In this article, I want to explain the larger and primary purpose of the substance use evaluation (SUE) required in every Michigan driver’s license restoration and clearance case. I have divided this piece into 2 relatively small installments.

download-3The first thing we should do is to clarify the name, “substance use evaluation,” because many, if not most people, call it a “substance abuse evaluation.” I’m as guilty of that as anyone, both terms are used to mean the same thing. To keep things simple, we’ll often refer to the evaluation by using the abbreviation “SUE” in this discussion.

The Michigan Secretary of State has published an official substance use evaluation form for use in all license appeal cases. It’s best to use that form in a license appeal, although some evaluators use their own homemade form similar to the state’s. Our evaluator does it best, using an editable version of the official form that lists all the information relevant to a given case.

In part 1 of this article, we opened by acknowledging that the whole reason a person hires a lawyer in for a criminal or DUI charge is to produce the best (meaning most lenient) outcome possible. We began by examining the first of the 3 most significant considerations that a person should evaluate as he or she looks for representation: the lawyer’s personality. I noted that our discussion should be helpful to anyone looking for a lawyer for a Michigan criminal or DUI case. Here, in part 2 we’ll look at the second and third considerations, the lawyer’s experience, and the location of the case. We’ll see how those 2 things interconnect, as well.

6a00d8341c03bb53ef01156fb06321970c-600wi-1-300x300The second consideration is the important role of the lawyer’s experience. This really cannot be overstated. In my office, we concentrate in DUI and certain criminal cases in Oakland, Macomb and Wayne Counties. Because we focus our practice on criminal charges like indecent exposure, driving on a suspended license, and embezzlement, we have handled them, quite literally, more times than we could count. There does come a point when, after having done so many of the same kinds of cases, you actually have “seen it all.”

The value of experience seems pretty self-evident, but the way a lawyer can use it isn’t always so obvious. For example, I have been part of some rather creative plea bargain deals in one place, only to find that in another place, they’ve never heard of doing it that way. In some of those cases, I have successfully persuaded a prosecutor or Judge to try something new, in large part because I have seen it done elsewhere and been able to persuasively explain that it worked.

The purpose for hiring a lawyer to handle a DUI, other criminal charges, or even a probation violation, is to get the best outcome possible. In this article, I want to examine what I believe are 3 of the most important considerations in that regard: the lawyer’s personality, his or her experience, and the location of the case. Our inquiry will be relevant to anyone looking to retain an attorney for a criminal or DUI case in Michigan, even though my team and I specifically handle criminal and DUI cases in Oakland, Macomb and Wayne Counties (and sometimes Lapeer, Livingston, and St. Clair Counties, as well).

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2019/08/Checklist-1.2-300x232.jpgThere are, of course, many more things that go into finding the right lawyer for your case than the 3 we’ll go over here. Money is one of them.  Although we won’t be examining the subject of legal fees in this article, price is a big deal for some people.  Without going too deep into it, the simple fact is that is that what a person cannot afford is a limiting factor in the kind of representation he or she can have. The reality is that you’ll need to fork out more money for a better grade of lawyer

As with any kind of goods or services, you have to pay up to step up. Whatever else, you’ll never get top-shelf legal representation for cut-rate prices. In that context, the term “affordable fees” is a term almost exclusively used by lawyers competing for business at the bargain end of the legal spectrum. That said, however, it is important to point out that you can very easily wind up paying way too much for mediocre services, as well. In other words, high fees don’t necessarily equate to high-quality legal help. Paying a lot doesn’t, by itself, mean you’re getting a lot.

In part 1 of this article, we began an examination of the updated wording regarding proper ignition interlock use that is part of every Michigan Secretary of State order granting a driver’s license restoration appeal. The large number of interlock violations makes clear that the state’s directions are not read all the way through, and I suggested moving them to the very front of the order, with clear and bold instructions to read them first. We left off by noting that merely saying it is “advisable” to get a PBT or EtG test after a power failure (tamper/circumvent) or a failed or missed breath test is at odds with the fact that, at a hearing, producing the result of such a test is, for all purposes, expected.

