Articles Posted in Drug Crimes

In part 1 of this article, I began my examination of the role of alcohol and substance abuse related issues in Michigan criminal, DUI and driver’s license restoration cases, and how my specialized background, which includes having completed a post-graduate program of addictions studies, makes my office different.  I pointed out that I balance my overriding mission to help people at all phases of their relationship to substances, but to never become “preachy” or seemingly fixated.  We looked at how alcohol and drug issues are interwoven into the vast majority of criminal cases, and of course, all DUI charges and possession cases.  I cautioned that, as much as I want to help people recognize and deal with substance abuse related issues, there are plenty of situations where I use my clinical knowledge to prevent a person from being perceived as having an alcohol or drug problem they don’t.  This is especially relevant in 1st offense DUI cases, where a drunk driving incident that just happens runs up against the court’s inherent “alcohol bias.”  In this second installment, we’ll turn our focus more to recovery, and how a deep knowledge of recovery and recovery processes is important to the win I guarantee in every driver’s license restoration case I take, and how all of these considerations kind of coalesce in criminal cases.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/drug-addiction-spiritual-recovery-1.1-289x300.jpgIn the context of a Michigan driver’s license restoration case, understanding recovery is everything.  A person must prove his or her case by what is called “clear and convincing evidence” (this is a high standard of proof; think of it as requiring, in part, that after the evidence in a case is presented, the hearing officer deciding it will not be left with any lingering or unanswered questions).  There are 2 primary things a person must show:  First, the person must demonstrate that his or her alcohol (and/or substance abuse) problem is “under control,” meaning that he or she can fix a sobriety date (this doesn’t have to be an exact date; someone might say, for example, “early fall of 2009,” or something like that), and second, that his or her alcohol (and/or substance abuse) problem is “likely to remain under control.”  This means that the person can show that he or she is a safe bet to never drink (and/or use) again, and has cultivated the commitment and the tools to remain sober.  This is complicated stuff, as anyone who has tried a license appeal before and lost knows all too well, particularly if the person was genuinely sober.

That I really understand recover from the inside-out, the outside-in, and from all the clinical perspectives, as well, provides me with a huge advantage as a license restoration lawyer.  So much so, in fact, that I guarantee to win every case I take.  The catch?  I will only take a case for someone who is truly sober.  As far as I know, I’m the only lawyer who writes anything at all about sobriety, and I am completely certain that amongst every other lawyer out there, I have written more about sobriety than all of them combined – and HUNDREDS of times over, at that.  The job of the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers is more or less to “test” whether a person is sober or not, and they are very knowledgeable and do their best to examine the clinical information provided in a license appeal case through the lens of the legal requirements that must be met in order to win.  It is the lawyer’s job to make sure that the clinical evidence submitted meets those legal standards.  That task is a HELL of a lot easier when, as the lawyer, I fully grasp the clinical and practical realities involved in getting sober.  For everything that could be said here, the bottom line is this:  If you’re sober, then you know that sobriety is a journey, and not a destination.

The other day, my paralegal, Ashlee, told me of a conversation he had with a caller who had gotten into trouble because of a relapse after having been clean and sober for a number of years.  She smiled as she recalled telling the caller, “Well, you certainly called the right place with us because we kind of specialize in substance abuse matters.”  I nodded in agreement, but as I began to think about it later, realized how accurate Ashlee’s statement really was.  Every single day, for almost all of the day, my staff and I deal with issues related to drinking and drugs in criminal, DUI and driver’s license restoration cases.  These issues are so central to what I do (more on that in a bit) that a number of years ago, I returned to the University campus (no online classes for me) and completed a post-graduate program of addiction studies.  Between handling DUI cases and driver’s license restoration appeals, issues directly related to the development, diagnosis, treatment of and recovery from alcohol and/or drug use disorders are at the core of everything I do.  In this 2-part article, I want to look at the critical importance of understanding substance abuse issues in the context of DUI (OWI) and driver’s license restoration cases, and in certain other criminal cases, as well.

