Michigan Criminal Lawyer Blog

Articles Posted in Driver License Restoration

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In Michigan, a common sanction by both the courts and the Secretary of State is the required installation of an interlock ignition device on the defendant’s (or petitioner’s) automobile. Colloquially referred to as a ‘blow and go’, these devices can be a tremendous headache for those required to install them. In our experience, there are a number of situations where these devices are compelled to be installed on our clients’ vehicles. These scenarios include;

– A ‘superdrunk’ conviction,
– Certain drunk driving convictions with aggravating circumstances,
– As a mandatory condition of a restricted license upon a successful license appeal,
– And certain crimes which may have resulted from an underlying drinking problem.

1) What is an interlock ignition device?

The cell-phone sized device is installed so it connects to an automobile’s ignition system, usually inside of the glove compartment. After installation, the driver is must blow into the device before the car will start.

2) Where can these devices be installed and how much do they cost?

Many locations in Southeast Michigan offer install services for the ignition interlock device:

American Interlock 800.580.0504 Michigan Interlock, LLC 888.786.7384 National Interlock Service 888.294.7002
New Horizon Interlock, Inc 800.597.5054 Smart Start Michigan 888.234.0198
Prices vary from company to company, but range from $50 to $200, based upon the make and model of the car. The device also holds a monthly rental fee, which can be as high as $100.00.

3) How do these devices work?

According to igntioninterlockdevice.org, the driver blows about 1.5 litres of air into the device, which is located on the car’s dashboard. Drivers can also be subjected to “rolling tests”, which require the driver to use the device once the car is moving. If the driver fails one of these “rolling tests” the device sounds a warning, which may consist of flashing lights or honking horn and will sound until the ignition is turned off (the ignition will not automatically shut off while moving). Each device contains a computer chip, which requires monthly downloads. The information is sent to the overseeing court and analyzed for blood alcohol content levels as well as attempts at tampering with the device.

4) When required by the State in a driver’s license restoration case, what will result in a violation?

The State of Michigan has divided violations into two main categories:

Minor Violations

-After the trial period, the driver fails three start-up tests (car will not start)
-If the driver fails to have the device serviced within 7 days of his/her scheduled date
Major Violations

-Failure of a “rolling test”, which is either failing to take the test when prompted or the result is greater than 0.25% and a subsequent sample is greater than 0.25%
-An arrest or conviction for drunk/drugged driving -Tampering with the Blood Alcohol Ignition Interlocking Device -Circumventing the device, by allowing a passenger to blow into the device -Three minor violations within the monitoring time (required time for device to be installed)
-Removing the device without having it re-installed within 7 days (unless Secretary of State approves)
-Operating a vehicle without a properly installed device
In the State of Michigan, a minor violation will result in a three-month extension before another driving license appeal can be requested. Major violations will cause the original driver’s license revocation to be immediately reinstated, which means the driver will no longer be able to operate any vehicle, even with an ignition interlock device installed.

5) Are these devices reliable?

Despite widespread implementation of ignition interlock devices many have doubts as to their reliability. Significant issues arise out of false positive results, which could be caused be a number of daily-use products. They include mouthwash (because of its minimal alcohol content), some medicines, and even some beverages.
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If you spend enough time in the back of a court room you will hear a few common explanations for positive drug and alcohol tests. Often when faced with a probation violation (or show cause while on bond, or if you are appealing to get your license back) defendants/petitioners will attempt to offer an innocent reason for their positive test. What defendants often do not know, that practicing attorneys do, is that Judges have heard it all. While our strategy varies from case to case – we advise that our clients NEVER* to use the following explanations when standing in judgment. Probation violation hearings are oftentimes much more serious than the underlying charge, as the Court will view the defendant as somebody who has been unable to prove themselves. Further, the sentencing Judge has the authority to sentence defendants to the maximum term of incarceration for the underlying charge. Beneath are some common excuses that come up in court. I’ve done some basic research into each of these explanations to see if they are at all supported by science, unfortunately it seems that they are not.

