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One of the best things about my guarantee to win every Michigan driver’s license restoration and clearance case I take is that it’s good for the client, but it also serves me well because it prevents me from accepting a case that’s not ready to win. As much as I have written about the license restoration process, how things are done in my office, and even my guarantee, it only recently occurred to me that my guarantee is really a 2-way street, and that it protects me from making a mistake in accepting a case in the first place as much as it does from making one in any case I have already taken.

0a7b6d160fa485dc2a7f97449bf7e3c8-300x278Sure, it’s great for me to be able to boast that any potential client will only pay me once to get back on the road. Most people correctly understand that to mean that I make my money winning license appeals the first time around, not having to come back next year and do “warranty work.” This effectively removes the risk for anyone who hires me. But it’s not just the client who takes a risk in this transaction; I do, as well, because if I don’t succeed, my work load doubles, and my profit gets cut in half. The way I see it, this provides a great incentive for me to win the first time around, but to also make sure that I don’t accept a case that is not quite ready to succeed.  In a sense, it keeps me honest to both my client and myself.

If I didn’t have a guarantee that obligated me to stick with my client until he or she wins, it might be easier to persuade me to take a case that’s not so good. For example, while I am sympathetic to how badly some people need to be able to drive again, needing a license has nothing to do with being able to win it back. People will often express a sense of desperation about how much they need to be able to drive, and how much not having a license is holding them back. I feel for that.  Because of my guarantee, however, I will never get sucked into that kind of mess and file a license appeal unless I know the person can and will win it. As one of the Secretary of State hearing officer puts it, “everybody needs a license.”

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This article will be about the penalties for the various OWI (Operating While Intoxicated) offenses in Michigan. We’re first going to look at this from a “real world” perspective, because it’s CRITICALLY IMPORTANT to understand that there is a huge difference between the potential penalties for a DUI on paper and how they’re actually handed down in court. This may help the reader understand what I mean: only a few years ago, before fireworks became legal in Michigan, the law provided a potential penalty of 90 days in jail for blowing off a single firecracker, roman candle, or bottle rocket. Despite that having been the actual written law, nobody EVER went to jail for fireworks. At worst, a person would be given a ticket and required to pay a fine. The point is that there is a difference – often huge – between how things read (in theory) and how they work (in practice).

howI point this out because it’s typical for someone charged with a drunk driving to hop on the computer, do a little research (remember, “a little knowledge is a dangerous thing”), see the potential legal penalties for their charge, and then start freaking out. My goal here is to explain away those completely misinformed fears. We will, of course, post the potential penalties provided by law, but I urge the reader to take them with the proverbial grain of salt and remember the difference between how they read on paper versus how they are imposed in court.

Let’s start with jail, because that’s everyone’s biggest fear. I concentrate my DUI practice specifically in Oakland, Macomb and Wayne Counties, so what we’ll examine here applies to the Metro-Detroit, Tri-County area. No one goes to jail in a 1st offense DUI case, with the only possible exception being one Judge in Oakland County who often enough gives first-timers a few days in the cooler to think about things. In other words, although a 1st offense OWI is, technically speaking, punishable by up to 93 days in jail, there’s no point getting worked about something that’s NOT going to happen. I’m not going to go off on a tangent about “fear-based marketing,” but you should absolutely run away from lawyer or organization selling the idea that they’ll keep you out of jail in a 1st offense DUI. You’re not going, period.

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When it comes to driver’s license restoration and clearance cases, winning is everything. For my part, I guarantee to win every case I take, but despite that, lots of people still ask about my win percentage. As numbers go, my win percentage has always stayed right around 98%, but even at that, the lawyer in me cannot resist wanting to explain the other 2%…

– Like when some guy testifies at his hearing that he has been completely alcohol-free for about 5 years, and toy-car-vs-real-car-on-slope0-1-1then the hearing officer spins his computer monitor around and asks why he has pictures of himself and a few of his buddies on a boat from the previous summer, and they’re all drinking and holding beers in their hands.