In a 1st offense DUI case, for example, I use my clinical https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2017/01/SA1.1.jpgtraining to prevent a person who does not have a drinking problem from getting caught up in the court system’s inherent “alcohol bias” and wind up being treated like he or she does.  This means I work to prevent them from getting ordered into unnecessary substance abuse counseling, education and/or treatment.  By contrast, when a person with a 2nd offense DUI tries to explain, as many 2nd offenders do, that no matter how bad things look and how much the court system will “think so,” he or she doesn’t have a drinking problem, I have to make clear that, by law, that every 2nd offender is required to complete some kind of counseling.  I must also make clear that, clinically speaking, no matter how much the person does or does not drink, just by their record alone, there is obviously some kind of risky relationship to alcohol.  I have to help my client see that, at this point, labels don’t really matter anymore.  I deal with it all, from 1st time DUI offenders who quite obviously have a serious drinking problem to 2nd offenders who do not, and really are just unlucky, The same holds true for certain criminal charges, and particularly drug and even marijuana possession cases.

The court system is not (and does not have the resources to be) very nuanced or subtle about a person’s relationship to alcohol, operating instead from the position that, if you’re facing a DUI, you probably have some kind of drinking problem.  Lawyers typically line up to make their money by agreeing with and never challenging a client who say, “not me.”  From a business point of view, the customer is always right, so if a client with multiple prior DUI’s calls in and is looking for a lawyer who will echo that he or she doesn’t have problem, it’s a temptation that’s hard for many to resist.  After all, money talks and BS walks, right?  On the flip side, however, nobody really wants to hire some lawyer who thinks he or she is Ms. Sobriety or Mr. Rehab, either, and won’t fight to protect them.  Where, then, is the balance?  I think it’s fair to say that if we are going to be honest here, we need to acknowledge that a lot of the trouble people get into, especially those that result in DUI, criminal or drug possession charges, are the result of poor decisions made after drinking or using.  Imagine if you asked a law-abiding, non-drug using person, “Would you mind keeping these  Vicodin pills (or this cocaine, or whatever) in your pocket while as we drive around?”  They’d look at you like your nuts – but to a drug user, having them in their pocket as they travel around in a car doesn’t seem like such a stupid idea.  The point I’m making is that the court system doesn’t have it completely wrong about alcohol and drug problems and how they “ride in” with various cases, but that same system doesn’t always get it right, either.  Not every DUI driver has a drinking problem.  The lawyer must find the right balance between these seemingly competing positions in order to produce the best outcome possible for the client.  Here’s what I mean…

In part 2 of this article, we continued our inquiry into probation violation cases in Michigan criminal and DUI cases.  In particular, we tried to see how the whole violation thing is perceived by the Judge who sentenced you for a drunk driving offense or something like a drug (including marijuana) crime.  We also noted that although positive test results are the most common reason for being violated, missed tests come in a reasonable close second, with false-positive results a distant third.  Here, in our 3rd and final part, we’ll go into the courtroom itself and see how it is proven that a person has violated his or her probation and how that plays out in front of the Judge.

Decorative Scales of Justice in the CourtroomUp to this point, we’ve looked at the 3 most common reasons that give rise to a probation violation:  A positive result, a missed test, and a false-positive result.  Now, let’s look at how these are handled in court and what must be shown to prove that there was, in fact, a violation.  That “showing” is technically called the “standard of proof.”  Everyone knows that if you’re accused of a crime and go to trial, the prosecutor must prove your guilt beyond a reasonable doubt.  A probation violation is proven by a much lower standard, called a “preponderance of the evidence.”  The most common way this is explained is to imagine the scales of justice sitting even, or level.  As soon as you put something on one tray, it goes down and the empty side goes up.  Now, if you put something of equal weight in the other tray, the scales go back to even and level.  If you put something that weighs just a little more on one side than you do on the other, then the heavier side falls farther down, and the lighter side remains higher.  Surely you get this.  A preponderance of the evidence means just enough evidence to tip the scales from being exactly even, one way or the other.

