In our roles as Michigan DUI lawyers, we handle a lot of 3rd offense OWI cases. It’s a given that a felony DUI charge is serious, but it doesn’t have to be anything like the end of a person’s world, especially if it’s handled skillfully. As I often point out, success in a DUI case is best measured by what does NOT happen to you, and that’s particularly true when facing a 3rd offense charge. In fact, when properly handled, a 3rd offense DUI can be worked out a lot better than the reader might think, and many, if not most, of the scary sounding potential consequences can be avoided.

SHOjoijoioihoih-300x276Obviously, the first goal in any DUI case is to find some way to get out of it, but drunk driving charges don’t dismiss themselves. Instead, a lawyer has to work every angle to discover something that can be leveraged to either get the charges knocked out of court, or used to in order to force a better outcome. That’s not a bunch of meaningless talk, either, at least when real effort is actually put into a case. As one of my favorite lyrics observes, “Good work is the key to good fortune; winners take that praise – losers seldom take that blame.”

That sentiment is completely applicable when it comes to handling DUI cases, and even more so in a 3rd offense situation. Experience teaches that when a Michigan DUI lawyer examines the evidence in a case and looks for something to challenge, there are certain places where he or she is more likely to find it than others: The traffic stop has always been one of the best areas for that. The day before I began this article, the Michigan Court of Appeals published an opinion holding a DUI traffic stop unlawful, and that case really shows the value of a lawyer’s good work, and what “proper handling” can do.

In the world of Michigan DUI and driver’s license restoration cases, this blog is the biggest ongoing resource to be found anywhere. Recently, while trying to do some online legal research, I discovered that a lot of the articles I put up here get “borrowed,” and a sort of cannibalized version of many of them can be found in other places. For as much “borrowing” as has been done from my articles, I know that nobody is going to copy any part of this article about some largely and otherwise ignored truths about DUI and driver’s license restoration cases.

vectorstock_23731855-300x254It is said that “imitation is the sincerest form of flattery,” so I’m kind of flattered, in a sense, that other lawyers use my blog posts for their ideas. However, I do put a lot of effort into the analysis that goes into some of these installments, and I wonder if I should be mad at the fact that most of the copy-cat versions that I ran across edited much of that out, and thereby really amount to little more than “cheap knock-off” versions, or whether I’d be even madder if someone did try to pass off my analysis and reasoning as his or her own.

To be sure, nobody can claim any kind of copyright or proprietary interest in legal strategy, but it is kind of mind-blowing to find one’s own ideas put on another person’s blog, or site, as if it’s that person’s original thought. For example, I have put up quite a few articles that were “numbered,” in the sense that they would have titles like, “4 things to look out for….” or “The top 3 things…” and then get into an enumerated discussion of that topic. Imagine my surprise to find quite a few reconstituted versions of those pieces on other blogs and sites.

As Michigan DUI lawyers, one of the most common questions that we get asked is about having a DUI conviction “come off” a person’s record. Up until now, that was not legally possible, but a recent and long overdue amendment to the law will soon change that. The new law will allow someone convicted of a single DUI to request to have that conviction set aside, but it does not make an expungement automatic. Instead, a person will have to wait 5 years from the time his or her probation ends to apply for the expungement, and then the decision whether to grant it or not is up to the Judge.

eesezzz-289x300Key here is that the new amendment will require that a person formally file for the removal of a DUI conviction, making this different from other sections of the expungement law, which provide for the automatic set-aside of certain offenses after a specified time period. For all the publicity that has surrounded the newly-crafted legal provision allowing a DUI conviction to be set aside, the fact that such relief is NOT automatic has been almost completely overlooked. This is a huge omission, because there’s more to getting rid of a prior DUI conviction than just filing an application; a person basically has to earn it.

The new language added to the law requires a person to file a formal request to have a DUI conviction expunged, and specifies that the Judge must consider certain factors in deciding whether to approve or deny it. These factors are important, not only for anyone who already has a single DUI on his or her record they want taken off, but also, from this point forward, for anyone who gets charged with a 1st offense DUI and will ever even  consider seeking to have it removed from his or her criminal record down the road.

I have written a number of previous articles about the joy of winning a Michigan driver’s license restoration case and getting back on the road, and the incomparable job satisfaction my team and I get in helping people do that. Of course, this is how we earn our livings, but, at least in the legal world, I can’t imagine that any other practice area that gets the kind of heartfelt “thank you’s” we get. Our clients are people who have worked hard to get sober, and have really earned back the privilege to drive again. This article was inspired by one such recent experience.