– Or when a person with 8 or 9 DUI’s and who doesn’t have a ton of sober time asks me if we should wait to file, and I explain that we could wait forever, remaining stuck in what is called the “paralysis of analysis,” but since my guarantee means you’ll only pay me once to get back on the road, I suggest we go for it so that if we do lose early on, we’ll be all set for the next appeal.

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Everyone knows that a 3rd offense DUI is a big deal. In this short article, I want to go beyond most of the legal and technical stuff and examine one simple, but important aspect of these cases: the where factor. Here, in the Tri-County area of Oakland, Macomb and Wayne Counties, where you get a DUI has a huge impact on how your case will play out, especially if it’s a 3rd offense, felony charge. I have examined many other facets of 3rd offense cases in my other DUI articles on this blog, so our focus here will be on the importance of location of a 3rd offense case really is, especially when we’re comparing Oakland, Macomb and Wayne Counties, where I practice. To be sure, this is a deep subject, and it would be easy to do a many page, multi-part summary, but that’s exactly what we’re NOT going to do.

map-small-300x245In order to really appreciate the influence of geography on 3rd offense drunk driving charges, we first need to sort out a few things. There is a general notion that of the 3 local counties, Oakland County is the “toughest,” Wayne the most lenient, and Macomb, somewhere in-between. There is some truth to this, but it’s not entirely accurate, particularly as it applies to 3rd offense drunk driving cases. As a DUI lawyer who specifically concentrates his representation in Oakland, Macomb and Wayne Counties, these differences are important to me every single workday. Any notion of which place is tougher versus more lenient must really account for 2 key factors that underlie every DUI case (and every criminal charge, for that matter): the prosecutor and the Judge.

If you’re familiar with the greater Detroit area, then you know there is a kind of unique “vibe” to each of the 3 counties. This “vibe” is reflected in the bench of each county, meaning the aggregate of its sitting Judges. This can become something of a chicken or the egg debate, but what really matters is that, as a group, the Judges in any particular county are largely a reflection of that county. The county prosecutor, however, is also a key player in all this. Whereas each of the local counties is made up of numerous district and circuit Judges, every county has only 1 elected prosecutor, and that person determines all the policies for how things are done and what kind of breaks (or not) can be given in all criminal cases. The interplay of these 2 factors – the Judge and the prosecutor – has everything to do with what ultimately happens to anyone facing a state-charged DUI. All 2nd and 3rd offense DUI’s are brought by the state, and, depending on the arresting agency (like the Michigan State Police), some 1st offense charges are state cases, as well. Thus, it will ALWAYS be the county prosecutor behind 3rd offense, felony charges.

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In part 1 of this article, we began looking at some of the more important facets of the substance use evaluation relative to it’s role in a Michigan driver’s license restoration or clearance case.  I pointed out that a license appeal must be denied if the evaluation’s prognosis is either “poor,” “guarded” or “fair,” and noted that a “good” prognosis is almost always better than “excellent.”  We then moved on to explore the role of the evaluator, observing that the evaluator must be honest, good and thorough.  The lawyer must be all those things, as well.  Although I don’t actually complete it, I have an important role in the substance use evaluation, as well.

6a00e0099631d0883301b8d2b85c78970c-800wi-150x150For my part, I meet with every client for a first 3-hour meeting before they have their evaluation completed, and I fill out a form of my own creation called a “substance abuse evaluation checklist” that covers everything the evaluator must and should go over.  This form is probably somewhat redundant when presented to an evaluator as good as mine, but it’s that attention to detail that’s part of how and why I guarantee to win every case I take.  The key requirement for me to take a case is that a person must have honestly quit drinking; this sobriety requirement is non-negotiable with either me or the state.  From there, everything must be done right, and I make sure it is.