Let’s consider an example:  Assume that Sneaking Sam has missed a test.  Now, picture the Judge on the bench, with the scales of justice next to her, and they’re level (even).  She looks at Sam and says, “I have a notice that you missed a test last week, Sam.” She then grabs a 5-pound weight and puts it on one of the scales, causing it to tip.  So far, the preponderance of the evidence weighs in favor of Sam having missed his test.  Next, the Judge asks what Sam has to say, and his lawyer explains that Sam’s boss called him in early the day of the missed test because there had been a flood at the workplace, and hands up a letter from the boss to that effect.  The lawyer also offers up a make-up EtG test taken the next day.  The Judge then takes a 2-pound weight for the letter and a 2-pound weight for the make-up test and puts them on the other scale, causing the missed test side to rise.  Still, the scale hangs a bit lower on the side of the missed test.  That’s because the preponderance (think of it as the majority) of the evidence supports the idea that Sam did, in fact, miss his test.  Sure, he has a relatively good reason for doing so and it’s true that he has a clean make-up test, but in terms of the simple allegation that he missed the test, Sam’s evidence does not outweigh that on the “missed” side.

In part 1 of this article about Michigan probation violations, specifically in the Detroit-area district and circuit courts of Wayne, Oakland and Macomb Counties, we began examining what happens when a person who is on probation for a criminal or DUI case either tests positive or misses a test altogether.  I pointed out that to the Judge, a violation of his or her order to not drink (and/or not use drugs) by either a positive or missed test can feel like either getting the middle finger from the person to whom a break was given.  The only other alternative to “screw you, Judge,” is that the person is suffering from an overwhelming and irresistible compulsion to drink (or smoke weed or whatever).  As we noted, however it plays out, a missed or positive test does not look good.  I certainly understand that people who do have a drink (and get caught) are not, for the most part, trying to “flip off” the Judge, nor are they caving into cravings of some sort, but rather just want to be normal, like everyone else.  An order to not drink, however, must also be seen as a part of one’s punishment for the original offense, and a missed test, even if it is followed by a clean make-up test (or there is a “good” explanation for missing the test) is a violation of the requirement that a person test when directed, on the schedule ordered, and not one that is “convenient.”  In other words, part of the penalty for a criminal or DUI conviction is that you don’t get to act normal by enjoying an adult beverage.  At the end of part 1, we were, figuratively speaking, standing in front of the Judge who was wondering if a person tested positive because he or she is hell-bent on NOT following the rules or is otherwise unable to cope with his or her urges to drink (or use drugs).  We concluded by pointing out that it’s that very spot where most people really get a sense of how bad their situation looks, and asking what can be said or done to make it better.

Plan-or-Growth 2.0There is no simple, one-size-fits-all answer to that question.  And to be perfectly honest, some Judges are “easier” than others.  You can call them more forgiving, lenient or understanding, but the plain fact is that there are some Judges who won’t really have much interest in your side of things if you test positive, and I can think of at least one Judge who will have about ZERO interest in anything you have to say once you’re caught drinking or smoking weed while on probation.  In that sense, as you look for a lawyer, you need to find one who really knows the Judge or Judges in the court where your violation is pending.  For example, that Judge who would probably have the least interest in anything you have to say is also (not surprisingly) rather short on patience, so it would not be a good tactic to go in there with an attorney who will drone on and on about kinds of stuff she DOESN’T want to hear.  Any chance to change her mind needs to come right out of the gate, not after torturing her by babbling on and on….

As we noted above, the goal in a probation violation case is to convince the Judge that you neither callously disregarded his or her orders to not drink (or use anything else) nor do you have an underlying problem with urges too strong to resist.  Of course, everyone’s first strategy is to say that very thing.  Part of the problem with such a plan is that, almost without exception, everyone does and says that same thing.  Over the course of my 26 years, I have read, quite literally, thousands of DUI police reports.  Ask any DUI lawyer or any police officer what people say when the officer asks if the person has been drinking, and you’ll learn that far and away, everyone gives about the same answer; “2 beers,” “2 drinks,” or “a couple of drinks.”  No one replies, “Hell yeah; officer, I drank a lot, and man, am I am really drunk right now!”  Likewise, everyone who stands before the Judge for drinking while on probation says that he or she didn’t mean any disrespect nor do they have drinking problem.  So if that’s not going to fix things, what do you do?

