Coronavirus (COVID-19) Alert: Our office is OPEN, and will remain open, to the extent possible, during this crisis. We have long handled consultations and retainers by telephone. We are managing all new and pending criminal and DUI cases under current and evolving court practices.

Driver’s License Restoration and Clearance cases are well-suited to start over the phone, and the “down time” many people have now is a good opportunity to begin this process.

Our consultations have ALWAYS been free, confidential, and done over the phone, right when you call. We are very friendly people who will be glad to explain things and answer your questions, Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST).

In part 1 of this article, we began an overview of breath test refusals in DUI cases, and the larger subject of chemical tests as well as Michigan’s Implied Consent law. We saw how there are really 2 kinds of tests: a preliminary breath test (PBT) which is administered at the side of the road before an OWI arrest, and then a formal chemical test that comes after arrest. Although a “chemical test” can include either blood, breath or urine, in DUI cases, it’s limited to breath and blood, as urinalysis cannot be used to calculate person’s bodily alcohol content (BAC).

lklhlkI explained that the refusal to submit to a PBT is only a civil infraction, and is very different from the refusal to submit to a chemical test as contemplated by Michigan’s Implied Consent law. If a person refuses a PBT, he or she only faces a fine and a penalty of 6 points on his or her driving record. In the real world, my team and I almost always negotiate the dismissal of a PBT charge as part of the resolution of an OWI charge. Although a person is legally “obligated” to take a PBT test, the failure to do so does NOT carry any potential suspension of his or her driver’s license.

In contrast, we then saw that refusing a breath or blood (i.e., chemical) test after arrest will automatically result in a 1 year suspension of a person’s driver’s license, unless a he or she timely requests and wins a hearing to challenge the refusal for 1 of the 4 specified legal issues before a Michigan Secretary of State hearing officer. We then looked at the how those issues are defined in the law. In this second half, we’ll dig a bet deeper to see what those legal issues really mean and how a person can still get his or her license back even after an Implied Consent refusal.

As Michigan DUI lawyers, we have to deal with breath test refusal issues almost everyday. We field a lot of questions about breath and blood tests, Implied Consent license suspensions, and everything related to a person having refused to provide breath sample when arrested for a DUI. This 2-part article will provide an overview of Michigan’s Implied Consent law, rather than any kind of granular analysis of the subject. Here, our focus will be wide, and cover the broader implications chemical testing and the law in Michigan DUI cases.

Preliminary-Breath-Test-PBT-261x300At its most basic, Michigan law requires any driver arrested for an alcohol-related traffic offense to submit to a chemical test when requested to do so by a law enforcement officer. Technically, a “chemical test” can be conducted on either a breath, blood or urine sample. In DUI cases, urine tests are largely useless, so they’re never really an issue. Although the officer (or trooper or deputy) can choose to request either a breath or blood sample from someone arrested for a DUI, most (but not all) of the time, a breath test is requested first, instead of a blood sample.

Michigan’s testing law is called “implied consent” because, at the time every person obtains a Michigan driver’s license, it is expressly noted that, by accepting that license, he or she agrees to provide a chemical test sample if arrested for an alcohol related traffic offense. In other words, he or she agrees, in advance, and as a condition of the issuance of that license, to provide a breath, blood or urine sample upon arrest for a substance-abuse related driving offense. This means that a person’s consent to such a test is implied (as in pre-given), just like his or her consent to being searched is implied if he or she goes through airport security.

In a somewhat recent 2-part article about the proliferation of what I call “McLicense” lawyers, I noted that our firm – a genuine DUI and driver’s license restoration law firm – charges more than most others. I also pointed out that we have zero interest in “competing” with anyone on price, because, as I put it, nobody can compete with us in terms of service and results. We guarantee to win every driver’s license restoration and clearance case we take because we control every single part of the appeal process, including completion of the required substance use evaluation that must be filed with every case.

2q-274x300We recently were hired by someone who indicated that they had found some other lawyer who was charging less than us (not a surprise), and who also had some kind of guarantee. What made the client go with us, however, is that the other attorney did NOT recommend a specific substance use evaluator for her to see. Neither did that lawyer require require a meeting with the client before the evaluation to prepare her for it, something we do in every case. We also give specific documents to our clients to provide to the evaluator (although now, given the virtual nature of how things are being done, we email them directly to her).

