DRIVER'S LICENSE RESTORATION

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

MICHIGAN DUI

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CRIMINAL CASES

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In part 1 of this article, we began our “big picture” examination of 2nd offense DUI cases by noting that there are really 2 key assumptions in every such case (particularly from the Judge’s perspective): first, that a 2nd offense DUI basically equates to the presence of a drinking problem, and second, that a person facing such a charge is a repeat offender. We noted that even if a person rarely drinks, picking up an OWI 2nd charge means that drinking is a risky activity for him or her. Here, we’ll pick up here and finish our examination of the drinking problem issue, and then move on to the habitual offender aspect of all this, and how, if handled correctly, we can use the issue of one’s troubled relationship to alcohol in order to offset the idea that a person is a habitual criminal. We left off in part 1 by noting that a person cannot simply show up to court in a 2nd offense case and claim that this is all just an unfortunate incident of bad luck, and/or that there’s really nothing to worry about with respect to his or her use of alcohol.

Why-is-Thinking-so-important-300x300This is important, because a person facing a 2nd DUI needs to understand that it really doesn’t matter how often or how much he or she does (or does not) drink, especially when they insist that no matter how things may look, they don’t drink that much, or otherwise don’t have a drinking problem. As the reader looks for a lawyer, keep this in mind, because it needs to be properly addressed by any lawyer worth hiring. If a lawyer doesn’t thoroughly work through this issue for you, then what is he or she going to do? Sure, one can “fight,” if there is something wrong enough with the evidence to fight about successfully, but if there isn’t, then what? What else can a lawyer do? Stand there and tell the Judge that the client insists he or she is not a big drinker, and doesn’t have a problem? What benefit with that bring? We surely know that the Judge has already reached the conclusion that the person’s drinking, is, to at least some extent, problematic. When handling a 2nd offense DUI case, the “I know it may look bad, but Im really not a big drinker” approach is worthless, and isn’t going to help anything. In fact, it only makes things worse.

That’s why acknowledging this is a starting point to correctly handle a 2nd offense DUI case. In fact, I’ll go one step further and say that the failure to address this up front is an outright mistake, and means the case is NOT being properly handled. As we noted above, though, there are really 2 assumptions that are part and parcel of every 2nd offense DUI case. Having briefly looked at the first (that the person has a problem with drinking), let’s now move on to the second – the idea that a 2nd DUI offender is a habitual offender, meaning a habitual criminal.

Anyone facing a 2nd offense DUI can literally “feel” the seriousness of the situation, so there is nothing to be gained by repeating all the scary things that could happen. As a Michigan DUI lawyer with the most informational blog anywhere, I’ve gone to great lengths to explain how most of those potential negative consequences won’t occur, anyway, and that even jail can be avoided in most 2nd offense cases. Thus, the last thing the reader needs is some laundry list of all the possible legal punishments that can be imposed. Nor, for that matter, does the reader need to endure some babbling sales pitch about how this or that lawyer can save you from them, or from more of them than the next guy. In this 2-part article, I want to step back and take something of a “big picture” look at a 2nd offense DUI situation and 2 key assumptions that run through every such case: the presence of a drinking problem and that the person is a habitual (meaning repeat) offender.

brainpuzzle-264x300To get a handle on that first assumption, forget the whole court and criminal justice system for a moment. Imagine you are at a social gathering with some really decent people. The subject of DUI’s comes up, and someone mentions that Lovely Linda’s husband was recently arrested for his second offense. By all accounts, Linda’s husband is a successful professional and a nice guy. A few people blink and say something like “wow,” or “ooh.” Why do regular people react that way? First, because it seems out of character or unexpected (Linda and her husband are, remember, nice people), and second, because people automatically assume that he has a drinking problem, based solely upon the news that he picked up a 2nd DUI. The distinction I want to the reader to think about here is that things are perceived differently, depending on your position in the situation. When it’s you facing the DUI, it is normal to have all kinds of excuses and explanations to minimize your actions. However, if it’s you hearing about someone else’s 2nd offense DUI, you generally and almost immediately conclude that he or she has some kind of drinking problem, and would likely be dismissive of all the person’s excuses and explanations to the contrary.

If we’re going to undertake a realistic examination of 2nd offense DUI cases, we have to begin with this. There are too many lawyers out there selling people what they want to hear, but in the real world, where these cases are actually handled, you have to understand how a 2nd offense drunk driving is perceived, especially in the court system where they are decided. You have to ask yourself if you’re looking for a lawyer to help you, or just agree with you. Whatever you may say or feel about it, the truth is that when you walk into court for a 2nd offense DUI, you are seen, up front, as having a troubled relationship to alcohol.