As a Michigan criminal defense and DUI lawyer, I get called upon to handle a lot of probation violation cases.  In fact, it’s quite likely that if you’re reading this, you or someone you care about is facing one.  In this article, I want to take a real-world look at the 2 most common reasons people wind up getting violated:  A positive urine or breath test result or a missed test for alcohol and/or drugs.  Sure, there are plenty of other ways that people violate an order of probation, and much of what we’ll look at here applies equally in those situations, but most of the calls I get follow a positive result or a missed test.  I want this installment to be candid and conversational, as if you were sitting in my office and we were speaking across my conference room table.  I’m sure that you’ve already come across plenty of lawyers with catchphrases about your freedom, your future, and/or control over your life, or who focus on how tough and aggressive they are.  By now, you’ve probably grown weary of all that, so we’ll change focus and use this article to examine how probation violations play out in real life, and how I handle them.  This article will be divided into 3 installments, and will really explore the goings-on in a probation violation case.

27777764-fresh-we-need-to-talk-symbol-background-with-space-for-own-text-Stock-Photo-300x300We’ll start by looking at the hard truth that a lot of people (including lawyers) want to dance around, rather than face head-on:  When you’re caught giving a positive test result, the first impression is either that you’re giving the finger to the Judge or you have a real problem with alcohol and/or drugsProbation is a break; an opportunity to stay out of jail by, amongst other things, showing up for all required tests and then passing them.  Of course the job of your lawyer in a probation violation case is to get the Judge to see what happened as being neither a disregard of his or her order nor as proof that you have some irresistible compulsion to drink or get high, and for everything else that can be said, this is the real crux of the matter.  It should be pointed out that although most Detroit-area courts use the term “probation violation,” some others call it a “VOP,” meaning violation of probation, or a “show cause,” which is a hearing that requires you to go before the judge and show cause (a good reason) why you shouldn’t be held in violation.  Whatever it’s called, it’s all the same thing.

We should also note, at the outset, that good reasons do exist for having missed a test, and that false-positive results do happen.  Sometimes, the simple truth is that a person misses a test because he or she forgot, or got real busy, or had to go to work, but was not to avoid a positive result.  In a perfect world, when that happens, a person will be timely notified of a positive result and have an opportunity to retest.  In the real world, however, it often works out that by the time a person learns he or she has failed a test, it’s too late to do anything about it.  Sometimes, a test result is wrong, but when a positive result is correct, meaning you did, if fact drink (or use drugs), you need the kind of lawyer who is a persuader, and who can explain things clearly.  In other words, if the positive test result is correct, it couldn’t matter less if your lawyer has a Nobel Prize in chemistry; that’s not going to make things better in front of the Judge.  Instead, you need to convince the Judge to not put you in jail or otherwise hammer you.  At the end of the day, while some cases do involve false-positive results, most arise because you simply got caught, and here, you need to go into full damage-control mode.  Let’s examine, in turn, positive test results (when you did drink or use), false-positive results, missed tests, and what has to be shown for you to be found guilty of a probation violation and how that all goes down in court.

If you have been arrested for a drug possession offense in Michigan, whether it’s the simple possession of marijuana, possession of analogues (meaning drugs like Vicodin and Xanax), or other controlled substances, including things like cocaine, ecstasy and heroin, a lot goes through your mind.  Of course, you’re undoubtedly filled with regret (certainly regret at being caught), but chances are, the reality of a possible drug offense on your record also has you worried.  The point of this article is to reassure the reader – whether you’re the person facing the charge, or you’re researching for your child, partner, or someone close to you – that in most cases, many, if not all, of the negative consequences, including a drug conviction on your/their criminal record, can be avoided.

Criminal-RecordsAs of this writing in July of 2016, possession of marijuana (spelled marihuana in the law book) still violates state law except with a medical marijuana card.  Certain municipalities have either de-criminalized or even legalized possession of small amounts of marijuana, but chances are, if you’re reading this, it’s because you were pulled over and found to have some in a jurisdiction where it is still illegal.  I point this out because the attitude of some people regarding marijuana is a bit ahead of the law.  For all the argument and analysis about how things should be, or likely will be down the road, the fact is that if you are found to be in possession of marijuana in most places, you will face a misdemeanor drug crime, and like all other possession charges, that subjects you to suspension of your driver’s license, making it all the more important to avoid such penalties by keeping the whole thing off of your record.