3-300x275The picture you see here is of our actual client, who sent it along with his “thank you” email, and told us to use it on our site or blog (I obscured the company logo on the side of his truck). With the exception of one sentence I took out about him having posting posted a positive review of our firm, what follows are the exact words from that email: “I am so happy and grateful for your law firm! You guys did an amazing job on my case and I am already on the road and driving! Thank you for everything, this is just the beginning of my journey in my new life and I appreciate your efforts!”

As I do with many clients who express their gratitude, I reminded him that, while we appreciate his kind words, there is a lot to winning a license appeal, and even though my team and I did our part, he did all the “heavy lifting” by getting sober in the first place. Although we do get plenty of “thank you’s,” some thank you cards, and even gifts (like flowers for the staff) from happy clients who have had their driving privileges reinstated, this is the first time someone has actually sent a picture of themselves. This one really captures our client’s happiness at having won his case.

To win a Michigan driver’s license restoration or clearance case, a person must prove certain legal issues by what the law specifies as “clear and convincing evidence.” In this article, I want to explain, in plain English, what that really means. In addition, I want to show why so many people who try a “do-it-yourself” license appeal, or who hire some lawyer who claims to “do” license appeals as part of a much broader practice, wind up losing precisely because they don’t understand how the proof by “clear and convincing evidence” requirement is actually applied in these cases.

lll-300x281The main rule governing driver’s license restorations begins by stating that “The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:” (emphasis added). This can (and, indeed, does) get tricky, because what “clear and convincing evidence” actually means in the context of a driver’s license appeal case is a lot like what it sounds like. A lot – but not completely so – and that’s a very important part of what we’ll be examining in this piece.

A little legal research will quickly reveal that “clear and convincing” is the highest civil standard of proof, while “proof beyond a reasonable doubt” is the highest criminal standard of proof. It’s easy to understand a civil versus a criminal situation this way: If a person is facing a criminal charge that carries a potential jail or prison sentence, then the criminal standard of “proof beyond a reasonable doubt” applies. In every other setting – meaning in any case where jail isn’t a possibility – its a civil standard of proof that applies

In part 1 of this article, we began looking at how and why 2nd and 3rd offense Michigan DUI charges are so much more serious than 1st offense DUI charges. We began by noting that the overwhelming majority of DUI offenders fall well outside any notion of being a “criminal,” even though drunk driving is a criminal offense. In addition, we saw that there is no class or group of people who are exempt from getting caught driving over the limit. In that sense, a DUI often represents a the textbook example of a good person finding him or her self in a bad situation.

jkjkkjkjkj-300x268The whole experience of a 1st offense DUI is legally structured to be expensive and otherwise unpleasant in such a way as to strongly deter someone from a repeat performance. In addition, under Michigan law, anyone convicted of a 2nd of 3rd offense DUI is automatically categorized as a “habitual alcohol offender,” is presumed to have a drinking problem, and will have his or her driver’s license revoked as a result. This means that anyone showing up in court for a 2nd or 3rd offense DUI can’t explain away their situation as just “bad luck.”

This is a critical reality that the DUI lawyer and client must either acknowledge and plan around, or else get crushed by, as they go through the case. This is basic stuff, but it is really important, as well. It may help the reader understand all of this better by trying to put him or her self in a Judge’s position for a moment as he or she looks over the bench at any 2nd or 3rd time DUI offender: Is the person standing before me some bad actor who just doesn’t give a $hit about the law, and who has no respect for it, or, instead, is he or she some poor soul who has a drinking problem?

In our roles as Michigan DUI lawyers, we handle the entire range of drunk driving charges, from 1st and 2nd offense misdemeanors all the way to 3rd offense, felony cases. Although everyone “knows,” as a matter of instinct, that a 2nd offense is more serious than a 1st offense, and that, in turn, a 3rd offense is more serious than a 2nd offense, it’s important to understand why this is true. In this article, and without using any fear tactics, I want to look at 2nd and 3rd offense DUI charges in a way that will help anyone facing either of them to better appreciate his or her situation.

mnmnmnmnmnmn-266x300In Michigan, what we commonly call “DUI” is legally known as “OWI,” short for “Operating While Intoxicated.” It is a criminal traffic offense, meaning that it is both a criminal offense, and a traffic offense. Consequently, a DUI conviction will go onto both a person’s criminal record and his or her driving record. Despite a number of recent changes to he state’s expungement law, a conviction for a 2nd or 3rd offense DUI charge will go on (and stay on) both a person’s criminal and driving records, and neither of them can ever be set aside. This stands in stark contrast to the recently legislated ability to remove a 1st offense OWI conviction, under certain conditions, from a person’s criminal record.