One of the quickest ways to lose a Michigan driver’s license restoration or clearance appeal is to use medical marijuana. This will actually be a very short article because there isn’t much legal analysis beyond the reality that if you do use medical marijuana, your license appeal case will be denied by the Michigan Secretary of State (SOS). In fact, most of the rest of this article is going to essentially answer all the “ but what about” kinds of questions that people have because they have a hard time understanding that there is no exception to the proposition that you cannot use medical marijuana and win a license restoration or clearance appeal case.

MMMA-LEAF-AND-SYMBOL_full-1-300x291In my role as a Michigan driver’s license restoration lawyer, I win licenses back for people under the rules established by the state. I don’t make those rules, not do I have the power to change them. I point this out because anytime someone brings up medical marijuana in the context of a restoration case, once I explain how that’s a deal-breaker, they want to argue to me how it’s unfair and why that’s wrong. None of that, however, changes the simple fact that, as of this writing, using medical marijuana will prevent you from winning your license back because that’s the way cases are decided by the SOS’s Administrative Hearing Section (AHS) under the rules as they exist now, and without a specific change in the law, it’s not likely to change any time soon, either.

Here’s the simple truth that’s going to piss a lot of people off, but I’ll do it anyway, given how I’m always going out about how honest I am and that I tell people what they need to hear, rather than just what they want to hear: a person in recovery is supposed to avoid any and all mood and/or mind altering drugs, as well as any drugs that can be potentially habit forming, unless there is no medical alternative, and even then, such use should be under the careful and direct supervision of a doctor who knows all about the person’s addiction problems. I’ve never seen anything remotely close to that with medical marijuana.

One of the biggest concerns for anyone facing a DUI is how it may or will affect their job. There is a horrific rush of emotions that follow a traffic stop when someone has been drinking, and they usually continue through the field sobriety tests, and ultimately, the arrest. Once a person is released from jail (most often, the next day), however, that panic usually turns to something more like dread as the person begins to figure out what to do next. In this article, I want to make clear that for almost everyone, including people with professional licenses (medical, legal, etc.), an OWI charge is NOT, legally speaking, a threat to your job. The court is certainly not going to interfere with your work; make no mistake, the court wants you to stay employed, because, in no small part, it wants your money. However, resolving a drunk driving charge is going to require your appearance in court a few times and, if you hire an attorney like me, spend some quality time with your DUI lawyer, as well, so you will have to make arrangements for that.

2Let’s be clear, and upfront, that if you have a Commercial Driver’s License (CDL), even a 1st offense alcohol-related conviction is going to cause it to be suspended. Thus, if you drive a truck, a school bus or an ambulance, unless the evidence in your DUI was really botched by the police (or you really had not consumed enough alcohol to be over the legal limit), this is going to suck, and yes, it will affect your job. Even that’s not necessarily the end of the world, however, because I’ve had plenty of clients who were valued enough by their employers to be kept on in a different capacity while their CDL was suspended. Most people, however, do not rely upon a CDL for their livelihood, and therefore really don’t have to worry about this .

Those with a professional license through something like the Michigan Department and Regulatory Affairs (LARA) may, and probably do have a duty to report a DUI conviction to their licensing agency, but beyond the report itself, there are not likely to be any consequences. When I represent a lawyer, for example, State Bar of Michigan rules require that both I, as the lawyer (for a lawyer) and the lawyer (client) report the same, promptly upon conviction. Most medical-type (health care) licenses require that a DUI conviction be reported at the time of renewal. If you look at the reasons medical/dental/healthcare licenses get suspended, the most one of ,it not the common reason is the failure to report a drunk driving conviction. I have handled 1st offense and 2nd offense DUI cases for many physicians, nurses, pharmacists, dental professionals and the like, and, because all of them compiled with their reporting requirements, not a single one of them have ever lost his or her license or otherwise had it suspended. What about the majority of people who don’t have any professional license to worry about, but are just concerned about the impact of a DUI on their job?

