DRIVER'S LICENSE RESTORATION

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

MICHIGAN DUI

A good strategy can make a huge difference right away.

CRIMINAL CASES

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

In my capacity as a DUI and driver’s license restoration lawyer, I deal with positive alcohol tests and the problems they cause just about every single day. This article will focus on failing a PBT and/or an ETG test in a DUI case. This happens either when a person is required to test while on bond, or while he or she is on probation. We’re going to be blunt and honest in our discussion here. In that context, it’s almost a given that you’re not here reading this because you want to know how to avoid failing an alcohol test in the first place, but rather because you have already failed one. Sure, there are cases where a person is the victim of a false positive result, but we won’t waste much time on that because the vast majority of positive results do, in fact, accurately reflect that a person had been drinking. For the most part, this article will focus on those real life situations where a person has been caught, despite being ordered to refrain from consuming alcohol, and now faces going back to court for a bond or probation violation.

ScrewedUpMyStory-300x300The reader may be surprised to learn how often this happens. Because I am a DUI lawyer, and not some guy who takes on every kind of case under the sun, almost every client in my busy office comes in for something related to either current or past OWI case, or at least something similar. I begin almost every workday in some court or other for a DUI or DUI-related case. Over the course of my years, I have been involved with, quite literally, more failed alcohol and drug test violations than I could ever count. I’ve handled violation cases for people in every kind of occupation, from doctorate-level professionals, successful business types, to folks who are changing careers. The point I’m making is that getting caught happens to people of every stripe. What I want the reader to understand is that this has less to do with my practice than the experience of the court system and the people that go through it. It’s no more surprising for a surgeon, nurse, accountant or lawyer to wind up violating a “no drinking” condition of bond or probation than it is for Snake the Biker to do so. Accordingly, alcohol and drug testing is the great equalizer, and here, one’s social capital doesn’t count for very much, because positive is positive, whether you are the Executive Vice President of a Fortune 500 company or you empty trash cans at the mall.

This, of course, explains why probation officers and Judges are skeptical, and can seem almost outright cynical. They become that way over time. This will happen to anyone who plays some part in this system (including me, except I get paid to work past it). With time and experience, you hear and see it all, from the occasional false-positive test to all kinds of bizarre circumstances, with offers of just about every excuse you could ever imagine. In fact, one of my all-time favorite explanations that people give for testing positive for alcohol actually has a name – the “NyQuil defense.” You can probably guess the rest. I know better than to try using it, but it wasn’t long ago that I saw a lawyer standing next to a client in a local court and as soon as cold medicine was brought up, the Judge, quite literally, waved it off with her hand and said something like, “Oh no, we’re not even gonna try the NyQuil defense.” I was on my way out of the courtroom, but I sure hope that lawyer had a better “plan B” than his “plan A.”

In my role as a Michigan driver’s license restoration lawyer, I written every article this blog, which is by far the best and most comprehensive resource for information about every facet of the license appeal and clearance process on the internet. One thing that I have to bring up regularly, just to keep squarely within view, is that you must have quit drinking in order to win your license back. While I guarantee to win every case I take, I do not take every case that comes my way, and will only accept cases for people who genuinely do not drink anymore. I get endless emails from people who tell me how much they need a license and how long they’ve gone without one, but when I ask how long they’ve been sober, things suddenly go quiet. In this familiar-themed article, I want to make clear, once again, that you must have completely severed your relationship with alcohol as a pre-condition to winning a driver’s license clearance or restoration case filed with the Michigan Secretary of State’s Administrative Hearing Section (AHS).

89b6b6b380687d516ec55270162905f7-213x300Look, I’m in business to make money, not turn away people who are willing to hire me. However, I do have a conscience AND a guarantee, so I simply cannot and will not take on a case that cannot win. Sobriety is a non-negotiable requirement to win your license back. I was speaking with another lawyer recently about this, and he kind of laughed in agreement and said that once, when he asked a guy if he was sober, the reply was something like, “Yep. I only drink beer now.” Among other things, over 27 years as a lawyer has taught me that many people simply don’t understand that an important part of what sobriety means is that you have completely stopped drinking. For its part, the Michigan Secretary of State (SOS) has drawn a line in the sand regarding license restoration and clearance appeals; only people who have quit drinking for good can win. Period. The state knows that, whatever people will say about how they are “different” now when it comes to drinking, and despite all the commitments and promises they make to never drink and drive again, those who no longer drink alcohol are exactly zero risk for a repeat performance. That’s the safest bet, and the only one the state will make. It’s that simple.

