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The underlying idea for this article came from Ann, my senior assistant, as we were discussing a case where someone had violated the terms of either their ignition interlock or probation by drinking. Although I can’t recall which it was, I had Ann send me an email using the exact phrase she used in expressing her own frustration at the time – “when has NOT drinking ever screwed you up?” – and waited for the right time to use it in an article. My practice is concentrated in DUI cases pending in Oakland, Macomb and Wayne Counties and Michigan driver’s license restoration and clearance appeals for people who live anywhere in Michigan, or who have relocated to some other state. As such, I deal with fallout from people drinking alcohol all day and every day. In this article, I hope to give someone who is in any kind of legal trouble where they should not be drinking a reason to pause and think twice before doing so.

3010-267x300The consumption of alcohol leads to a lot of problems for some folks. To be sure, most people never run into legal issues as a result of drinking. If they do its something like an MIP as a kid, or maybe a DUI as an adult, but they learn their lesson and never get into trouble again. Yet for all of those who either never get in trouble or who get past one unfortunate incident involving alcohol, there are plenty enough who seem to keep drinking despite the fact that they keep getting into trouble for it. This kind of self-defeating behavior is clear in repeat offense DUI cases, but it also is there, if not so obviously, in probation violation and ignition interlock violation cases where someone gets caught after having consumed alcohol when they shouldn’t have. As I noted in the previous installment, the problem with articles like this is that most people usually find them after the fact, when they’re already in trouble. Even if that’s the case here, I want to give the reader something to think about so that he or she can resolve to not make the same mistake again.

The majority of probation violations, especially in DUI cases, occur because someone tests positive for alcohol. This is really the crux of what Ann meant; when someone keeps getting in trouble for drinking, it might be time to take a break and ask, “when has NOT drinking ever screwed me up?” Although many probation violation and ignition interlock violation cases share the same cause – drinking – everything else about them is different. In DUI cases, I make my living in court keeping my clients out of jail, even after they’ve violated probation by drinking when they were forbidden by a Judge’s order from doing so. As we’ll see, things are a lot different, and, yes, even worse, if someone drinks alcohol and winds up with an ignition interlock violation brought by the Michigan Secretary of State, because it means losing your license all over again. For good. Let’s start there first, and get to probation violations in the latter part of this article.

I seem to return to the subject of ignition interlock violations more frequently than ever, probably because they are on the increase and they are a growing part of my caseload. In some of my previous articles, I have examined many of the reasons that an interlock violation can be brought. In this installment, I want to examine 2 different things about violation cases – what you’re supposed to do after a violation like a missed or positive test, and how the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers, who hear these matters, can be at risk for what I call “violation fatigue.”

Did-You-Know-logo-01-300x233To keep this article short, let’s skip all the background analysis about the why and how of violations and begin with the proposition that when you win your license back, the order granting it also contains some very specific instructions about proper ignition interlock use. Unfortunately, many people, in the excitement of being able to drive again, stop reading at the point that tells them where to go to get the interlock installed, and don’t read all the way through to the section about proper interlock use. Others may read it, but either “skim” that section too quickly or otherwise forget most, if not all of it, because things seem to be working just fine and they’re not having any problems with the machine. At least for the time being.

And then something goes wrong. Most of the time, at least among my clients, whatever happens is NOT a result of consuming alcohol, and that can lead to a false sense of security. In other words, when a person knows that he or she has not been drinking, it can lead to them assuming that this situation will resolve favorably because they honestly did not consume any alcohol. That’s not enough. One of the main points of the proper use instructions is to make sure a person has independent, objective proof that he or she hadn’t been drinking when there is a problem. This applies when an errant positive test is quickly followed by clean retests, and even when there is no positive alcohol reading whatsoever, like when a person misses a rolling retest.

In the previous article, I talked about getting through a DUI. In this installment, I want to focus more on just plain getting out of it. It goes without saying that everyone arrested for a OWI would love to have the whole thing to just go away. As a Michigan DUI lawyer, the primary thought in my mind, as I meet with a new DUI client and listen to what happened is, where do we find a way to get out of it? This isn’t just about wishful thinking, but rather assuming a mindset directed to winning. I often say that success in a DUI case is best judged by what does NOT happen to you, so if the entire case can be dismissed and nothing happens to you, what could be better? As great as that sounds, however, success is almost never an accident. Thus, a DUI lawyer has to set out with the determination to actually find a way to beat this thing, person-thinks-how-to-win-strategy-thought-cloud-words-speech-bubble-planning-winning-game-battle-31864780-286x300rather than merely hoping there is some way to do that.