Everyone understands that criminal and traffic offenses can range from relatively minor to extremely serious. For example, a ticket for speeding 5 mph over the limit is qualitatively different than one for 30 mph over the limit, just like a misdemeanor charge of disorderly person is a world apart from a felony murder charge. One key thing about Michigan DUI charges – unless they involve death or an injury to another – is that the level of severity is basically measured by whether or not a person has any prior OWI convictions, and, if so, how many.

In a recent article, I pointed out that even after being advised about the law and how things work in Michigan DUI and driver’s license restoration cases, many people will try to explain why they should be on the receiving end of some kind of special exception, often responding by saying, “yeah, but…” I noted that, in our office, that phenomenon has become known as “yabut,” which is our homemade term used to describe somebody who, like when facing a DUI charge, wonders if there is some way for him or her to get out of what everyone else has to do.

crxrxrxrx-300x277In the context of license restoration appeals, some “yabut” people just need help to understand that the rules regarding driver’s license appeals don’t have any flexibility to provide an exception based upon their individual circumstances. Most of them will ultimately accept what they’re told, even if somewhat begrudgingly. There is a rougher side, to this, however, and it’s something that, as Michigan driver’s license restoration lawyers, we hear from some people, who, even after being told how the law works, impatiently respond by saying, “That’s bull$hit!”

One thing my team and I have learned over the years is that the people who are so hell-bent on having things their own way are almost never candidates with any real chance win a license appeal case in the first place. The key requirement to win a license appeal is proving one’s sobriety, and sober people have a certain calm and humility about them that can’t be missed. By contrast, the kind of attitude that compels a person to bark out something like “this is bull$hit” to someone trying to explain things to them is very much the opposite of how sober people think and act.

A Michigan DUI case is comprised of 3 distinct phases, and each of them will feel very different to anyone going through the process. Every case begins with the investigative and arrest phase, and then moves on to the court phase, and finally, the post-court (probation) phase. As Michigan DUI lawyers, most of what we do takes place in the court phase, but the point I want to make in this article is that the focus there needs to first be directed backwards, at the investigative and arrest phase, and what happened there, and then directed forward, through the post-court (probation) phase, to make sure that, when all is said and done, the client has the easiest time possible.

ytrytytrytr2-300x264This may sound logical, but in a DUI case, it’s important to remember that everything done at the court phase has to take into account how and why the client got there in the first place, and what can be done to avoid and/or minimize all the consequences that will follow. Because the lawyer wasn’t there at the time of the arrest, that only makes it all the more important for him or her to thoroughly investigate all the circumstances surrounding it. When a DUI charge lands on a lawyer’s desk, he or she needs to start digging and question everything about it.

Even in a case where the traffic stop and/or initial police contact is legally solid, the police may have made some mistake(s) or other in the the way the evidence was gathered (like how the field sobriety tests were conducted, for example) that can be strategically used to drive a better outcome. Any problems with the traffic stop, or what followed, can only be found if a lawyer is diligent and makes it a point to thoroughly explore the investigative and arrest phase of a case.

Anyone considering a potential driver’s license restoration or out-of-state clearance appeal will invariably start looking online for information. In our roles as Michigan driver’s license restoration lawyers, one of things that clearly separates my team and I from everyone else is the sheer amount of it that we put up on this blog, and on our website. Within the more than 600 driver’s license restoration articles published to date, I have examined every aspect of the license appeal process, often in granular detail. In this piece, I want to bring all of that full-circle and look at what ties it all together.

llklkllklkllklklklklklkl-1-281x300As anyone will quickly discover, there are numerous steps involved in the driver’s license restoration process: A person can’t win back his or her license without a hearing, and a hearing can’t be scheduled until all of the required documents have been filed, and they can’t be filed until a person has undergone a substance use evaluation and had his or her letters of support written, and none of that can take place until he or she first decides to undertake a license appeal in the first place. While each of those stages are connected, there is also a larger element at work, and understanding how it affects the big picture will help everything make more sense.

Of course, it’s best to start at the beginning: A license appeal becomes necessary when a person has had his or her driving privileges revoked as the result of multiple DUI convictions. Under Michigan law, anyone who racks up 2 DUI’s within 7 years or 3 within 10 years is categorized as a “habitual alcohol offender.” One of the legal consequences is that any such person is legally presumed to have an alcohol problem, and can’t get his or her license back until they file – and then win – a formal driver’s license restoration or clearance appeal.

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