To keep this article short, I’ll skip the in-depth analysis of the “legal maneuvers” required to keep a possession charge off of your record.  In the real world, there are generally 2 ways this is done:  For those who are under 24 years of age (in other words, the day of the arrest or citation must be before the person’s 24th birthday), a conviction can be avoided by what is called “HYTA” (pronounced “hi-ta” and formally known as the “Holmes Youthful Trainee Act.”  Until recently it only applied before a person’s 21st birthday, but that has changed.), or what is commonly referred to as 7411 (said like “74-11” and referring to the actual Michigan Compiled Law –MCL 333.7411).  Let’s repeat that more simply; drug possession charges are kept off of a person’s record by either using “HYTA” or “7411.”  Unfortunately, in the real world, cases are often a bit more complicated, like when a person charged with possession of marijuana is also charged with possession of paraphernalia, or a DUI offense, as well.  For anyone over 24, there is no HYTA available, and a conviction for possession of paraphernalia cannot be deferred under section 7411.  This means that the lawyer will often have to do some creative negotiating to keep your record clean.  No matter how you cut it, the bottom line is that you hire a lawyer to make things better, and in the world of drug possession and related charges, that means, first and foremost, keeping everything off of your record.

In part 1 of this article, we began our examination of drinking (and drug use; the lessons here apply equally) and that uneasy feeling some people get when they get caught up in something like a DUI or criminal charge and they realize that something about their partying behavior (like facing a drinking and driving charge) just isn’t working out the way they want. Many of my clients are people who have found the true joy of getting clean and sober and are now moving ahead toward a driver’s license restoration. On the flip side, many of my clients are people who are a million miles from having any kind of problem and just make a mistake in judgment and get a drunk driving. Others may indulge in the occasional joint and simply get caught being in possession of marijuana. Still plenty of people that I see are dealing with the consequences of alcohol (or drug) use that has gotten out of hand. While I hope a lot of people find something of use in this article, my deepest hope is to extend a hand to the person who is just beginning to open up to the idea that his or her relationship to alcohol or drugs is problematic. We don’t need to describe or label it in anymore detail than that; this is for those who simply have a feeling that something just isn’t right. In this second part, we’re picking up with the idea that quitting doesn’t really have any downside. There is no “missing out” on the fun (and how much fun has it been lately, anyway) but rather about things getting better. A lot better.

wine_glass_3169919b.jpgHere’s the real kicker: When a person quits drinking for good, always, and without exception, his or her life improves. On the one hand, life itself gets way better, while on the other, the storm of never ending (and self made) problems just comes to an abrupt end. As much as someone may wonder how they’ll ever have fun again without alcohol, everyone who has ever gotten sober shakes their head in regret that they didn’t do it sooner. How much fun is drinking right now? How much fun has it been recently? Is it really the grand prize of all prizes to work all week just so you can piss away an entire weekend getting wasted? Is getting drunk on Friday night really the best reward you deserve in life? When people get sober, they get genuinely happy. They look at the people in the bars at night and feel sorry for them. They’re out doing whatever, and they feel a sense of pity for those to whom another night getting toasted is their life’s goal. Sober people know they’re not missing out on anything (by contrast, they know the folks wasting their nights getting hammered are the ones really missing out), and, to a person, they all wish they would have figured this out sooner.

This is the one time in your life when you should act quickly. The biggest waste of your precious little time on this planet is to think too much about this before you act. You can easily get stuck in the paralysis of analysis, where you think about everything, but do nothing. Pick up the phone and reach out for help. Remember my questions: How much fun is drinking right now? How much fun has it been recently? Now, consider this question: What do you think is going to change, and when, that will make drinking fun and safe again? I’ll help you cheat by giving you the answer: Nothing. Not now, not later, not ever. It’s time to grow up and take control over your life. You’ll be incredibly glad that you did. You’ll get back more than you even know you lost, and you’ll move ahead like you never thought possible. Can you think of any way that not drinking will harm you? How many ways has it helped you, lately? It comes back to the fact that those uncomfortable feelings you’re having are “right.” That’s your gut; now is the time to trust it…
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As a Michigan criminal, DUI and driver’s license restoration lawyer who spends almost all of his time on cases directly connected to problems caused by alcohol and drugs, I have wanted to write this article about coming to grips with those problems for a long time. I suppose I have, separately, and in little pieces throughout the nearly 700 articles I have published thus far, but this is really my first attempt to put it all together at once. To keep things manageable, I’ll break this piece into 2 installments. My goal here is to reach out to the person whose drinking or drug use has become an “issue” in a criminal or DUI case (or even outside of that context) and who has the unsettled feeling that something just isn’t quite right. Sometimes, these “issues” become pressing and a person begin to think about all of this after an arrest and arraignment for something like a drinking and driving offense, when he or she is suddenly ordered, by a Judge, to refrain from drinking (and drug use) and is being tested to ensure compliance. The first reaction is often a kind of discomfort because you really don’t know if you can stop drinking (you may tell yourself something like it’s not that you can’t, but rather than you don’t want to), and it’s always accompanied by a kind of anger that you’re being “forced” to not drink, and besides, who the hell is someone else to tell you that you have a problem, or treat you like you have one? This kind of inner turmoil is a big clue that something is amiss.

