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Stay out of Jail, save your Record, and avoid Difficult Probation.

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:

At its simplest, a DUI charge means that you’re in trouble, and are facing a number of legal consequences. Some lawyers rely on fear-based marketing strategies that warn everyone of all the scary things that could happen (especially jail), and then follow it up with some kind of pitch about hiring them. I hate that kind of BS, primarily because it is BS. For the most part (even if you’ve been down this road before), jail isn’t on the menu in a 1st offense DUI case, can often be avoided in 2nd offense cases, and is even possible to get out of in many 3rd offense cases as well. In fact, with one local Judge as the only realistic possible exception, jail is virtually never imposed in a 1st offense case here in the district courts of Oakland, Wayne and Macomb Counties. This means that once you understand jail wasn’t coming anyway, not having been sentenced to it is really a false measurement for evaluating success in your DUI case.

original_less-is-more-typography-quote-218x300In a very real sense, success in a DUI case is always best judged by what does NOT happen to you. In other words, the less “stuff” you have to go through, the better. This applies to every potential legal consequence you that could be imposed for an OWI conviction. Sure, staying out of jail is great, but once you realize you weren’t going anyway, how do you know if your lawyer has procured any real benefit for you? Assume, for example, that Dan the driver is charged with a DUI in City X, and the Judge there (like almost everywhere else) never puts 1st offenders in jail. Dan isn’t a lawyer, so the only thing he knows is that the law says you can go to jail for 93 days. Dan is so worried about getting locked up that he’ll do anything to avoid it. He winds up hiring Lazy Larry, the lawyer. Larry, of course, knows Dan isn’t going to jail, but still makes a big deal out of how he’ll keep him out of it. Lazy Larry takes the first deal offered by the prosecutor, knowing that how relieved Dan will be to find out he’s not going to jail. Dan has his license suspended for 6 months, winds up being placed on 18 months of reporting probation while having to breath and urine test 3 times per week, and also being required to complete substance abuse counseling along with 60 hours of community service. At first, Dan thinks Lazy Larry is the greatest thing since sliced bread, simply because he is under the (mistaken) impression that Larry actually did something to keep him out of jail.

Until Dan finds out that his Judge has never sent anyone to jail for a 1st offense OWI charge. Curious, Dan hops on the internet and starts reading some of my blog articles and learns that the real focus in a DUI case is to make sure the client doesn’t get hit with all kinds of counseling, or treatment, and certainly avoids long and difficult probation with burdensome testing. Dan figures out that when a lawyer has the jail issue squared away (usually because it wasn’t an issue in the first place), he or she should be focusing on sparing the client from all the other stuff that really IS possible in a DUI case. In other words, in Dan’s case, Lazy Larry really didn’t do anything beneficial, especially because it’s not like he actually prevented Dan from serving any jail time that he wasn’t going to be ordered to jail time anyway. Instead, Larry’s efforts should have been directed to saving Dan’s license, and keeping him off of such a long probation with all that counseling, along with breath and/or urine testing and community service. As an honest lawyer who knows that Dan was never at risk to do any jail time, I’d rate the outcome of his case an absolute failure. If success is best evaluated by what doesn’t happen, then Dan got screwed, pure and simple. How could any other conclusion be reached?

Possession or use of marijuana is still a criminal offense in Michigan unless you have a medical marijuana card. This article will focus on possession charges for those without medical marijuana cards; there are plenty of lawyers who concentrate in the medical and business end of “cannabis law.” I’m not one of them. My goal here is to focus on the person caught smoking or otherwise in possession of weed intended only for recreational use. The writing is on the wall with respect to marijuana, and sometime in the not-too-distant future, recreational pot will certainly be legal, but it’s not as of now, and you’ve probably found this article because you’re facing a possession charge. Beyond the legalities involved, which aren’t really all that complicated, I want to direct our attention to how these cases are typically viewed by the courts.

1_nl-um_SLMmHSEFgQ4T08Kw-300x185This is probably the most important perspective to consider, although it’s overlooked by just about everyone (including lawyers) when writing anything about marijuana and the law. At the end of the day, recreational marijuana is still an illegal drug. If you’ve been charged with a crime involving it, your lawyer had better understand how the Judge in your case views these things. I make my living in the courts of Metro-Detroit, meaning all the district and circuit courts of Oakland, Macomb and Wayne Counties. I don’t know of any Judge who is “for” pot, or otherwise supports the legalization of marijuana for recreational use.