Excuse #1: ‘It Was Secondhand Marijuana Smoke’

When defendants test positive for THC they will sometimes tell the Judge that it was merely secondhand smoke. The Wikipedia page on drug tests (which has a wealth of other relevant information) states that “[t]his legend is technically true but highly misleading.” In order for a test to be positive from secondhand smoke one would have to be in a small unventilated space for hours with marijuana smokers. Based on this, it seems that somebody who is by marijuana smoke for a short amount of time would not have THC levels to yield a positive test. The possibility of a positive test aside, Judges hear this excuse all of the time and know it is just that. Dishonesty will always put you in a worse position than where you started.

Excuse #2: ‘The Cocaine Seeped Through My Skin’

Though a somewhat more isolated excuse, this still comes up time and time again. Karch’s Pathology of Drug Abuse indicates that a positive drug test from this type of exposure is unlikely unless dealing with a large quantity of cocaine. No surprise that Judges do not buy into this explanation. Beyond the fact that it most likely isn’t true, there isn’t a solid legal reason to be handling a large quantity of cocaine. As advised above, this is a defense that will get you nowhere and if anything will set you back should you use it before a Judge.

Excuse #3: ‘I Was Drinking Cough Syrup’

Perhaps the most common of all of the excuses, when defendants test positive for alcohol they often say that it is from drinking cough syrup. I couldn’t figure out the exact amount, but alcohol is listed as an inactive ingredient in Nyquil. Some sources stated as low as 10% and some as high as 25%. Nyquil can cause a positive alcohol test. However, it would seem that one would need to drink a large quantity to have a positive BAC or drink cough syrup immediately before blowing. MOST OF THE TIME, this excuse does not hold up. Oftentimes Judges see through this smoke screen and view the defendant as being dishonest and uncooperative. Further, a term of probation is typically no consumption of alcohol, because there is alcohol in some cough syrup this is a straightforward violation. HOWEVER, in some instances (specifically in license appeals at the DLAD) we have been successful in bringing this defense where there is corroborating evidence and/or a doctor’s note.
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bus.jpgAlmost every week a very familiar scenario plays out in our office. A client will come in, sit down for a consultation, and discuss with us the facts of his or her license revocation history. Many times it will be the instinct of one of our Firm’s attorneys that the client had a winnable case. However, the catch is that they didn’t win, and in many instances have created a mess for themselves that will take years, literally years, to unravel. Why didn’t this client win?

Oftentimes it is because they appealed their license revocation unrepresented, assuming that it was a simple and straightforward procedure. Further, it is often assumed that the hearing officers will summarily rubber stamp petitioners with a license after they wait their year. This is very much not the case. License appeals are substantively and administratively complex, and oftentimes become unmanageable for people who do not retain the assistance of an attorney. The stakes are high, losing an appeal typically results in an additional year revocation. Moreover, any inconsistencies stated in an initial hearing will come back to haunt the petitioner in future hearings. Losing a DLAD appeal means that the petitioner will have to continue asking friends and family for rides, or risk breaking the law and driving without a license. Beneath are some common mistakes that petitioners make when appealing their revocations without the assistance of counsel.

Procedural Mistakes

The DLAD has strict procedural guidelines for filing these appeals. Often unrepresented petitioners will miss deadlines, file the wrong documents, or fill out documents/background letters incorrectly. When you have a case with strong facts (IE over one year of demonstrated sobriety) it is a waste to wait an additional year because of a procedural mistake.

Substantive Mistakes

Without counsel, petitioners will often make substantive mistakes. Most commonly, petitioners who have not met the one year of mandatory sobriety will disclose that they have consumed alcohol in the last 12 months. We always counsel clients to wait that year, and will assist them in finding programs and counselors to assist them with their sobriety. Further, unrepresented petitioners tend to get nervous, and put inconsistencies on the record because they buckle under the pressure. A first hearing is intimidating, and that pressure can often cause a petitioner to lose his or her cool, become mentally unorganized, and forget vital dates – thus making a winnable case a loser.