wine-690299-min-1080x675.jpgIt’s not that everyone who is unhappy with an order to not drink has a problem with alcohol, but the degree to which someone is frustrated by or resistant to this kind of required, but temporary, abstinence can be telling. In my driver’s license restoration practice, for example, where my clients are sober and usually have been in recovery for a number of years, most will admit to NOT having stopped drinking, even while they were on probation or being tested as a condition of bond. For these people, alcohol admittedly played a disproportionately (and therefore inappropriately) important role in their lives. In other words, drinking was too much of a priority for them. To choose to use alcohol despite being ordered by a court to NOT do so, while simultaneously being under very real threat of going to jail if you do is clearly maladaptive and troubled behavior. For as much as I have seen and learned over my 25-plus years, perhaps the best and simplest way I’ve heard it put is this: “Anything that causes a problem is a problem.” In the real world, no one ever thinks about their drinking or partying until it starts causing problems. At first, those problems are infrequent and usually “fixable.” The thing is, once the problems start, meaning once you have more than something like an isolated, 1st offense DUI that just “happens,” the problems tend to keep coming, and they come more frequently and get more complicated (and expensive).

Precisely because of the way I spend all of my workdays as a lawyer, dealing with legal issues involving alcohol and drugs, I realized how much more I could actually help my clients by advancing and formalizing my understanding of addiction issues. Accordingly, I went back to school at the post-graduate level (a post-graduate program, unlike a regular graduate program, is for people who already hold a graduate degree) and completed the coursework in an addiction studies program. I learned a lot there, all of it from the clinical, rather than the legal side of things. Still, nothing beats good old-fashioned experience. Book learning is great, but I prefer the “real world” over everything else. For all the clinical and technical terms that I added to my vocabulary, I saw that in the addiction field, just like everything else, we tend to talk things to death, and it seems that in the quest to help people, we sometimes talk them right out of seeing what’s right in front of their eyes. In the case of alcohol and addiction issues, for example, the over-use of terms such as “alcoholic,” “alcoholism,” “denial,” “powerlessness” and “surrender” can scare people off and send them running for the hills. Getting help should not sound so demeaning or scary. Let me explain what I mean…
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As a Michigan criminal, driver’s license restoration and DUI lawyer, the whole concept of addiction is pervasive in my work. Each and every day, I deal with people across the substance abuse spectrum, including those who have alcohol and or drug problems and don’t know it, some who won’t admit it yet, but may be in the midst of struggling and/or coming to grips with their problem, and others who are in recovery. In addition, I deal with plenty of people who do not have any kind of problem, no matter how things may look in the context of any particular circumstance or case. Not very long ago, I wrote an article about how the whole court system has a pretty strong bias in DUI cases that tends assume that everyone charged with a drunk driving has a drinking problem, or at least a significantly increased risk of having one. In a very real way, this is a little more than an extension of this whole new focus on “addiction.” Addiction has become the new buzzword in criminal and DUI cases, and one of the newest marketing focuses just about everywhere. I have seen a growing number of ads on TV offering to help people break the cycle of alcohol and/or drugs. On this subject, I can speak with some real authority because I have an extensive, post-graduate University education in the field of addiction studies. Thankfully, my studies in this field predates its recent popularization.