D-300x260My team and I deal with the problems caused by the state’s use of this indecisive language (‘advisable”) all the time, in real hearings. One of the first things most hearing officers will ask if a person has a failed or missed rolling retest is whether or not he or she got a PBT or EtG test. If a person says “no,” then they’ll be asked, “why not?” Most often, the person will try and explain that they weren’t clear on the need to do that right away, or just had forgotten. Then they’re asked the most dreaded question of all: “didn’t you read your entire order?”

The hearing officers are lawyers and work as administrative law examiners (another way of saying, administrative law judges). Their main function is to evaluate and rule on the evidence in license appeal and violation cases. The legalities and nuances involved in these cases makes perfect sense to lawyers, like me, but when a regular person, who has been driving on the interlock for several months without any issues, suddenly encounters a problem, he or she doesn’t start thinking about the “burden of proof” required to win a hearing, or, what kind of evidence should I be getting together?

A number of years ago, I wrote an article about ignition interlock violations that included the directions then provided by the Michigan Secretary of State in all orders granting a restricted license after a successful driver’s license restoration appeal. It’s time to update that, because the language of those directions has changed since then. Although this article will reprint the updated language, it’s hard to overlook the inherent irony at work here, because, by the time most people start looking for ignition interlock information, it’s because they’ve already had some kind of problem with the unit.

page_jqd3w7-285x300The instructions in each winning order lists the things that should be done if a person has a power loss (listed as “tamper/circumvent”), misses a test, or provides a positive breath sample. Even if it’s too late for those recommended PBT or EtG tests (see below), there may be enough time left to take other remedial action in order to challenge a violation. Whatever else, any problems are going to have to be satisfactorily explained to a hearing officer, whether at a violation hearing, or when a person files for full, unrestricted driving privileges. Much of this could be made better if the state fixed the language and placement of the interlock use directions.

As a result of handling so many interlock violations, one thing that’s crystal clear is that many people simply do not read, or at least thoroughly read, and then remember, the instructions for proper ignition interlock use in the order they receive informing them that they have won a license appeal. It seems painfully obvious that the Michigan Secretary of State needs to move the instructions for proper interlock use from the back of the order form that accompanies a winning license restoration appeal, where it’s put now.

In part 1 of this article, we began an examination of indecent exposure and aggravated indecent exposure cases in Michigan, noting that there has been an increase in aggravated (felony), over simple (misdemeanor) indecent exposure charges. After comparing the 2 IE offenses, we saw how both jail and sex offender registration was highly unlikely, and that most of the time, a guy will pick up one of these charges because he’s blowing off some steam, rather than because of some underlying “problem.” Here, in part 2, we’ll begin by looking at situations where there actually is some kind of issue to be addressed.

ert-300x240Although most IE cases DO NOT arise because of some kind of mental health issue, there are times when it can be a symptom of either an existing or potential problem, and it falls to the courts to figure out if that is or isn’t the case, and, if so, to take the appropriate remedial action. In that regard, the 2 of the biggest risks for problems are that the person is inclined toward exhibitionism, or worse yet, does suffer from some kind of sexual deviancy problem, and needs help.

If a guy has exhibitionist tendencies, then he (or she, but it’s almost always a “he”) needs to get that under control so as not to reoffend. As much as the exhibitionist may enjoy flashing, most of those who are flashed consider themselves victimized, and don’t enjoy the experience. It’s one thing for a guy to join a nudist colony, where nobody is offended by letting it all hang out, but it’s another to corner some young mom with kids in a quiet aisle at Target and freak her out by shaking his penis at her (and yes, we had a case just like that).

My team and I handle a lot of indecent and aggravated indecent exposure cases. For the last decade, more of these cases have been brought as the felony offense of aggravated indecent exposure, while the number the misdemeanor (simple) indecent exposure charges has simultaneously decreased. Also, and in the spirit of accuracy, it’s almost always men facing indecent exposure or aggravated indecent exposure charges (from here on, I will often refer to either or both as “IE”.) In this 2-part article, we’ll take a look at both offenses, and see how these cases work out in the real world.

Desp-300x240The very fact that we see less simple indecent exposure charges and more of the aggravated variety makes a good starting point. Just as about everything goes up in price over time, it seems that criminal laws always get tougher. Criminal offenses are easy targets for politicians, because there is never any partisan divide over wanting to protect the public by cracking down on drunk drivers, flashers, or the like. Being tough on crime looks good on anyone’s resume, and nobody wants to be seen as “soft.”