At least to me. And the Secretary of State. Part of the problem here is that everybody needs a license, so when some of them go online and find something like this blog or my website, see that I guarantee to win every case I take, they think, “Eureka!” It’s human nature, I suppose, for someone to focus more on how tough things have been without a license and how long they haven’t had one, than anything else. It’s perfectly understandable that a person will believe, in his or her heart of hearts, that no matter what, they’ll never drive drunk again. Under the main rule (Rule 13) governing license appeals, however, a person has to prove that he or she has been completely abstinent from alcohol for a sufficient period of time (in the rule, this is stated as the person’s alcohol problem being “under control“). The Secretary of State’s AHS hearing officers are given rather wide discretion in determining how much abstinence is enough (i.s., “sufficient”). More important, the second part of the rule requires that a person prove that his or her alcohol problem is “likely to remain under control,” which means that he or she has the commitment and the tools to remain alcohol-free for good, and otherwise seems like a safe enough bet to not drink again. This is really the “meat and potatoes” of the license appeal process – proving that a person will never drink again.

Okay, you’ve been arrested for OWI and now you’re googling around trying to figure this all out. You want real information, not “infomercial” type stuff. It seems that almost every legal website (except mine, of course!) says the same, “me too” things, and then instructs you to “call now!” In this article we’re going to cover several issues that anyone facing a a 1st offense DUI should really know. As I point out elsewhere, although I am a DUI lawyer, and all kidding aside, this is going to be more than a “hire me” piece. My goal here is to provide useful information for anyone facing a 1st offense drinking and driving charge no matter where in Michigan he or she may live, even though I limit my DUI practice geographically to the Metro-Detroit area, meaning Oakland, Wayne and Macomb Counties. It’s natural and normal for someone facing his or her 1st DUI (and, in many cases, first criminal charge ever) to try and find some reassuring information about the things that worry them most. To help get us off to a good start, let’s put to rest the 3 biggest fears most people have:

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/02/freak-1.2-276x300.jpgFirst, you’re almost certainly NOT going to jail. Second, you won’t lose your driver’s license. Third, you’re not going to lose your job (unless you do something like drive a school bus or an ambulance for a living). You’re life is not over, it’s not about to come to an end, and, best of all, you’ve already been through the worst of all this. As you search the web, ignore the fear-based marketing messages; no lawyer is going to save you from consequences that you DON’T actually face in the first place – like jail. Yet for all of that good news, this isn’t going to be a ride in the park, either. To balance what we covered at the top of this paragraph, let’s look at 3 sucky realities of every DUI case: First off, a DUI is going to cost you a chunk of money. Second, it is going to be inconvenient because it’s designed to be that way. Third, the short and cold answer to just about any question that begins like, “How am I supposed to…?” or “How do they expect me to…?” is “That’s your problem.” Now, let’s look at these suck factors in reverse order, beginning, however, with that last one first, because that really takes us through the ugliest part of all this.

When you are convicted of a DUI offense, no matter how minor, your driver’s license is going to be restricted in some way. A restricted license DOES allow you to drive to, from and during the course of (meaning “for”) work, to and from your own school, to and from any necessary medical treatment, to and from anything the court requires you to do, and to and from any support group meetings, like AA. This means that you can drive anytime, anywhere, and for any reason that is required for your job, but, by contrast, you cannot take your kids to their school, cannot take them to their doctor, cannot drive to get groceries, nor can you drive yourself to the gym. If you’re a single parent, this means that the answer to the question “How am I supposed to get my kids to school if I can’t drive?” is, as I noted before, “That’s your problem.” This is no picnic, but it’s not permanent, either, and however you manage it, you’re still a hell of a lot better off having to figure out how to get your own groceries than eating jail food, right? And with that out of the way, everything else gets easier from here…