The use of certain prescription drugs is one of the most overlooked things that can completely derail a Michigan driver’s license restoration or clearance appeal. There is no mention of this in the Michigan Secretary of State’s “Driver License Appeal Practice Manual” or “Driver License Appeal Promulgated Rules” (both last updated in 2005), so the only way a lawyer learns about the role of drugs in license appeal cases is by finding out the hard way. It has been a while since I’ve addressed this topic and, with recent and ongoing developments in Michigan’s Medical Marihuana law (for my part, I have always spelled it “marijuana”), I think it’s time we look at this rather deep subject over several installments. In this piece, I am going to look at the role of prescription medications excluding medical marihuana, which we’ll cover in an upcoming, separate article. Our examination here begins with the assumption that a person has honestly quit drinking because that is a necessary and non-negotiable first requirement to win a license appeal.

unnamed-300x232Part of filing a license restoration or clearance appeal is answering questions about any prescription medication a person takes. This information must be listed in the “Request for Hearing” form required by the Secretary of State’s Administrative Hearing Section (AHS – formerly known as the DAAD, and the DLAD before that). In addition, and depending on the kind of medication being used, it must be listed and properly addressed by the evaluator in the substance use evaluation form. The catch, and the key to all of this, is that single word in the preceding sentence: “properly.” It’s easy throw that word out and have the reader gloss over it without giving it much thought, in the way one might read something like, “An investment of $10,000 today, properly managed, can grow to ten times that amount in a decade or even less” and not realize that, in that case, “properly managed” means finding the one-in-a-million, miracle investment. In the world of license appeals, any prescription drug use is going to be examined closely, so the lawyer better know what will fly and what will crash.

In that sense, then, “properly addressed” involves a lot. It first presumes that the lawyer sends his or her client to a competent, experience and qualified substance abuse counselor for the evaluation. This is where things can start to get deep, because there are very few lawyers, like me, whose practice focuses primarily on driver’s license restoration cases, while there are tons of others who say they “do” them. Those of us who concentrate in this field usually have a very small circle of evaluators we use, and, in my case, one who is primary amongst them all. In turn, there is no shortage of counselors who claim to “do” evaluations, because the form used by the state seems (emphasis here on “seems”) pretty straightforward. It takes a long time, and a lot of time, before a counselor learns all the things that go into the evaluation that are NOT obvious from just looking at it. For my part, I have taken my primary evaluator with me to multiple license appeal hearings to see, in person, how the evaluation is examined and interpreted by the Secretary of State’s hearing officers. That’s the kind of continuous and direct experience that allows an evaluator to “properly address” something.

Being a Michigan DUI lawyer means that a primary focus of my practice is handling DUI cases (the other part is driver’s license restoration appeals for those whose licenses have been revoked for multiple DUI convictions, so they’re quite related). I differentiate myself even further by noting that I geographically limit my DUI practice to the Tri-County (Wayne, Oakland and Macomb County), Metro-Detroit area. Plenty of other lawyers claim to handle OWI cases as part of a larger practice. Whether or not that provides enough courtroom experience to be considered any kind of “DUI lawyer” is questionable, at best. In this article, I want to address those situations where a non-lawyer starts digging around on the internet and starts thinking of him or herself as some kind of self-taught, quasi-expert. Someone may be great on Google, but that doesn’t make them a lawyer. My motivation for this article comes from any number of emails that I receive (and I’m sure plenty of other lawyers get them, as well) from people who learn a little about drunk driving laws and the DUI process, and then want to play lawyer, or co-counsel.

Docs-office-246x300To be brutally honest about it, those kinds of people are a royal pain in the a$$, and the only lawyers who deal with them are those that have to. In other words, confident and successful DUI lawyers don’t need to bother with them. A physician friend of mine once posted a meme of a sign hanging on a doctor’s office door that read: “Warning!!! Patient will be charged EXTRA for annoying the doctor with a self-diagnosis gotten off the internet.” This really is a variation of the idea that “a little knowledge is a dangerous thing.” There is already a lot of work that goes into successfully handling a DUI case without a lawyer having to correct what a client half-understands. To be sure, I’m the first one to suggest a person “read around,” and there are some basic things a person should learn and know about DUI cases, many of which can be found online. Moreover, it is a good thing if a person reads and learns enough to have intelligent questions, but that’s a whole different thing than when someone starts looking for a lawyer to implement his or her own amateur, self-made legal strategy.

Can you imagine going to a doctor’s office and telling the physician what to prescribe because you’ve done the research? Admittedly, I KNOW when I am in the early stages of having a sinus/upper respiratory infection (I’ve gone through this my whole life) and I also know that for the last 30 years or so, I have had success with a “Z-Pak” (Azithromycin), so in those situations I may have to tell a newer doctor about my history and that the Z-Pak has always worked for me. Still when I do go to the doctor’s office, I am often required to give a throat culture and wait for it to be checked to rule out strep, but I accept that as just part of the deal. Beyond that, however, I’m not about to play doctor, and, as a lawyer, have no interest in wasting my time with a non-lawyer who wants to play lawyer.