In fact, compared to someone caught smoking weed in a car, most Judges are pretty conservative people. That’s not to say they didn’t live a little, or have some fun when they were younger. Nor, by the way, am I implying that there is anything wrong with anyone who ever did or still does use marijuana recreationally. The point I’m making here is that there is a pretty big difference in attitude and outlook between a person found with a bag of weed on his or her person and the Judge, sitting in a courtroom, who will be presiding over his or her possession charge. Some Judges are way more conservative than others, and view marijuana as just one of many dangerous and illegal drugs. It’s very important to realize that not understanding this perspective as an integral part of handling a possession case means a lawyer is ill-equipped to do so.

As a Michigan driver’s license restoration lawyer, I have seen a dramatic rise in the number of ignition interlock violations in recent years, along with a notable increase in the amount of people who lose their driver’s licenses as a result. Although being violated is not good news for anyone required to use an interlock, it doesn’t happen randomly, or without a clear reason. There is usually an objective and understandable cause underlying why violations are brought. We may not like the reasons, but the whole license appeal and violation process is controlled by very specific rules. As it turns out, almost everyone who has his or her license taken away again because of an interlock violation could have avoided it. Perhaps the most regrettable of these situations is when I’m contacted by someone after they’ve gone and tried to represent themselves in a violation hearing, lost, and then wonders if there’s anything that can still be done. Almost without exception, the answer is always no.

Why-2-300x232This could almost sound like a set up for some self-serving piece where I tell the reader to just “hire me,” but it’s not. Whatever else, the idea of hiring me (or any lawyer, for that matter) after you’ve lost a violation hearing is a perfect example of the old saying “a day late and a dollar short.” Ideally, it’s best to avoid a violation altogether, but the likely reality is that it’s probably too late for just about anyone and everyone reading this to do that. This isn’t as academic a notion as it sounds, because there is a section in every winning order granting a license appeal about proper ignition interlock use, that, if followed, will prevent most violations from ever happening in the first place, while providing instructions to get the evidence needed to successfully defend yourself and win your license back at a violation hearing in the event it cannot be avoided.

We’re not going to get into all the different kinds of violations and how they should be handled, lest we start examining an almost endless list of possible scenarios. Instead, I want to look at why the Michigan Secretary of State seems so keen to issue violations in the first place, because that is directly relevant to how they should be handled. First off, in answer to a few questions that haven’t been asked yet: Yes, this is (in many cases) unfairyes, this does suck, and no, it doesn’t seem very efficient. Once you receive a notice of violation, however, there is nothing you can do to stop it from taking effect. In other words, you are going to lose the ability to drive, at least until this is resolved.

I handle a lot of appeals to clear a Michigan “hold” on a person’s driving record so that he or she can get (or renew) a license in another state. In fact, somewhere around 1/3 of my license appeal clients come from out of state. In the course of my practice, I get tons of emails from people who need to obtain clearance of a Michigan hold on their driving record. Understandably, many of them inquire about using my services in a limited way to “help” out with an appeal, because they’re trying to avoid coming back here. In this article, I want to explain why I won’t do that for any amount of money, and why coming back is the key to winning your clearance the first time around.

Letsfixthisalittlebit_7cdd9205ebc87243e945fbfb39104d4fThe Michigan Secretary of State allows a person who now lives out of state to file what is called an “administrative review,” which is actually an appeal-by-mail, in order to try to obtain a clearance. Every year, 3 out of 4 of these appeals are denied. No one really knows how many times those who do eventually win have tried in the past, but the bottom line is if you’re looking to try this route, it’s a clear signal that you don’t fully understand the process. That’s not an insult, because here, in Michigan, very few lawyers fully understand the license appeal process, and fewer still (if any), who, like me, guarantee to win every case they take. In fact, the reason I won’t touch administrative review cases, despite the financial incentive to do so (less work for the same money), is precisely because I DO fully understand the process, and see how an appeal by mail is entirely inferior to a conventional license appeal, which also includes a hearing, something that is conspicuously absent from the decidedly lazy and second-rate, shortcut method.