Our Program for Getting You Back On the Road

Our law firm has a comprehensive program for getting petitioners back on the road. From our initial consultation we look at all the facts and organize them to avoid both procedural and substantive mistakes. Our firm has appeared on hundreds of license appeals and has a streamlined process for gathering and filing the documents, thus eliminating confusion on behalf of the client. Further, in our representation we include a mock hearing where you and one of the Abdo Law attorneys will go through the questions that will be asked at the hearing. The goal is to reduce anxiety and eliminate as much as possible the element of surprise in the hearing room.
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If a revoked driver (habitual violator of Michigan drunk driving laws) meets the burden of proof by clear and convincing evidence and wins at the first Driver’s License Appeal Division (DLAD) hearing, he or she will be allowed to drive a vehicle subject to restrictions and with an ignition interlock device. The driver will be able to drive on a restricted basis during certain designated hours or for a designated purpose, such as employment and/or education. In addition, the ignition interlock device must be installed for a minimum period of 1 year on the vehicle which is operated by the person. The ignition interlock is an alcohol monitoring device which requires breath samples of a person while one is operating a vehicle. The purpose of the ignition interlock device is to measure the bodily alcohol content (BAC) of an intended driver and to prevent the motor vehicle from being started if alcohol is detected.

If a revoked driver loses at the DLAD hearing, he or she will have 2 options: wait until he or she is eligible for another hearing before the DLAD (which is usually 1 year) or appeal the decision by the DLAD to the circuit court. Neither option is as satisfying as winning, yet there is hope that the person will improve his or her case for the next hearing and get back on the road.

If the party feels that the decision by the DLAD was erroneous, he or she may file an appeal in the circuit court in the county where the person resides. The circuit court judge cannot hear any new evidence and is required to limit the appeal based upon the transcript and evidence submitted at the DLAD hearing. A circuit court appeal can occur no sooner than 60 days after the DLAD hearing because a copy of the transcript must be ordered and provided to the circuit court judge. The DLAD is represented at the circuit court appeal by a representative from the Michigan Attorney General’s Office. A circuit court judge can overturn the decision by the hearing officer if it is: not supported by competent, material and substantial evidence on the whole record, and/or, arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion. In addition, a circuit court judge may deny your appeal or remand your case to the DLAD for an earlier hearing.
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The final step in the Michigan driver license restoration process is the appearance at the hearing with your lawyer. The revoked party will be required to provide sworn testimony before the hearing officer. We like to meet with our clients at least 15 minutes prior to the hearing to review pertinent questions and become comfortable with the surroundings.

The hearings are held in many locations throughout the State of Michigan. Our firm regularly appears at the DLAD hearing locations in Clinton Township, Livonia and Port Huron. The hearings held at the Livonia DLAD are “live” hearings while the hearings in Port Huron are closed circuit video conference hearings. A party can present additional documentation-evidence on the day of the hearing at the Livonia location but not at the Port Huron location. All evidence must be submitted before the hearing at a location which employs video conferencing.

A hearing will be held in a small office with your attorney and a hearing officer in attendance. The hearing officer is an attorney who works for the Michigan Secretary of State. For all purposes, the hearing officer is the judge and jury. It is our job to present all of the evidence and testimony in an organized and persuasive manner. In addition, a closing argument to sum up the evidence and testimony presented at the hearing is often made after all of the proofs are presented. The hearing officer cannot award a restricted license to someone unless the burden of proof is satisfied by clear and convincing evidence.
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When we meet with someone for the first time to discuss a new license restoration case, we take our time to review their substance abuse history, driving record, counseling history, lifestyle changes and plan for continued sobriety. Each person has distinctive circumstances and we handle driver license restorations on a case by case basis. Given that each driver license restoration case is one-of-a-kind, we may decline to represent a client who does not have a sufficient period of sobriety or advise the person to make specific improvements before we will go forward. If necessary, we may advise our clients to become involved in a relapse prevention program, attend AA or counseling for a few months before he or she obtains a substance abuse evaluation and other documentation.