Thumbnail image for 606e84581ee0736db8b3783711efd385.jpgThis matriculation enables me to understand substance abuse problems from the clinical side of things as well as the legal. To me, it’s kind of like having both sides of a Q-tip. It goes without saying that, for example, in a DUI or drug possession case, any lawyer smart enough to boil water wants to avoid having her client seen as having an alcohol or drug problem in order avoid as many negative consequences as possible. On the flip side, it doesn’t take a legal scholar to understand the value of shielding the client in the cloak of having a “disease” or problem when doing that will make things better in ways like avoiding jail. To put this another way, in situations like a 1st offense DUI, the goal is to avoid having the client look like he or she has any kind of problem (or even potential problem) with alcohol. In that situation, the word “addiction” is bad, because no one wants to be loaded up with otherwise avoidable classes, counseling or treatment. By contrast, in a 3rd offense DUI, the word “addiction” is useful, and will almost certainly be invoked to deflect anger from the fact that a person is a repeat offender. Instead, the idea is to have such a client perceived as more like the victim of a problem who needs (and wants) help, rather than a “criminal.” In the context of a winning Michigan driver’s license restoration case, it is essential that the person be able to prove genuine sobriety. Accordingly, anyone who wants to win back his or her driver’s license must begin the process with a solid understanding of his or her addiction, as well as recovery from it.

It doesn’t take any real degree finesse for a lawyer to take a 2nd DUI offender, for example, and tell him or her to get into counseling, and then just show up in court and try and play the “recovery” card. Unfortunately, the word “addiction” has been thrown around so much recently that it has practically lost any subtlety it used to have. The same thing happened over the years with the use of precious metal terms. At one time, having any kind of “gold” credit card (or membership or other privileges) was the best you could do. Then, gold wasn’t good enough, and we were introduced to platinum. Not long after that, when gold was forgotten and platinum has lost its luster, things went to titanium. Now, the world is focusing on addiction, and it seems like the word is being used in endless situations. The setting we’re concerned about in this article is how we can use “addiction” (including a lack of it) to make things better for people facing a criminal or DUI charge, as well as the role it plays in a successful driver’s license appeal. Let’s see how this all works in some real world situations:
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As a Michigan criminal and DUI lawyer, I’m used to analyzing and talking about facts. Yet facts are not always self-evident. Founding father John Adams once famously argued in court that “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, you cannot alter the state of facts and evidence.” And while Adams was correct in a philosophical, theoretical sense, in the context of a criminal or DUI case, a “fact” is essentially something that exists as the Judge perceives it. To bring this back to the real world, we’ll look at how what clearly seems like a fact to one person can seem almost like a fairy tale to someone else, and how certain things are just “there,” and must be acknowledged, then worked through.

Thumbnail image for Thumbnail image for Facts 1.2.jpgThis becomes really important when you are the person facing a criminal or DUI charge. To give the reader an idea of what I mean, consider these two examples: First, imagine a person with absolutely no prior record of any kind who winds up facing a DUI charge after providing a .17 breath sample. The person has always been a hard working, tax paying and law abiding citizen. While he or she may want to make sure the Judge sees how out of character the Operating While Intoxicated incident is when contrasted against the whole of his or her life, the Judge may look at the person’s BAC result as more than 2 times the legal limit and high enough for the enhanced “High BAC” DUI charge, and see (i.e., perceive) little more than a walking, talking danger to society. The .17 BAC result may be inconvenient and truly unrepresentative of the person facing the charge, but it nevertheless exists as a fact.

For our second example, suppose a person is facing a Judge for the 2nd DUI in his or her lifetime. Even though any number of years may separate the prior offense from the current, it is still the case that the person is now charged with his or her second DUI overall, whether or not the case is brought as a 1st offense or a 2nd offense. While the person may have some good (and valid) reasons why this second case is also an out of character incident and does not represent a pattern of problem drinking, the Judge may see little or nothing beyond the “fact” that he or she is a repeat, 2nd time DUI offender. However you cut it, the whole 2nd offense thing is just “there,” and it must first be acknowledged before anything can be done to make it better. “Facts,” in this sense, are a matter of perception. I have long known that the right way to handle any criminal or DUI case is the to combine a thorough knowledge of the facts of the case and the applicable law with the skillful management of time, perception and science. In a certain way, controlling perception amounts to controlling the facts…
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