For the most part, when DUI charges are dismissed, it’s because of problems with the evidence. There are specific protocols for how evidence must be obtained and tested in drinking and driving cases, and sometimes, if those protocols aren’t properly followed, that evidence can be kept out of court. Evidence needs to meet certain minimum standards in order to be considered reliable enough to use against a person. In the context of DUI charges, anytime a case can be dismissed because of problems with the evidence or questions about its reliability, that’s a win, and we’ll take it.

In the real world, there are 3 areas where we’re most likely to find problems with evidence significant enough to have it kept out of court: the traffic stop, the field sobriety tests, and the chemical evidence (meaning the breath or blood tests). While there can be problems with just about any part of a DUI case, these 3 stages present the most fertile ground for successful evidentiary challenges. Chances are, if there is a basis to challenge the evidence in a given case, it will have occurred during one of these 3 phases.

As a Michigan DUI lawyer, there are tons of factual and legal issues that I must consider when handling an OWI case. That’s my job. Most of what you’ll find written on the internet focuses on things like evidence, including field sobriety tests and BAC scores, along with how cases work out and how and why plea bargains matter. Those are all important things, but they fail to look at how things feel, and are perceived, from the client’s point of view. Seriously, once you’ve hired a DUI lawyer, you should feel some relief, and all that legal stuff should become his or her problem. In exchange for what you’ve paid, you should have the comfort and confidence of knowing that your case will be taken care of in the most beneficial way for you. As the person facing the charge, your stress level should go down because you genuinely understand that you’re going to get through this, and that everything will be okay.

large-227x300And it will. If it’s your first DUI, and even if you are charged with a high BAC offense, we can navigate around most, if not all of, the scary sounding penalties, including jail. Really, with only 1 possible exception in one Oakland County court, no one goes to jail in a 1st offense DUI case. While a 2nd offense DUI is pretty much a bucket of suck, it’s not the end of the world, either, and with any kind of good legal work, you can emerge unscathed, and often enough without any real chance of going to jail. In fact, unless you’ve racked up a bunch of prior OWI convictions, even if you’re looking at a 3rd offense DUI, you’re not going to go to prison (at least not here, in the Metro-Detroit, Tri-County area). In other words, no matter how bad things are or seem, you’ll get through this. Of course, the better your lawyer, the better things will be for you. After all, that’s exactly what you are (or at least should be) paying for. Whatever your situation, though, it always helps to realize that, down the road, in about a year or so, this whole mess will be behind you.

Ultimately, it’s not about whether you’ll survive a DUI – of course you will – it’s about getting through it with the least amount of consequences. I am a busy DUI lawyer, and my team and I handle a lot of cases. As far as experience goes, we are certainly in the “seen it all” category, and probably 10 times over, at that. Accordingly, I can honestly say that the worst punishment most people get in their DUI cases is self-imposed emotional stress, especially in 1st and 2nd offense cases. Some people just freak themselves out over a DUI way beyond what’s necessary. I hope the reader really takes the time to digest what I’m saying here, because the majority of DUI lawyers rely rather heavily on fear-based marketing tactics, even if they do so unintentionally.

The whole world of DUI cases can seem like an alphabet soup full of letters and abbreviations. As I pointed out in a recent article, Michigan doesn’t even have a “DUI” law; instead, we have OWI, which stands for “Operating While Intoxicated.” The OWI law came into effect in 2003, replacing the old law, which previously defined drunk driving as OUIL, or Operation Under the Influence of Liquor. In this article, I want to examine 4 different sets of 3 very important initials (FST, BAC, PSI and SOS) that affect every drinking and driving case that goes through the court system. Although the various drunk driving offenses are officially identified with some variation of the term “OWI,” I will mostly use the term DUI simply because that’s the way most people talk.

4-things-300x241The first 3-letter term a driver will encounter is FST, meaning field sobriety tests. These are the things you do at the side of the road, after being pulled over, and can include things like the heel-to-toe walk, standing leg raise, and the horizontal gaze nystagmus (HGN) test. Beyond these more “approved tests,” police officers also often ask people to count backwards from one specific number to another, recite the alphabet without singing, and/or tilt their head back and touch their nose. Field sobriety tests are named after the purpose they serve, allowing an officer in the field to determine if there is probable cause to believe a driver is intoxicated.

There is, of course, a large body of law and lots of science behind FST’s and that goes way beyond the scope of this article, but you can be sure that the police will almost always write in their report that the person failed one or more of them as justification for the decision to arrest him or her. Back in the day, before video, it was more or less the driver’s word versus the officer’s word when it came to how well or not a person did. Now, most police cars are equipped with dash-cam video recorders, so we can usually compare the officers account of how a person did on the FST’s with the video of how he or she actually performed. In my role as a Michigan DUI lawyer, I always look for, and do, in fact, find things on the video that help my client get out of his or her DUI charge. Even when the person didn’t do very well and video only serves to confirms the officer’s account that the person was intoxicated, having watched it gives both me and the client the piece of mind to know that we’re not missing anything we could successfully challenge to get the case thrown out.

