article was written. In the course of meeting with a new IE client, his explanation for what led to his arrest involved circumstances a bit different from what I usually hear. It wasn’t the uniqueness of his case that struck me, but the fact that, within my office, no one even thought to ask about it. In other words, this poor guy came in, understandably embarrassed, even though he didn’t need to be, and because my staff and I see so many of these cases, neither my senior assistant, my paralegal, nor my associate attorney so much as asked what happened in his case. Once he left, my staff took his information and contacted the court where it is pending and made sure all the paperwork, including the request for the police report, was properly and quickly filed. To everyone on our end, his case was no big deal; in fact, it was just another day at the office.

Feelings of embarrassment are normal, and expected, really, but they are also useful in assessing whether a person is a risk to re-offend. Here, I kind of have to split myself in two and look at this both from the clinician’s point of view, and also from the perspective of a defense lawyer who knows how to best resolve these matters. I’ve read countless clinical assessments in these cases – some completed by court-order, others undertaken at my suggestion to help in a case (and for what it’s worth (and this it’s no great secret that a savvy lawyer would do this) if an assessment done privately comes back and is not helpful to the case, it will never see the light of day), and they can be impressive in their use of scholarly language. At the end of the day, though, the part of the assessment everyone looks to is the prognosis about whether the person is likely to engage in such behavior again, or not. And sometimes, when the Judge believes the person has been embarrassed enough, it can be enough to put any such questions to rest.