In part 1 of this article, we began our examination of the ignition interlock unit that must be used for at least a year when a person wins (shameless bit of self-promotion here: I also noted that I guarantee to win every license appeal case I take, so for my clients, getting back on the road is definitely a “when” and NOT an “if”) a Michigan driver’s license restoration case. Along with the interlock device, a person is required to drive on a restricted license for at least the first year after winning his or her license back before being able to appeal again for a “full” license. Here, in part 2, we’ll finish our examination of missed and positive tests, and then we’ll go on to look at a number of other important factors about the interlock, including positive alcohol readings, how to avoid an ignition interlock violation in the first place, and what you should do if (and when) you run into trouble.

Blower-2-300x274It is important to understand that when a person misses a test, it’s about a lot more than just showing a proving that he or she hadn’t consumed alcohol before he or she missed a test. That’s helpful, but it doesn’t answer why the test was missed in the first place, nor does it otherwise excuse not taking the test when required. Think of it this way: in many cities, on-duty firefighters are required to be in the firehouse while on duty. A firefighter can’t skip going to the firehouse on a workday and, when confronted with skipping work, demand pay and defend him or herself by pointing out that there were no fires or runs that day. As much as the firefighter’s job is to be at the firehouse, if a person is on an interlock, it’s his or her job to provide a breath sample when requested. Missing a retest will automatically cause a violation that revokes a person’s license all over again.

In the real world, most missed tests occur because a person is out of the vehicle for a few minutes (maybe he or she has run back into the house to get something) and doesn’t hear the alarm, only to subsequently notice that they missed providing a sample once they get back in. If that sample isn’t provided within the 5-minute window, then it’s too late. And to be clear, the window is EXACTLY 5 minutes; even at 5 minutes and 1 second later, a violation is automatic. The Secretary of State, for its part, provides specific directions, within the body of the order granting a license appeal, about to avoid this, as well as specific directions about what to do if a person does, in fact, provide a sample that registers positive for alcohol. This information is toward the back of the order, and, unfortunately is often missed by people who are so happy to have won that they stop reading at the point of being told what providers they can use, or who scan it quickly and then forget about it.

My last blog installment was a 2-part article in the driver’s license restoration section of this blog was about about how every Michigan resident who wins back his or her license must drive for at least the first year with restrictions. In that article, I pointed out that an ignition interlock unit is also required for that first year, and I promised to examine how that works in a separate, upcoming piece. This is it. In a sense, the interlock might just be the hardest simple thing you will ever have to deal with. In this 2-part follow up, I want to explain a little bit about what it’s like to “get on” the interlock, what you can expect while using it, and pass on a few tips to avoid screwing it up, as well. To be clear, NONE of this applies to someone who is not a Michigan resident. If you don’t live in Michigan, but have a Michigan “hold” on your driving record, the Michigan Secretary of State (SOS) cannot issue a license to you. Instead, if you win your license appeal, the SOS, through its administrative hearing Section (AHS) will remove the hold. This is technically called a “clearance,” and getting it allows a person to get a full license in whatever state he or she lives. Michigan residents, however, must always start out with a restricted license and use an interlock for at least 1 year before they can appeal again for a “full” license, and there is NO way around this.

Blow-2-300x222The way it works is that when you receive the order from the Secretary of State granting your appeal, it contains instructions about how to get an interlock on your vehicle (it doesn’t have be in your name or even be “your” vehicle, but it’s best if you’re the only one who will drive it because whoever does has to know how to use the interlock, and you’ll be held responsible for any problems with it, even if caused by someone else). You’ll have to use one of the providers approved by the state. You must get the interlock installed and take proof of that to a Secretary of State branch office before your restricted license will be issued. I’m often asked how much the interlock costs; although they vary, a person can count on spending between $70 to about $100 per month. There are always deals on installation, and my office provides coupons for discounts to all new clients. It’s not dirt cheap, but it’s not a bank-breaker, either, and you only have to do it for a year.