These documents includes a marked-up, color-coded copy of the driving record highlighting all the relevant information that needs to be included within the evaluation, along with a special form of our own creation, called a “Substance Use Evaluation Checklist.” Although it is critically important to review every document, including the substance use evaluation, before it’s ever filed with the Michigan Secretary of State, it’s far better to take the time to make sure it’s done right in the first place, and we do. Precisely because we control all the information that goes into the evaluation, though, it’s far less likely to need “fixing” when we get it back for review.

One of the more frustrating parts of any professional’s job is explaining something to a person, only to have him or her largely ignore it, and respond with something that’s completely wrong, but that he or she likes better. As Michigan DUI lawyers, we encounter this somewhat regularly. For example, people often wind up hearing (and then believing) all kinds of incorrect things about DUI law (like the legalities of breath testing, or Michigan’s Implied Consent law,) either from someone who is not a lawyer, or from some lawyer who doesn’t concentrate in the DUI field.

GIrl-3-300x239This inevitably devolves into a variation on a theme I examine regularly: People are much more attracted to what they want to hear rather, than what they need to hear. While understandable, that’s a huge vulnerability that makes an otherwise rational person susceptible to getting fleeced into paying some lawyer for a result that sounds too good to resist, but just isn’t going to happen. This kind of misinformation is what drives so many weight loss programs, house-flipping schemes, and fitness crazes du jour.

Have you ever met anyone who went from flab to fab using a gizmo they saw on TV? Yet for all the laughs to be had about such gimmicks, there are still loads of people who want to be in shape so much that the idea of getting a beach body by twisting away on some $20 board for a few minutes a day while watching TV sounds awesome, and who gladly pay up. Moreover, the sellers of these products work hard at making such results seem plausible. Remember, though, and as the old saying goes, “if it sounds too good to be true, it probably is,” especially when it comes to DUI cases.

As Michigan driver’s license restoration lawyers, if we had a nickel for every time someone contacts us and says “I haven’t had a license in [X number of] years,” or “I haven’t had a license for a long time,” we’d be rich beyond measure. In this article, I want to explain why it doesn’t matter how long a person has gone without a license, and then turn to the single thing that does matter more than anything else when it comes to getting it back – that he or she has given up drinking.

4-300x291The fact that a person hasn’t had a license for a long time is a complete non-issue as far as license appeals go. There are exactly 2 temporal elements that matter in the context of a license restoration or clearance case: first, that the person’s period of revocation has run, and second, that the person has been sober for a “legally sufficient” period of time. Although the length of required sobriety can vary from case to case, in our practice, we generally require our client’s to have a minimum of 18 months’ clean time before we’ll move ahead with a driver’s license restoration or clearance case.

To win a Michigan license appeal, a person must prove 2 things, by what the law defines as clear and convincing evidence: first, that his or her alcohol problem is “under control,” meaning he or she has been completely abstinent for that legally sufficient period of time mentioned above, and second, that his or her alcohol problem is “likely to remain under control,” which requires showing that he or she has both the commitment and ability to remain alcohol-free for life.

As Michigan DUI lawyers, my team and I consider ourselves to be rather good at what we do. I have no doubt that in every DUI case we handle, we manage to bring about the very best result possible. We have more than enough experience and skill to do just that, but there is also a 3rd element to being a good DUI attorney that often gets overlooked: a strong conscience. When we accept a retainer from someone, we feel a moral obligation to do everything possible to make sure we produce the best outcome for him or her.

90ef7413cfaf8d31aaad1b9bd8f6-which-is-more-important-following-orders-yes-or-doing-the-right-thing-noFor everything I can and will say on this subject, it really comes back to the simple principle of treating others as you would wish to be treated. There are certain times in life when you have no choice but to put your trust and well-being into someone else’s hands, and when that happens, you can only hope that person will put his or her heart and soul into the job and look out for you like they’d look out for their own family. We always feel that responsibility when someone puts their trust in us, and we absolutely pour our hearts and souls into the work we do.

If there’s a point to be made here, it’s that all 3 of these ingredients – experience, integrity, and skill – must be present for a lawyer to really be “good.” Who wants a really smart, sharp lawyer that can’t be trusted? On the flip side, what good is the most honest attorney on the planet, if he or she isn’t sharp? In certain fields, like law and medicine, brighter is better, but raw intelligence always needs to be guided by a strong moral compass, as well. This goes a lot deeper than merely not being a crook, and extends to making sure to look out for interests that people don’t even know they have.

As Michigan driver’s license restoration lawyers, we deal with people wanting their licenses back every day. A recent email exchange and phone consultation with such a guy provides a great example of what’s really needed to win a license appeal case. I’ll reprint the email exchange exactly as it was written (with the exception of the person’s name, of course) a bit later, but the main takeaway from our interaction was that the guy had NOT stopped drinking and had no interest in any kind of sobriety, but still thought he should be able to get his license back, anyway.