The fact that I guarantee to win every driver’s license restoration and clearance appeal case I take sometimes leads people to mistakenly believe that all they need to do to win back their driver’s license is hire me. In this short article, I want to make clear that, beyond merely being able to pay my fee, a person must be sober for me to accept his or her case, and, more important, to be able to win it. The first and foremost legal requirement to win a driver’s license appeal case (and for me to take it) is that the client has honestly quit drinking. The whole point of the appeal process is about being able to prove that.

Sober2-300x182This is not just important, it is everything! The Michigan Secretary of State’s primary focus in license reinstatement cases is to screen out those people who present any risk to ever drink and drive again. The SOS has, for its part, correctly concluded that people who do not drink will not drink and drive, so it has drawn a line in the sand right there, and will only return a license to those people who can prove that they have genuinely quit drinking, and are a safe bet to never drink again. This logic here is really quite straightforward.

The purpose of the laws and rules governing license appeals is simple: to prevent anyone who still drinks, or even thinks he or she ever can drink again, from getting back on the road. My office gets tons of calls and emails from people who start off by explaining how much they need their license back, or how long it has been since they’ve had one. To be clear, that doesn’t matter one single bit in terms of qualifying to actually win it back. To be sure, a person must wait until he or she is legally eligible to even start the license restoration process. Under Michigan law, a person who accumulates 2 DUI’s within 7 years will have his or her driver’s license revoked for 1 year, while anyone who racks up 3 DUI’s within 10 years will be revoked for 5 years.

In the previous article about examining the evidence in a Michigan DUI case, I noted that just about everyone knows that the police report is important. I even pointed out that, once in a while, a proactive DUI client will show up for his or her appointment having already obtained that report (I also explained that doing so is not necessary because that’s one of the very first things we’ll get). In this article, I want to look at both the significance of the police report and also examine its main shortcoming. At best, a police report is the honest recollection of the officer who wrote it, but those recollections are, by definition, subjective, and can only be from the officer’s perspective. At worst, a police report can be a lot of exaggeration and BS. Often enough, the truth lies somewhere in the middle.

police-report-template-police-report-template-1-226x300In the old days, the police report was the pretty much “it,” in terms of evidence leading up to a DUI arrest. Now, we live in the video age. Most police cars today are equipped with dash cams, and it is standard practice in my office to obtain those video recordings in DUI cases. It wasn’t that long ago when almost no police cars had them, and the only real “evidence” of what took place during a DUI traffic stop was, as I noted above, the police officer’s written account of it. With video available for comparison, an officer in a car equipped with a dash-cam must always be mindful of that. Even so, it is not rare, by any stretch, to to read something in the police report that plays out differently on the video, or to see something on the video (like the rough treatment of someone arrested) that was not mentioned in the report.

Thus, we must begin with a clear understanding that the police report is not, and can never be, a completely objective record of what really took place during a DUI stop. This is not anyone’s fault, it’s just an indisputable fact that someone involved in a situation has a fixed perspective and therefore a subjective take on what happened. We all have a built-in bias simply because we’re human. Also, the ability to essentially create the story has a lot of value, as well. After a DUI arrest, when an officer goes back to write his or her report, do you think he or she would ever write anything in there about messing up, forgetting something, or pulling someone over based on a “hunch” that didn’t have any objective basis?

In Michigan, the correct name for what we commonly call a DUI is actually OWI, meaning “Operating While Intoxicated.” At their core, DUI cases are based on evidence. Michigan does have robust OWI laws, and an ever-growing body of case law interpreting them as well as how evidence should be obtained and analyzed. It goes without saying that when hiring a lawyer for a DUI case, you expect that he or she will be up to date on all the relevant laws and cases. Handling drinking and driving cases is something of a specialized practiced area, and keeping current on all the law and case rulings actually does take more time than most lawyer have, expect for those, like me, who essentially concentrate in this field.

test-300x255Beyond staying on top of the law in books and cases, though, my job, as a Michigan DUI lawyer (and the job of every lawyer, really, who takes on an OWI case) is to gather and carefully examine all the evidence. Important here is that ALL of the evidence must be examined. This includes everything, including how much a person drank, where, and when, to how he or she got pulled over or had the first police contact, what happened then (including his or her performance on any field sobriety tests), how the arrest took place, when and how a breath or blood test was taken, how it was analyzed, and ultimately, how those test results were calculated. This must be done carefully, and it must be done critically, meaning the lawyer needs to look for any flaws or problems with the evidence. In this article, I want to focus on getting and examining the evidence in a DUI case.