Sounds easy, right? In a sense, it is, and of course, my office is always available to help any of my clients at every step along the way, from helping find an interlock provider to handling problems in order to avoid a violation while using it. The cold truth, however, is that some of the interlock providers don’t do a great job of explaining how the device works. A client once said that he knew this whole thing was going to be a challenge when he saw that the “technician” assigned to install the unit and teach him how to use the device was seriously into “ear stretching” and had obviously been into “gauging,” meaning sticking ever-bigger discs in his his earlobe holes, for quite some time. I’m sure that wasn’t a sight to inspire confidence. It’s not always like that but I’d also certainly caution against  showing up at the interlock place and expecting to meet someone in a clean, white lab coat, either.

In part 1 of this article, I made clear that anyone who wins a driver’s license restoration case and is a Michigan resident must spend at least one year driving on a restricted license, using an ignition interlock (a subject we’ll examine in an upcoming installment).  A non-resident of Michigan, but with a Michigan hold on his or her driving record, must present the exact same evidence to win a clearance of that hold.  Because Michigan cannot issue any kind of license to a non-resident, getting a clearance enables him or her to go and get a “full” license in whatever state they live.  We next saw that for Michigan residents, however, there is absolutely no way around starting out with a restricted license (and interlock) for at least 12 months after you win your license appeal.  We concluded by listing the 5 provisions of a restricted license, explaining that the 5th (things ordered by a sentencing court) doesn’t apply to anyone winning a license appeal, and then moving on to briefly examine the scope of a person’s ability to drive for employment and medical purposes.  Here, in part 2, we’ll pick up by examining, in turn, remaining 3 provisions of a restricted license, and how the terms of those restrictions can be modified.

StartSmallThinkBIG-224x300The restriction for educational (school) purposes (to and from any school or educational program of the person holding the license) allows a person to drive to and from any kind of formal schooling.  And to be clear, this third restriction means that while a person can take a class in art appreciation at the local community college and can drive him or herself to and from it, he or she cannot take their own kids to school, nor even drive a sick child to something as important as lifesaving kidney dialysis.  While there is no limitation on a person’s ability to drive to and from school, the rule does not allow a person to drive for school, so if a teacher orders everyone to do a field trip to a local museum, the restricted license does not cover that.  In other words, unlike the restriction for employment, that allows a person to drive to, from, and during the course of (meaning for) work, the school restriction only permits driving to and from school, not during the course of anything required (i.e., for) it.

The support group restriction (to and from any support groups), like that for school and medical treatment, enables a person to drive “to and from” any recognized support group meetings, like AA.  There are other sobriety support group programs other than AA, and the terms of a restricted license permit a person to drive to them, as long as the group is one that is legitimate and “recognized.”  It’s easier to figure out what is not recognized rather than name off every legitimate group out there.  Thus, a person cannot create and attend “The Sober Monday Night Football Watchers” or anything like that.  The “to and from” means that you can go from home to the meeting, and then back home thereafter, but if a group of people goes out after the meeting for coffee, or to get a bite to eat, that’s not permitted.

This 2-part article will explain why, if you file and win a Michigan driver’s license restoration case, you must start out with a restricted license, and what that means. I also want to differentiate a driver’s license restoration case from a license clearance case, particularly because winning restoration of your Michigan license requires starting out with an interlock and driving restrictions, while winning a clearance of a Michigan hold is the only way to win a “full” license the first time around. Having just said that, I can almost hear a chorus of readers saying something like, “That’s what I want, then; a clearance.” If it was that easy, everyone would bypass the interlock and restricted license. It doesn’t work like that, however, and, in the following paragraphs, I will explain why. We’ll confine our examination here to restricted licenses, and take up the subject of ignition interlocks in a separate, upcoming article.

Stopper-300x293First, let’s clarify the 2 key terms: a “license restoration” means to restore, or win back, one’s Michigan driver’s license. A “clearance,” on the other hand, is the process by which the Michigan Secretary of State, through it’s Administrative Hearing Section (AHS), removes the hold on a driving record for someone who is no longer, or is otherwise not a Michigan resident. To be clear, while most people who wind up with a Michigan “hold” on their driving record used to be Michigan residents, it is also possible for someone who never lived here to still wind up with a Michigan hold on their driving record. A clearance removes that hold and allows that non-resident to get a license in the state in whatever state he or she now resides.