In my role as a Michigan driver’s license restoration lawyer, I get tons of calls and emails from people who need to win back their license. However, and as one hearing officer with the Michigan Secretary of State’s Administrative Hearing Section (AHS) so adroitly puts it, “everybody needs a license.” Needing a license, however, has nothing to do with actually winning a license appeal, anymore than needing money has anything to do with actually winning the lottery. In this article, I want to take a look at 5 common things that people believe are important, but that don’t really matter a bit in the context of winning a Michigan driver’s license restoration or clearance appeal. As we’ll see, not only do none of these things have anything do with winning your license back, there is one overlooked and recurrent theme within the process that essentially everything else and is the absolute key to getting back on the road.

635907898137118831-1557727704_5ThingsFirst, as we’ve just noted, the idea that you “need” your license couldn’t matter less to your ability to actually win it back. The whole point of the license restoration process is to make sure than only people who are and will remain sober get back on the road. When a person racks up multiple DUI’s, he or she is categorized, under Michigan law, as a habitual alcohol offender, and his or her driver’s license is revoked. The Secretary of State will not even consider giving a license back to someone who still drinks, or even thinks they can ever drink again. This point is missed by loads of people who will assure any and everyone that they are no longer any kind of risk to drink and drive again for all kinds of reasons: they won’t drink when they drive, they don’t drink like they used to, they only drink at home, they only drink once and a while, and so on. From the state’s point of view, however, these people are nothing less than proven risks. By contrast, who is the least risky to ever drive drunk again? People who don’t drink. Thus, the line in the sand is drawn there; the only people who have their licenses restored are those who have quit drinking for good and can prove it.

Second, a lot of people will observe, with a strong note of exasperation, that they haven’t driven in X number of years. I’m not trying to be the bad guy here, but that begs the question, “so what?” If proving sobriety is the key to winning your license back, what does not having had a license for any period of time have to do with that? Plenty of people don’t drive anymore, but still drink. It’s the same for people who complain that they haven’t had a license for a long time. So what? The key to getting that license back is proving sobriety, and that has nothing to do with how long you haven’t had a license other than your minimum period of revocation must have passed before you become eligible to file an appeal.

Among the things I’ve learned as a Michigan DUI lawyer and author of more than 800 articles is that most of the lawyers handling OWI cases are decent and honest people, but are also virtually indistinguishable from one another. In other words, professionally speaking, they’re almost all just about the same. Slick marketing professionals take advantage of the fact that most people are somewhat impatient, a bit lazy, and don’t want to get caught up in and endless search for a lawyer – all to the client’s disadvantage. Some websites allow potential clients to compare multiple attorneys at once, seemingly streamlining the process. Yet when you do line up a group of lawyers, you’ll find they all say the pretty much the same things: “tough and aggressive,” or “I will fight for you” (like you came looking for a wimp); “20-plus years experience,” (that’s nice, but tons of other lawyers (me, included) have that, as well); “Free consultation” (every lawyer does this, to some extent), or “Call 24/7” (even good room service isn’t available 24/7, so how desperate is that?). Whatever else, the best lawyers respect their time, because it’s important, and don’t even do evening or weekend appointments, much less answer the phone at all hours of the night.

How-to-choose-a-4G-LTE-USB-Modem-298x300So how do you find the best DUI lawyer without looking forever, or being bombarded with self-serving marketing tactics, endless glowing testimonials, or meaningless slogans like “proven results,” or worse, yet, giving your contact info to someone who won’t leave you alone? To do this right, you ARE going to have to invest at least a little time. This is an important decision and should be treated as such. To be clear, I do have something of a self-interest here – but – because I confine my DUI practice to the Metro-Detroit area (meaning primarily Wayne, Oakland and Macomb Counties), those interests are limited, and I want this article to be helpful for anyone in Michigan (and perhaps beyond) who is needs to hire a lawyer for a drinking and driving case. Everyone facing a DUI knows it’s serious, and doesn’t need to be reminded of all the potential negative legal consequences and punishments (most of which aren’t going to happen, anyway). You should run away as fast as you can from any operation that resorts to fear-based marketing tactics, or, on the flip side, who tries and make it sound like that they can simply make everything go away. Before you can ever find the “best” lawyer, you must first decide what kind of lawyer you’re looking for.

Price does matter, because not everyone can hire from the top shelf, and that’s okay. Someone on a budget should not waste time considering unaffordable lawyers (not that high fees mean a lawyer is particularly good, anyway). The money issue, however, should be tackled first, because it does help thin out the herd of potential candidates. Not to be outright cold about it, but this does require something of a choice between cost and quality. Paying a lot does NOT necessarily (or even often) add up to getting a good lawyer, much less one who is really great, but it’s also true that financial limitations will prevent you from being able to select from among the very best. That said, most people looking to buy a Porsche could not afford a Bugatti, either, so that’s a kind of choice that almost everyone faces, at least to some extent. Key here is to remember that you will never get the best at a bargain price, but also that high prices don’t translate to superior skills, either. That’s why it’s important to put some effort into this.