In a very real way, “preparing” a client for the substance use evaluation means sketching out his or her recovery story.  No matter how you cut it, there is a story behind every person’s decision to get sober and transformation from drinker to non-drinker.  Few people have probably ever thought of it in this way, so my job is to pull out all the details.  No one quits drinking because it’s working out so well.  What was the real motivation to stop?  How did you make it work?  Right after a person decides to become alcohol-free, there tends to be a void in his or her life, or at least social life.  Weekends spent drinking or hanging out with the drinking friends are gone; what did you do, in place of that?  Inevitably, you will start doing different things, and grow as a person.  For most people, getting sober means regaining the trust and respect of those who really matter.

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The substance use evaluation is really the foundation of a Michigan driver’s license restoration or clearance appeal.  At its most basic, it is supposed to be an objective, clinical examination of a person’s alcohol and drug use history and an assessment of the person’s current relationship to those substances, followed by a prognosis of the likelihood that the person will be able to remain clean and sober.  Ultimately, that prognosis is seen as a kind of prediction about the person remaining alcohol and/or drug-free.

downloadThe prognosis is provided within its own section of the substance use evaluation form, and the evaluator must check a box indicating that it is either “poor,” “guarded,” “fair,” “good,” or “excellent.”  By rule, a license appeal must be denied if the prognosis is either “poor,” “guarded” or “fair.”  In other words, you can only win if your prognosis is either “good” or “excellent.”  It seems natural to think, then, that “excellent” would be the best prognosis you could get, but that’s actually not correct.  In this article, I want to examine some of the more important aspects of the evaluation, including how and why a “good” prognosis is almost always better than “excellent.”

This is kind of an extension of the idea that “more is better.”  After all, an “excellent” prognosis certainly seems better than one that is just “good.”  In the broader context of recovery, however, and within the more limited scope of a license appeal, the prognosis of “excellent” is reserved for a special few people.  For example, some old guy with 28 years of sobriety, who has been attending AA at least twice a week for all that time, has outlived his first sponsor, has 3 sponsees of his own, has been the treasurer of his home group for the last 15 years and who runs the annual 4th step retreat is a candidate for an “excellent” prognosis, while for just about everyone else, “good” is more appropriate.  Key here is that a “good” prognosis is more than good enough to win your license appeal, and, in its own right, is an excellent thing to have on your evaluation.

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In part 1 of this article, we began to examine 2nd offense DUI cases in Oakland, Macomb and Wayne Counties. I made clear that the law presumes a 2nd offender has a drinking problem, and that the court system, based upon its daily experience, begins each case having already reached the same conclusion, as well. Michigan law also requires that any person convicted of a 2nd DUI within 7 years must be ordered to undergo counseling. The law doesn’t further specify that it should or must be counseling that’s a good fit, or that’s “right for you,” or anything like that. Many courts, in assembly-line fashion, simply jam everyone through the nearest local counseling operation that is only too happy to take on all the business it can get. This kind of “one-size-fits-all” approach may work for a few people, but it’s far from a recipe for success in any larger sense. Moreover, when you force somebody into any kind of counseling or treatment that isn’t right for them, it only makes them become defensive and resistant to any examination of their relationship to alcohol. In other words, it doesn’t just “not help,” it’s counter-productive. An important part of my job is to help my clients avoid being treated this way and insure that they find the kind of counseling that works for them, even if they’re not happy about having to go in the first place.

stressed-man-282x300The whole counseling thing is a deep subject in its own right, but rather than go off on a multi page examination of matching a person with the right kind of counseling or treatment method, suffice it to say here that my clinical training and my practical experience as a DUI lawyer combines so that I know how to explore this subject with my client in the office, while helping and protecting him or her in the courtroom. Someone can have all the clinical education in the world, but not know how to explain and say things in a way that will persuade a Judge (that, by the way, is why I limit my practice to the courts of Oakland, Macomb and Wayne Counties – so that I get in front of the same Judges day after day and know what will work, and what won’t, in front of each). By contrast, as well-spoken as any lawyer can be, to change a Judge’s mind, you have to provide both facts and viable alternative solutions. A lawyer may be right, but you can’t merely tell a Judge something like, “that won’t work,” or “that’s not the right solution” without explaining why and offering a better idea.