Thus, restorations are for residents, clearances are for non-residents. The Secretary or State cannot issue a driver’s license to a non-Michigan resident. This is pretty straightforward, but just about everyone, including many lawyers, use terms like “restoration” rather loosely, so lots of people are unclear about the differences between a clearance and a restoration. What makes this even more confusing is that a person must present the exact – and I mean absolutely the same – evidence to obtain a clearance as he or she would to restore a revoked Michigan driver’s license. The only difference is the end result: a non-resident can only be granted a clearance releasing Michigan’s hold so that he or she can get a license in whatever state they now live, whereas a Michigan resident can only have his or her driving privileges restored, and that requires him or her to drive for at least one year on a restricted license using an ignition interlock device.

For successful people, a DUI charge carries some additional considerations beyond just staying out of jail. I have made clear a million times over, within many of my DUI articles and on my website, as well, that with only one possible exception in the Greater-Detroit area, you are simply NOT going to jail in a 1st offense DUI, so any efforts directed at avoiding what isn’t going to happen anyway are both misdirected and wasted. For some individuals, being charged with OWI (Operating While Intoxicated) doesn’t really pose a threat to their livelihood or reputation, while for others (like teachers, nurses, physicians, engineers, etc.), the idea of anyone so much as finding out about it is a nightmare. Rather than play into those fears, however, I believe that an import part of my job as a DUI lawyer is to make clear that most of them are unfounded, and help the client deal with those consequences that will or are likely to occur.

busy-846x414-300x257First, there is the issue of finding a lawyer. No, this is not going to be a “call me” piece, and I hope that someone reading this anywhere can apply what we cover in his or her local area. And that, of course, segues right into on of the more important lessons here: hire local. My DUI practice, for example, is limited to the courts in Oakland, Wayne and Macomb (as well as a few surrounding) Counties. Wherever you live, don’t drag in some lawyer from across the state, or from too far away, who is not a regular in the court where your DUI case is pending. No matter how you cut it, you are either going to pay for a lawyer’s experience, or else you wind up paying his or her tuition.

I don’t want this to seem like an attack on lawyers, but the reader has no doubt already discovered that there are endless firms and websites, all pretty much with the same messages about having experience, being tough and aggressive, offering free consultations, and urging you to  “call now.” Most of these operations are trying to scream why you should hire them the loudest. As you look for a lawyer, you should see past that, and instead be seeking real and useful information. As you do that, there will inevitably be a few practices that stand above the rest in terms of actually providing it. Accordingly, you should be able to easily explain why you’re thinking about hiring them beyond the fact that they are telling you to do so. If you can’t articulate why you are interested in some particular lawyer or firm, then why are you considering them? In fact, amongst the best lawyers, the question really becomes “why should we take your case?” rather than why you should hire them, because such practices have clearly defined who they can most help and aren’t just waiting to take anyone who can pay their fee. As you look for a lawyer, you should keep that in the back of your mind. In my office, for example, we use our initial telephone contact with a potential client as a two-way screening opportunity. While some lawyers have no real choice other than to accept any offer of engagement that presents itself, the more capable sort will steer clear of potential clients who raise any kind of red flag, like the “know-it-all,” the angry person, or someone who already has a lawyer, among others.