HKJHKJHKJHKIn the previous article (like so many I put up), I tried to make clear that the single most important – and absolutely necessary qualification – for winning a license appeal is that a person must be genuinely sober. Legally speaking, to win a license appeal before the Michigan Secretary of State, a person must prove 2 things by what is specified in the law as clear and convincing evidence: first, that his or her alcohol problem is “under control,” and second, that his or her alcohol problem is “likely to remain under control.” Let’s break that down in the next few paragraphs.

A person’s alcohol problem is considered “under control” when he or she has been completely abstinent from alcohol for a “legally sufficient” period of time. The exact amount since required since a person’s last drink varies from case to case, depending on any number of factors. In our office, though, my team and I generally want a person to have at least 18 months of abstinence before we’ll even consider filing a restoration or clearance case for him or her.

In many of my license restoration articles, I try to make clear that the single most important, non-negotiable requirement to win a Michigan driver’s license reinstatement case is that a person must be sober, and have given up drinking. Legally speaking, a person must demonstrate to the Michigan Secretary of State that he or she has been alcohol-free for a legally “sufficient” period of time (in our practice, we generally require at least 18 months’ of clean time) and that he or she has both the ability and commitment to remain alcohol-free for life.

6a00d8341c39e853ef014e8611b33f970d-320wi-300x300This doesn’t go over too well with people who still drink. My team and I are regularly treated to the frustrated responses of callers who think they need to remind us that drinking is legal, and no matter what the state says, it’s “bull$hit” to make not drinking a requirement to get their license back. Some will say that they understand the state’s reasoning for not restoring driving privileges to someone who has lost his or her license for multiple DUI’s and is therefore considered too risky when it comes to alcohol, but that they’re different. This article will be about that kind of bad attitude.

We have been told by callers, countless times over, that they are perfectly capable of telling the Secretary of State whatever we suggest they need to say. We have also been called various unkind names after we tell such callers that we really do ONLY take cases for people who have honestly quit drinking. Sometimes, it’s suggested that, now armed with the knowledge that they have to say they no longer drink in order to win a license appeal, the person will call another lawyer who will gladly take their business, implying that we’re not smart enough to take a payday when we’re offered one.

As Michigan DUI lawyers, we interact with people facing DUI charges all day, everyday. While statements like “we get to know our clients” are good marketing lines, they really don’t mean anything specific. In the context of a DUI case, the idea of who you are is important on 2 levels: first, so your lawyer can address the specific concerns or issues that you have (ability to drive, professional license, etc.), and second, so that your lawyer can use your “social capital” (meaning trade on the value of what you’ve done in life) to produce a better outcome in your case.

Admittedly, a lot of how things work out in any DUI is a direct consequence of a lawyer’s experience and skill. To a certain extent, a really good lawyer can, especially in terms of presenting the case, make up for some of what the client is missing. It’s worth noting that even when lawyers or well-liked celebrities get in trouble, they always hire a well-spoken lawyer and let him or her do the talking. I know that if I needed an attorney, I’d want want one who was well-groomed and who could talk the leaves off the trees. In this article, however, we’re going to focus on the other side of that equation; the client.

In the previous article, I explained that right now, during the Coronavirus pandemic, the Michigan Secretary of State is conducting all driver’s license restoration hearings remotely. In this article, I want to examine the impact that going remote has had on the way Michigan criminal and DUI charges are being handled, both in the courts, and in our office. As of this writing (October 2020), we’re 7 months into the pandemic, and the legal world is adapting to handling cases in new ways.

Lady5Having had to do that by sheer necessity, there are likely to be some permanent changes (at least in our practice) to the way criminal and DUI cases are handled in the future, many of which are favorable. Right now, in the Metro-Detroit area (meaning Wayne, Oakland, Macomb and the surrounding counties), “going to court” in many jurisdictions means connecting to a legal proceeding virtually. So far, we haven’t had a single complaint from any client who had to appear on a video conference with the court instead of actually having to have physically show up in it.

I don’t expect there to be any complaints, either. It’s basic human nature to prefer to do things the easier way, especially when the outcome is at least as good as it would be otherwise. There’s an old saying that “necessity is the mother of invention,” and even though the idea of holding meetings virtually is not any kind of new invention, society’s attitude about them, and expectations for them, have certainly evolved in the past several months.

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