Let’s back up a step here. We’ve made clear that there is a legal presumption that all second offenders have some kind of drinking problem, but that’s kind of like saying that they all own dogs, too; both dogs and drinking problems come in all shapes and sizes. One of my goals is to help both the client and the Judge understand that the larger notion of “drinking problem” includes everyone from hardcore, everyday-drinking alcoholics, to people who don’t drink very often, but who sometimes don’t know when to stop at the appropriate time. In other words, someone who is just beginning to struggle with his or her relationship to alcohol is NOT in the same boat as someone who has been a heavy, daily drinker for decades. To be sure, they both present risks, although of very different magnitudes.

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Although a second offense DUI charge is NOT the end of the world, it is a big enough deal. The key thing about a 2nd offense DUI is that it really “levels up” from a first offense, which is often seen (or at least to the extent possible, should have been made out) as an out-of-character mistake that won’t happen again. The harsh reality here is that in a 2nd DUI offense case, jail become a much more realistic possibility. Sure, it can be avoided in many, if not most, cases, and can be strategically minimized in every other case, but you certainly don’t need a lawyer to tell you what you already know in your gut; this is a serious situation. In this 2-part article, I want to examine some of the more important aspects of 2nd offense OWI charges, because there is much more to them beyond the mere threat of jail. Even in those cases where someone is going to have to do a little time, they’re also looking at following that up with a much longer and far more demanding term of probation. The goal, therefore, in a 2nd offense DUI case is minimize all of that and do real damage control.

222-300x262Let’s get the jail stuff out of the way first, because that’s everyone’s biggest concern. There are many courts here, in the local, Detroit area where jail can be completely avoided in a 2nd offense case, and some where it may be on the table as a possibility, rather than a probability. In addition, there are also a few Judges here who will almost always hand out at least a few days to any and every second offender. With every last drop of integrity I have a human being, let me be perfectly clear about this: anyone who says anything different is either lying or not experienced enough to properly handle a 2nd offense drunk driving charge anywhere in Oakland, Macomb or Wayne Counties. In either case, you should run like hell. Here’s where a reader looking to hire a DUI lawyer needs to exercise some good consumer skills and pay attention to how things are said, because it’s easy for lawyers to dance around this question and not answer it directly, or to address it deceptively by saying something like “jail is never a certainty in a 2nd offense case.” Nothing in life is really a “certainty,” but in the immediate context of your DUI case, we’re far more interested in specifics like “yes,” “no,” “always,” “never,” “likely” and “usually.“

My job, in every case, is to avoid jail completely when that can be done, and to absolutely minimize it when that’s not possible, and I’m exceptionally good at that. However, in my own life, I’m not the kind of person who simply wants to be told what I want to hear rather than the straight up truth, and I cannot imagine doing that to anyone else. Not to brag (okay, maybe to brag a little), but when it comes to writing articles like this, I have no match. I have written more good, informational articles (over 860, as of this writing) about DUI and driver’s license restoration cases than just about everyone else combined, and in the course of doing so, have really honed my communication skills. If I simply wanted to hook people in by making things sound all rosy and telling them what they want to hear, I could easily do so. There’s a lot of money to be made by doing that, because no matter what, people are drawn to what they want to hear, but that’s not who I am. My integrity is not for sale, but my skills are: if anyone can keep you out of jail in a local 2nd offense case, it’s me. Even in those cases that wind up in front of a Judge (like the one that puts most 1st offenders in jail) who is determined to give a little “reflection time,” no one is better than me at keeping that to the absolute minimum. That’s easy enough to say, but let me explain the how and why of it…

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Most of the DUI cases I handle are in Oakland County. Because I am a local, Detroit area DUI lawyer, that’s not surprising. In this article, I want to examine OWI charges in the district courts of Oakland County, and some of the things that are different here when compared to Macomb and Wayne Counties. This is the kind of subject that could be examined to death, so I’ll focus on the major points to keep this installment short. The courts of Oakland County have a reputation for being “tougher,” and in general, that’s a fair assessment. I point this out first, not because I want to bash Oakland County (it’s where I live), but rather because it is the most significant and talked about facet of cases here. In fact, because my practice takes me in and out of all the local courts, I am in a great position to compare and contrast how things are done within the different sectors of the larger, Tri-County area.