Suspended and Revoked license cases account for the most common charges handled in all the district courthouses of the Metro-Detroit area. These cases seldom carry any real threat of jail (except for those who just don’t stop racking them up), but they do carry consequences to a person’s driving record that can not only result in remaining unable to drive legally (as in additional suspensions or revocations), but also cost a person a lot of money and headache that may otherwise be avoidable. Because driving offenses and driver’s licenses are at the center of everything I do in my role as a Michigan driver’s license restoration and DUI lawyer, and to borrow (and modify) a line from the Farmer’s Insurance Company TV ad campaign, “I know a thing or two because I’ve seen a thing or two.”

rajasthan-results-300x300I’ve written a lot about suspended and revoked licenses, but it always gets hard, once I start, to keep things brief, because as simple as these cases may seem, there are a million things that go into them or that can affect how they turn out, making this rather meaty subject hard to keep short and simple. DWLS and DWLR charges arise from and are part of the very same law. At various points in this article, however, I might just make reference to a “revoked” license in one place, and a “suspended” license in another because a person’s license is either suspended or revoked for very different reasons, even though the specific law being violated is the same in either case. I think it is important for anyone facing a DWLS or DWLR charge who’s looking for a lawyer to ask, “what can you do for me?” Also, a person should be wondering if there’s any benefit to hiring one lawyer over another, and if paying more for a lawyer means getting better results, or is just a waste of good money.

There are seemingly 2 nearly parallel, but very distinct considerations in every DWLS/DWLR case: the prosecutor and the court. In other words, plea deals are negotiated with the prosecutor, and then the legal penalties are imposed by the court. Both of those things have to work out favorably for you. On top of that (quite literally) one must understand the overriding role of the Michigan Secretary of State (SOS) and its administrative rules, because what might seem like favorable plea deal treated super leniently by the Judge can still cause the SOS to further suspend or revoke your driving privileges. In the real world, where these things happen, there are basically 2 kinds of people who wind up facing DWLS and DWLR charges: those who can’t drive because of a prior DUI (or multiple DUI’s), and everybody else. This generally (but not always) means that if your license is suspended for anything other than a drunk driving offense, you are in much better shape. Look, I’m in business to make money, but I’m also unfailingly honest, and any lawyer who doesn’t to tell you this up front, or says differently, is either frighteningly inexperienced or just plain lying. I point this because why you don’t have a license is THE starting point of any suspended license case. Another critical factor is where your charge is pending, because just like DUI cases, location really does matter in suspended and revoked license cases, as well. There are some courts where one of these charges can land a person on probation for a year, while the next court over may be more inclined to wrap the whole thing up with just a fine.

This will be the third and final installment in a recent, non-sequential group of articles about the role of drugs in Michigan driver’s license restoration and clearance cases. In the first piece, we looked at how the use of certain, “risky” medications can imperil a license appeal, while in the second, we saw that the use of medical marijuana, in any amount, will completely derail it. In this final piece, I want to focus on the non-medical, recreationional use of drugs. The first and, I’d hope, most obvious difference is that whereas with medical marijuana, and, for the most part, medication, the focus of inquiry here is more on past use, because it should be clear that anyone who currently uses recreational drugs is a million galaxies from being anywhere near eligible to win a license appeal. Thus, in this examination, we look backwards, into the past.

drugs-web-crop-300x259When a client comes in for his or her first, 3-hour meeting, we elicit the information necessary to complete all the forms required by the Michigan Secretary of State’s Administrative Hearing Section (AHS), the body whose hearing officers actually decide license cases. One of those forms requests very specific information about a person’s lifetime drug use history, so we’ll spend the time to cover that section thoroughly. That sounds pretty easy and straightforward, but decades of experience have taught us that people can easily either forget to list, on that form, some substances they’ve tried (even if only once or twice), and then remember them at the hearing, when asked, or, conversely, list certain substances on the form, and then forget to include them in an answer at their hearing, neither of which situations adds to their credibility or is otherwise helpful.

Now, if that was all there was to this, we could just end the article right here and say, “remember, don’t leave anything out!” Although omissions about past drug use are easily made, and most often not done with any intent to deceive, they always complicate things and can very often spell the quick end of a license restoration or clearance case. Yet there’s way more to this than just making sure the lawyer lists all of the drugs a person has tried on the appropriate form and that the person’s testimony is consistent with that. All prior drug use must also be disclosed to the evaluator, who must properly diagnose the same within the substance use evaluation, as well. It would be easy to caution someone to “just be honest,” but otherwise honest people often make honest mistakes, or honestly forget things, so when it comes to drugs, a person needs to be both honest and thorough.