The key difference between the 2 IE offenses is that simple indecent exposure is a misdemeanor offense that carries a maximum penalty of up to 1 year in jail, whereas aggravated indecent exposure is felony carrying a maximum term of 2 years in prison. Before anyone starts freaking out, however, let me be clear: my team and I have handled countless IE cases, and we have NEVER had a client go to jail or prison as a result of being convicted of either one of them. This sounds a lot worse than it is.

In parts 1 and 2 of this article, we looked at testing in a Detroit-area DUI case. In part 3, we began an examination of the role of education, counseling or treatment in drunk driving cases. The term “education” was used to mean something simple, like a class, or a few classes, while “counseling” was defined as a step up from that, with “treatment” being the most involved of all measures, often involving multiple facets, and often including counseling among them. We’ll pick up where we left off, noting that, even though it is required to do so, the court system is ill-equipped to diagnose and treat alcohol problems.

abbabababa-300x230Two of the most important aspects of my job, and that of my team, is, on the one hand, to protect our clients from getting hammered with unnecessary counseling or treatment, while, on the other hand, making sure that any rehabilitative measures that are ordered match the needs of that particular client, at least to the extent possible within the system. Remember, we operate on the principle that success in a DUI case is best measured by what does NOT happen to you.

The idea of sending someone for the kind of help that is a good fit for him or her, as opposed to cramming them into something that just isn’t “right,” is a very important aspect of helping people, and is often overlooked, especially by the legal system. As many people as it has helped, AA is not the only program out there. One might think so, however, because many meetings are filled with people there to get their attendance sheets signed after having been forced to go by some Judge or other. That’s no good.

In parts 1 and 2 of this article, we looked at the role of testing in a Tri-County area DUI case. Here, in part 3, we’re going to start exploring alcohol education, counseling, and testing, because at least one of these things is almost certain in every 1st offense DUI case, while either counseling or treatment is required in every 2nd and 3rd offense case. We’ll use the same standard – that success in a DUI case is best measured by what does NOT happen to you.

AdobeStock_157909746-1024x683-300x261It was Benjamin Franklin gave us the sage advice that “an ounce of prevention is worth a pound of cure.” Sometimes, however, it seems the courts take that a bit too far. Like alcohol testing, the idea that it’s better to be safe rather than sorry is a given in DUI cases, meaning that, as a preventative measure, a person will have to complete some kind of education, counseling or treatment for almost every 1st offense DUI case, while counseling and/or treatment is a legal requirement for anyone convicted of a 2nd or 3rd offense.

The educational/rehabilitative part of the DUI process is so important and universal that it was one of the motivating factors for me to formalize my education in this area, and complete a post-graduate program of addiction studies. I firmly believe that this is one of the most “influenceable” features of DUI cases, and is, without a doubt, where lawyer with my special background can help a client the most, making sure he or she doesn’t get hammered with unnecessary (or the wrong kind of) counseling or treatment. Remember, in the context of a DUI, less is always more.

In part 1 of this article, we began an examination of the 2 things everyone going through a DUI will be required to do: breath and/or urine testing for drugs and alcohol, and some kind of classes, counseling or treatment. After a brief history lesson, we ended with what I consider the gold standard for DUI lawyers – that success in a DUI case is best measured by what does NOT happen to you. No matter how else you put it, the job of a DUI lawyer is to protect the client from as many consequences as possible, and that includes testing, which we’ll examine in this segment.

drug-test-for-prescription-drugs-155276569-5b1c0a320e23d90036424b73-300x258To really understand how and why alcohol testing is used as it is today, we have to step back in time, a little more than 20 years ago. Back then, a person facing a DUI here, in the Greater-Detroit area, was usually not specifically ordered to abstain from alcohol (or drugs) while the case was pending, as a condition of bond. Up until the mid-1990’s, nobody had even heard of, much less used, any kind of “testing,” to make sure that a person didn’t drink while waiting for his or her case to be resolved.

If, by some chance, a person was ordered to not drink while the case made its way through court (and for a long time, this was far more the exception, rather than the rule), there was really no way to verify if they were or weren’t, and about the only way a person could get caught violating it is if he or she had some kind of police contact (like an arrest for another case involving alcohol) and/or it was otherwise documented that he or she had been drinking.