In my role as a Michigan driver’s license restoration lawyer, I am often hired after someone has previously tried to do a license appeal without a lawyer (or with some lawyer who claims to “do” these cases as part of a larger practice) and then lost. In this article, I want to revisit and reiterate why it’s better to let a professional handle these things, not because I’m greedy, or want to use scare tactics to discourage someone from trying; in fact, on both this blog and on my website, I have always said “go for it.” I really do have plenty enough business to stay busy with people who who just want to do it right the first time as well as others who have already tried and lost. My goal here is to try and help the person understand that it is worth hiring a driver’s license restoration lawyer, like me, for a license reinstatement case primarily in order to NOT lose, and NOT have to wait an entire additional year before he or she can file again.

bigstock-Professional-And-Amateur-Direc-78086273copy-300x289I remember, as I was growing up, that my dad was never much of a do-it-yourself kind of guy.  Working as a mailman, it’s not like we had lots of extra money to throw around, but my dad knew enough to let the experts handle the things that made them experts in the first place. Later on, as an adult, when someone would tell me that they had just fixed or installed something themselves that I had hired out, I would often pause and wonder if I should have saved the money and tried it myself. One thing I couldn’t overlook, though, were results.  Sorry folks, but most do-it-yourself work looks or ends up like do-it-yourself work. As I grew older, I began to pick up on little things, like when some technician working at my house would explain something to me along the lines of, “even though the directions say you should connect a 225 to the widget here, I always use a 226 because the 225’s clog up after a few years, and the 226’s never do.” In other words, there are all kinds of little tricks and secrets that people who do something day-in and day-out know that the one-time, do-it-yourselfer will never learn.  This really applies in the world of license restoration and clearance appeals.

This doesn’t matter so much if you can’t hook up the surround-sound system in your home, because you can call the expert in later to get it right without your having done much, if any damage. But if you remodel your own kitchen, you’re going to have to live with those results. If you do your own license appeal and lose, your not only going to be bumming rides for another year, but now you need to make sure the lawyer you hire next time can fix or get around the things you screwed up that caused your case to lose in the first place. For the most part, the things that people do screw up aren’t usually difficult for me to fix, but we should be very clear that you lose a do-it-yourself appeal precisely because you did screw something up. There’s really no nice way to put this without missing that key point. The big problem with anyone trying to do anything on his or her own is that you don’t know what you don’t know. Worse yet, very few lawyers really grasp the intricacies of the license restoration process, so no matter how you cut it, there is a strong element of luck involved in trying to do it yourself. Yet for all of that, if you’re inclined to give it a try, then go for it, as long as the cost of losing (not driving for at least another year) is something you can handle.

In my capacity as an Oakland County DUI lawyer, I am in a district court here somewhere almost every day of the week handling OWI charges. As a resident of Oakland County, I appreciate the efficiency that defines our district courts from Ferndale at the south end of the county to Clarkston at the North, and from Novi on the west side to Madison Heights on the east, and the places in-between, including Troy, Rochester, Royal Oak, Bloomfield Hills, Southfield, Farmington Hills and everywhere else. Because my DUI practice is concentrated in and limited to the Metro-Detroit area, I know how things work in these the local courts. I don’t try to be all things to all people, and therefore don’t take OWI cases outside of Greater-Detroit, Tri-County area, meaning I stick to Oakland, Wayne, and Macomb Counties. Oakland County is certainly the most unique of this bunch.

1391930_731769816839004_2111805347_n-300x300It won’t take long to hear that Oakland County is the toughest. Of the 3 local counties, that’s often (although not always) true. However, there are many rural counties in Michigan that have plenty of open jail spaces, and Judges that aren’t afraid to fill them. By contrast, Oakland County, the second most populous in the state, has a jail that is almost always bordering on legally overcrowded, so it limited space has to be somewhat “managed” for people like non-violent DUI offenders. In other words, even tough Oakland is generally “tougher” than either Wayne or Macomb Counties, there are plenty of other places in the state where a DUI charge carries far more risk of jail. As the saying goes, everything is relative.

Interestingly, and perhaps somewhat ironically, fines and costs in Oakland County are about average, and not, in any way, near the high end of the spectrum. A DUI in Oakland County will often not cost nearly as much as one in either Wayne or Macomb Counties.