There’s a reason I guarantee to win every regular, in-person license case I take, and that’s because I not only start with a genuinely sober client (or I won’t start at all), but also because I control every aspect of the process. To be clear, the only difference between an administrative review and a regular clearance appeal is that the administrative review is decided on the documents alone (without a hearing), whereas the regular appeal is decided after a hearing. It’s not that the hearing itself is such a big deal to me, but rather that when my clients come back, I begin to make sure I exercise proper quality control because they’ll first see me for 3 hours at our initial meeting, get prepared for and then go to have their substance use evaluation completed by MY evaluator, whose office is just a few blocks away. After that, I personally handle every step we take. My clients will send me draft copies of their letters of support for review and correction before they are ever notarized. Ultimately, I double and triple-check the entire package of evidence, including the substance use evaluation and all the letters, before it’s submitted. Finally, I prepare each and every client for the hearing so that when we go in for it, all they have to do is tell the truth.

In part 1 of this article, we began examining the fundamental importance of your BAC result in a DUI case. Given that this article should be read as a whole, I simply divided it at about the halfway point, so we’ll resume right where we left off, and skip summarizing what we’ve already covered. Common sense dictates that those people arrested for a DUI with a higher BAC are probably more frequent, or “bigger” drinkers than those with lower results. Common sense also dictates that people who drink more are more likely to develop a drinking problem. Duh. It is much less likely that someone who rarely drinks, and then only has 1 or 2 drinks when they do, will morph into a problem drinker than someone who drinks all the time. The more you drink, the greater the risk to have or to be at risk to develop a drinking problem. Again, this is common sense, but, as a DUI lawyer, I always have to remember that these are general observations, and that there are plenty of exceptions. Therefore, it is an important part of my job to protect my client from getting swept away by the system’s built-in alcohol bias. I’ve had plenty of clients with high BAC results who really weren’t big drinkers. We can say that all day long, but the burden is on me to come to court with something to back that up.

Im-big-drinker-300x249Almost without exception, everyone arrested for a DUI (especially a 1st offense), will proclaim that he or she isn’t a big drinker. People charged with the High BAC offense do this all the time, as well, although they often try to explain it in a way that at least acknowledges that their situation looks bad. By contrast, no one ever tells a Judge that he or she IS a big drinker and can handle their booze. Can you imagine someone saying to the court that even though they had an elevated BAC number, they weren’t really that drunk? The reader has no idea how many times I’ve sat in court and heard a Judge tell someone (not my clients, because I won’t let them make that mistake) that despite their protestations to the contrary, their BAC indicates that they drink more than they’re letting on. When a person’s alcohol level belies the fact that he or she does not have an alcohol problem, we need to prove that, not just say it.

This is not an impossible task. Clinically speaking, there are some outliers who have a higher tolerance to alcohol than others and do defy the “general rule.” This applies to everything, and not just alcohol. My wife, for example can tolerate hot food temperatures much more than me. If we go out to eat and the server brings a bowl of steaming hot soup, she’ll dig in right away, while I have to wait a long time before I find it anything less than scalding. By contrast, I love spicy stuff (and, nerd that I am, belong to a “hot sauce club” that ships 3 new bottles to my door every month), so what I find more like “medium” spice will leave most people screaming in pain. I use the hot sauce example for 2 reasons relevant to our discussion here. In the first place, I have, of course, developed a tolerance because I do eat hot stuff all the time. However, I have always had a greater, native tolerance to spices than the average person to begin with, and I suspect that few people without a little increased tolerance to spice heat would be the kind to join a hot sauce club, and would probably never go beyond anything hotter than Tabasco sauce.

There is no way to overstate how much your BAC (Bodily Alcohol Content) result will affect your DUI case. To get a head start on our examination, let’s cut right to the chase: the higher your BAC, the drunker you were, and the more it looks like you are a big (as in experienced) drinker. This is a critically important issue, so this article will examine how to best deal with it. This is rather obvious in a “High BAC” cases, where a person is actually charged with OWI (Operating While Intoxicated) and having an alcohol level of .17 or more. The point I want to make in this article, however, is not about that charge, or any particular DUI charge, for that matter, but rather how a your BAC, whatever it may have been, plays a key role in your case. For example, you could test out with a BAC of .24, and in some jurisdictions, still not be charged with the enhanced “High BAC” offense, while just up the road, you could test out at exactly .17 and wind up facing that more serious crime. Our discussion here is really independent of the precise offense charged, and focuses, instead, squarely on the BAC number from your arrest, whether you took a breath or blood test.