192_670-300x241It’s probably fair to define a DUI lawyer by virtue of where most of his or her cases are handled. On average, I handle about 5 or 6 local DUI cases each week, along with another 6 or 7 driver’s license restoration appeals (the result of multiple DUI convictions). Most weeks, I spend more time in the district courts of Oakland County than I do in the courts of both Macomb and Wayne Counties combined. Although I would prefer to be identified by a more inclusive term like “Detroit-area DUI lawyer,” if I had to pick a description with just one locale, it would be Oakland County DUI lawyer. What’s important about that is that it means, as it should, that I know how things are done here. I know how the Judges operate, the things that will and won’t fly with each, and what kind of ideas will cause some of them to lose patience.

In many of my DUI articles, I write about the importance of hiring a “local” lawyer. That doesn’t necessarily mean some lawyer whose office is down the block from the courthouse, but it does mean, at least here, one from the Tri-County, greater-Detroit area. I have no idea, for example, how things are done in Lansing or Grand Rapids. Even if I did take DUI cases from that far away, how many times do you think I’d be called on to go there? How much experience would I have in those courts that I could use to actually help someone make things better? It is always important that a lawyer be in a position to sell experience to his or her clients, rather than the client wind up paying what amounts to tuition for the lawyer to learn how things are done in some distant court. Because I confine my criminal and DUI practice to the courts of Oakland, Wayne and Macomb Counties, giving me extensive experience in these same courts day-in and day-out, week after week, I actually do sell experience rather than collect tuition.

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Driver’s license appeals are intended to be hard to win. The Michigan Secretary of State has very strict standards for returning driver’s licenses. To be clear, this process has nothing to do with how much you may need a license, how long you’ve been without one, or that you haven’t been in any kind of trouble for a long time. Although this is a deep subject, the simplest way to put it is that the state wants to make sure that no one who loses his or her license for multiple DUI’s gets back on the road until they can show that they won’t drink anymore. Ever. Whatever else, people who don’t drink alcohol aren’t any risk to drink and drive again, so the line in the sand has been drawn there, meaning a person must demonstrate, by what is defined as “clear and convincing evidence,” that he or she has quit drinking and is likely to remain alcohol-free in order to have any chance of winning his or her license back. The whole license appeal process involves what I call “a million little rules,” but for all of that, timing is everything, and if you file your case too soon, you’ll run straight into a denial.

download-300x275 You must have enough sober time under your belt to win a license restoration or clearance case. Under the main rule (Rule 13) governing license appeals, a person must have at least 6 months of complete abstinence from alcohol to even be in the ballpark, legally speaking, to win his or her license back, BUT, and this is huge, the same rule specifically provides that the hearing officer may require at least (meaning more than) 12 months abstinence in just about any and every case. In the real world, you will always need more than a year of sobriety to have any chance of getting your license back. I guarantee to win every license appeal case I take, and in my practice, I generally want at least 18 months of genuine sobriety before I’ll let any of my clients sit for a hearing. And for all of that, I like it better when someone has even more clean time.

Not having enough sober time is a sure way to lose a license appeal. So how much is enough? You’re going to love this typical lawyer answer: it depends. Indeed, one of the reasons I can claim the title “driver license restoration lawyer” is that I can look at all the factors of a person’s situation and just “know” how much sober time is enough in any given case.  Let me explain that with a few examples:

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