Everyone in the world knows that the police report is important, but it is only 1 piece, of many pieces, of the evidence in an OWI case. Over the course of my 27-plus years as a lawyer, I’ve had plenty of clients who already obtained a copy of their police report before ever coming to my office. That’s actually not necessary, because we’ll get it ourselves, but the point I’m driving at is that absolutely everybody understands the foundational role of the police report. Every lawyer, in every case, should get the police report, but that’s such a basic first step, it’s kind of like pointing out that you have to start a car before you can drive it. In other words, it’s a given. The police report can be a goldmine of information – or not. However accurate it is or isn’t, the police report is nothing more than the police side of what happened, told from the perspective of the officer who wrote it.

The Michigan Secretary of State (SOS) has been getting tougher on ignition interlock violation cases over the last several years. This is actually, real-world true, and not some exaggeration or mere throw-away line. In point of fact, the SOS has been become increasingly less tolerant of any failure to comply with the terms of a restricted license and/or to properly use an ignition interlock unit. To be sure, nothing is worse than drinking alcohol, but even being able to prove you did not is not enough to win a violation in many cases. In this article, I want to focus in on how violations and other “problems,” not charged as actual violations (and that don’t involve drinking), can still cause you to lose your license.

rules_do_donts-300x168A recent experience I had at a violation hearing serves as an excellent example to illustrate my point. My client, for whom I had originally won a license, was violated for missing several rolling retests (meaning that when his interlock unit requested a breath test he didn’t provide one) and for what is called “tamper/circumvent” (because the unit recorded that he had disconnected the interlock handset several times). Although he was  able to clear himself for both of those things, his revocation was upheld because, although not part of his formal violation, he also broke some other rules regarding his restricted license. This really gets to the point I’m trying to make here.

The interlock rules provide that if you miss even one rolling retest, it automatically causes a violation; same with disconnecting the handset, or really any part of the interlock device. A violation is a big deal, and begins with having your license revoked all over again. A notice is sent in the mail and you are informed that if you want to try and get your license back, you must file a written request for a hearing within 14 days, or else the re-revocation (this is technically called a “reinstatement of original action”) remains permanent. The interlock unit, of course, is ordered along with a restricted license, and there are rules governing what you can, cannot and must do regarding both the ignition interlock uint and the restricted license. Important rules. It’s a pretty big clue, for example, that it’s called a “restricted license,” because there are restrictions.

One of the most common questions I get as a Michigan DUI lawyer and driver’s license restoration attorney is if there is anything a person can do to get a restricted license after it gets revoked for a 2nd or 3rd (or subsequent) drunk driving conviction. Under Michigan law, a person’s license is revoked for a minimum of 1 year for 2 DUI’s within 7 years, and a minimum of 5 years if they’ve racked up 3 drunk driving convictions within 10 years. Although I usually go to great lengths to explain this, often several times, people almost always still ask, “is there some way for me to get a restricted license at least to go to work.” The answer, of course, is no.

194783f26f311100588f134509457090-300x300Almost without fail, the next thing I get asked is something like, “how am I supposed to keep my job?”, or “how do they expect me to support my family?” In this article, what I want to make clear is that the law not only “doesn’t care,” but it actually intends for this to hurt. In the grand scheme of things, the law is fashioned so that the hardship of not having a license is something that should have been considered before a person gets another DUI. One of the Michigan Secretary of State’s Administrative Hearing Section (AHS) hearing officers (these are the people who decide driver’s license restoration appeals) explains it, when people characterize their DUI record as “a mistake,” like this: “A mistake is when you date something using the last year, right after New Year. When you drove drunk, you committed a crime, and when you did it again, you became a habitual criminal.”

I fully understand that people don’t go out and intend to drive drunk, nor do they intend to endanger anyone when they do drive after having had too much to drink. For most people, a DUI is a genuine mistake in judgment, but, as that hearing officer points out, that mistake is also a crime. When a person gets a 2nd DUI, much less a 3rd, he or she is legally categorized as a habitual offender, and the law states that he or she is too great a risk to allow back on the road. The revocation of a person’s driver’s license is a safety measure for the public as much as it is a punishment for the driver. If it doesn’t hurt, then what good is it? In that sense, even though the written law has no mechanism to “feel” anything, and therefore cannot “care” whether something is good or bad, to the extent the people who wrote it thought about the effects of revoking a person’s license, you can be sure they wanted it to sting.

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