hello-my-name-is-condom-foil-300x298No matter how you cut it, the lower your BAC, the better. Unfortunately, if you’re reading this, there’s nothing you can do about that now, so we’ll just have to deal with it as it is. If there’s one consistent factor in all of this, it’s perception, and by that, I mean  how you are perceived. You don’t need to be an experienced DUI lawyer to understand that, given the legal limit of .08, you look worse walking into court with a BAC of .19 (almost 2 and 1/2 times that legal limit) than you do if you only blew a .09. The problem, of course, is that perception can be skewed, and a situation may “look” to be worse than it is. This circles us back to the idea that the higher your BAC, the drunker you look to have been AND the more it looks like you’re a “big” drinker.” While not always true, a person who only drinks occasionally and would otherwise be considered a “lightweight” usually can’t handle a lot of drinks, and typically won’t show up with sky-high BAC. Regular consumption of alcohol builds a tolerance to its effects, especially for the first few drinks. A non-drinker may feel pretty buzzed and somewhat clumsy after 2 screwdrivers at a wedding, while a more regular social drinker will not.

This begins to matter a lot more as your BAC climbs, and especially as approaches being double the legal limit. A person who rarely drinks (like our 2-drink wedding guest) would have a very hard time not puking before getting to a .15 BAC. There are always exceptions, but the prevailing belief is that the higher your BAC, the more you look like an experienced drinker and the drunker you probably were at the time you were arrested. This is kind of an ugly reality that is not discussed enough by lawyers because it’s a subject that doesn’t make for good marketing. A DUI lawyer can always get more “bites” by telling people all the things that could be wrong with the case against them (and therefore, in theory, could cause the case to be thrown out of court) than by telling them how the case against them is complicated by the factors that do exist. In other words, and in almost every setting, people are always more willing to pay for what they want to hear rather than what they need to hear. That, however, is not right, either factually, morally, or practically. Most DUI cases – as in the vast and overwhelming majority – do not get tossed out of court. Period.

The previous article focused on positive alcohol test results, particularly within the context of bond and probation violations. The focus there was more on the results (and drinking) rather than the violation. In this installment, I want to focus more specifically on handling bond and probation violation cases. While most bond violations occur because a person tests positive after drinking, our examination here will be broader, and applies to anything that is a violation, rather than just positive alcohol (and even drug) tests. If you’re facing a violation, the only person who can really help you is a lawyer, but most of the time, legal acumen, by itself, is far from enough, and the best way to resolve these matters requires a skillful blending of charisma, experience and speaking ability. In other words, you need a lawyer who can charm the snake right back into the basket.

Second_Chance-300x281We could get detoured forever just trying to list the many reasons someone is called in for a violation. Of course, it’s mostly for either missing a test or testing positive for alcohol and/or drugs, but the larger point is that whatever the reason, it’s a violation for either doing something you shouldn’t have, or not doing something you were supposed to do. We begin with the certain knowledge that your Judge, whoever he or she may be, is not pleased with you. You’re in trouble – again – and you have pretty much forfeit most, if not all, of the Judge’s patience and understanding. I don’t say this to scare the reader (I hate any kind of fear-based marketing), but rather because you almost certainly already know this; you feel it, and for all the good that can be done, it’s bone-headed to not at least recognize the position from where you start.

Another detour I want to avoid in this article is a potentially endless examination of all the reasons why a person may be innocent of a violation. For the most part, except for things like a dilute urine sample or a false-positive result, the overwhelming majority of people look for a lawyer in this situation because they did, in fact, violate some term of their bond or probation. Even missing a test for a good reason is still a violation. Thus, we’ll mostly be examining those situations where you have to go back in front of the Judge, to put it bluntly, because you screwed up. This is why I hinted, in the first paragraph, that all the legal skill in the world isn’t much help when you’re back before the Judge for either doing something you were ordered not to do, or for not having done what was required of you.

In my capacity as a DUI and driver’s license restoration lawyer, I deal with positive alcohol tests and the problems they cause just about every single day. This article will focus on failing a PBT and/or an ETG test in a DUI case. This happens either when a person is required to test while on bond, or while he or she is on probation. We’re going to be blunt and honest in our discussion here. In that context, it’s almost a given that you’re not here reading this because you want to know how to avoid failing an alcohol test in the first place, but rather because you have already failed one. Sure, there are cases where a person is the victim of a false positive result, but we won’t waste much time on that because the vast majority of positive results do, in fact, accurately reflect that a person had been drinking. For the most part, this article will focus on those real life situations where a person has been caught, despite being ordered to refrain from consuming alcohol, and now faces going back to court for a bond or probation violation.

ScrewedUpMyStory-300x300The reader may be surprised to learn how often this happens. Because I am a DUI lawyer, and not some guy who takes on every kind of case under the sun, almost every client in my busy office comes in for something related to either current or past OWI case, or at least something similar. I begin almost every workday in some court or other for a DUI or DUI-related case. Over the course of my years, I have been involved with, quite literally, more failed alcohol and drug test violations than I could ever count. I’ve handled violation cases for people in every kind of occupation, from doctorate-level professionals, successful business types, to folks who are changing careers. The point I’m making is that getting caught happens to people of every stripe. What I want the reader to understand is that this has less to do with my practice than the experience of the court system and the people that go through it. It’s no more surprising for a surgeon, nurse, accountant or lawyer to wind up violating a “no drinking” condition of bond or probation than it is for Snake the Biker to do so. Accordingly, alcohol and drug testing is the great equalizer, and here, one’s social capital doesn’t count for very much, because positive is positive, whether you are the Executive Vice President of a Fortune 500 company or you empty trash cans at the mall.

This, of course, explains why probation officers and Judges are skeptical, and can seem almost outright cynical. They become that way over time. This will happen to anyone who plays some part in this system (including me, except I get paid to work past it). With time and experience, you hear and see it all, from the occasional false-positive test to all kinds of bizarre circumstances, with offers of just about every excuse you could ever imagine. In fact, one of my all-time favorite explanations that people give for testing positive for alcohol actually has a name – the “NyQuil defense.” You can probably guess the rest. I know better than to try using it, but it wasn’t long ago that I saw a lawyer standing next to a client in a local court and as soon as cold medicine was brought up, the Judge, quite literally, waved it off with her hand and said something like, “Oh no, we’re not even gonna try the NyQuil defense.” I was on my way out of the courtroom, but I sure hope that lawyer had a better “plan B” than his “plan A.”

In my role as a Michigan driver’s license restoration lawyer, I’ve written every article this blog, which is by far the best and most comprehensive resource for information about every facet of the license appeal and clearance process on the internet. One thing that I have to bring up regularly, just to keep squarely within view, is that you must have quit drinking in order to win your license back. While I guarantee to win every case I take, I do not take every case that comes my way, and will only accept cases for people who genuinely do not drink anymore. I get endless emails from people who tell me how much they need a license and how long they’ve gone without one, but when I ask how long they’ve been sober, things suddenly go quiet. In this familiar-themed article, I want to make clear, once again, that you must have completely severed your relationship with alcohol as a pre-condition to winning a driver’s license clearance or restoration case filed with the Michigan Secretary of State’s Administrative Hearing Section (AHS).

89b6b6b380687d516ec55270162905f7-213x300Look, I’m in business to make money, not turn away people who are willing to hire me. However, I do have a conscience AND a guarantee, so I simply cannot and will not take on a case that cannot win. Sobriety is a non-negotiable requirement to win your license back. I was speaking with another lawyer recently about this, and he kind of laughed in agreement and said that once, when he asked a guy if he was sober, the reply was something like, “Yep. I only drink beer now.” Among other things, over 27 years as a lawyer has taught me that many people simply don’t understand that an important part of what sobriety means is that you have completely stopped drinking. For its part, the Michigan Secretary of State (SOS) has drawn a line in the sand regarding license restoration and clearance appeals; only people who have quit drinking for good can win. Period. The state knows that, whatever people will say about how they are “different” now when it comes to drinking, and despite all the commitments and promises they make to never drink and drive again, those who no longer drink alcohol are exactly zero risk for a repeat performance. That’s the safest bet, and the only one the state will make. It’s that simple.

At least to me. And the Secretary of State. Part of the problem here is that everybody needs a license, so when some of them go online and find something like this blog or my website, see that I guarantee to win every case I take, they think, “Eureka!” It’s human nature, I suppose, for someone to focus more on how tough things have been without a license and how long they haven’t had one, than anything else. It’s perfectly understandable that a person will believe, in his or her heart of hearts, that no matter what, they’ll never drive drunk again. Under the main rule (Rule 13) governing license appeals, however, a person has to prove that he or she has been completely abstinent from alcohol for a sufficient period of time (in the rule, this is stated as the person’s alcohol problem being “under control“). The Secretary of State’s AHS hearing officers are given rather wide discretion in determining how much abstinence is enough (i.s., “sufficient”). More important, the second part of the rule requires that a person prove that his or her alcohol problem is “likely to remain under control,” which means that he or she has the commitment and the tools to remain alcohol-free for good, and otherwise seems like a safe enough bet to not drink again. This is really the “meat and potatoes” of the license appeal process – proving that a person will never drink again.