After being retained for persons that we feel will meet the burden of proof, we will advise our client to get a substance abuse evaluation, drug test, character letters and other important documentation. In addition, we provide our clients with a template for the required character letters and recommend local licensed counselors who are best suited to provide the required substance abuse evaluation.

Our job is to provide the documentation to the Driver License Appeal Division which will be used as evidence in the case and prepare our clients for the actual hearing stage of the case. In my opinion, the documents which are strategically selected provide an organized foundation for the hearing that will follow. When we receive all of the requested documentation/evidence, we will request a hearing. It usually takes 30 to 60 days for our clients to gather all of the required documentation.

The hearing date is scheduled by the DLAD from 4 to 6 weeks after it is requested. A notice of the hearing date will be provided by mail to the petitioner and attorney.
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Our attorneys place a great deal of emphasis on the planning and preparation stage of a Michigan driver’s license restoration case. We prepare a driver’s license restoration case based upon several factors including one’s substance abuse history, diagnosis and prognosis. A large part of planning is organizing the evidence and prioritizing documents which will be submitted to the Driver’s License Appeal Division (DLAD). The evidence which is utilized will vary depending on whether a person is diagnosed as an alcoholic/dependent or an abusive drinker. It is important that a person understand that all evidence submitted for the purpose of a DLAD hearing, including all testimony, will be retained and recorded by the DLAD, and may be used in future hearings.

We are often able to find past documentation that may seem useless such as random alcohol/drug testing results, prior substance abuse evaluations or verification of counseling. On the other side, inappropriate documents or letters which are submitted to the DLAD can cast doubt on the case and devastate any chance of a license restoration for several years. Initially, our firm will ask for certain documentation to prepare for a DLAD hearing, including the following:

We need to obtain the lifetime history of drinking and driving cases along with all prior substance abuse offenses of the person seeking a license restoration. Therefore, obtain a master driving record from a Michigan Secretary of State office along with any other documentation pertaining to past criminal convictions which involve alcohol or drug crimes before you meet with an attorney. The DLAD will question a revoked person about all prior substance abuse convictions, including non-driving offenses such as minor in possession of alcohol (MIP) or possession of marijuana.

2. OTHER DOCUMENTS: Save all documentation from prior court cases, probation departments, counseling records, AA sign-in sheets and letters from the Secretary of State. We are usually able to find positive documentation which we will use as evidence in one’s case.

If you take prescription medications for sleep, depression or pain, we will ask for you to obtain a letter from your doctor regarding your ability to drive safely upon use of these medications.

A substance abuse evaluation is required and is the cornerstone of a DLAD hearing. The evaluator is required to include many variables relating to a person’s substance abuse history, diagnosis and prognosis for continued sobriety. The evaluator must also comment as to whether the offender’s likelihood for continued sobriety is poor, fair, good or excellent.
The evaluator may perform some tests before the report is finalized. One of the tests utilized is called the Michigan Alcohol Screening Test (MAST). Click here for a look at the MAST testing questions.

5. DRUG SCREEN: A 10 panel drug screen is also required for a DLAD hearing. The evaluator is often is able to obtain a urine sample and provide the drug screen along with the Substance Abuse Evaluation.

Part 1: Michigan License Restorations, Building A Mountain With Positive Evidence
Part 2: Michigan License Restorations, Initial Preparation Part 3: Michigan License Restorations, Getting Organized, Reviewing Questions
Part 4: Michigan License Restorations, The Hearing
Part 5: Michigan License Restorations, The Decision By The DLAD and Appeal Rights


This is part 1 of a 5 part series which is dedicated to the topic of driver’s license restoration cases in Michigan. In this extensive series, I provide insight as to how our attorneys build a strong foundation of positive evidence which will moderate or diminish the bad choices that resulted in a license revocation. In Part 2, I explain some preliminary matters and documents which are necessary in a driver’s license restoration case. In Part 3, I discuss the stage where we will organize documents, schedule the hearing and review pertinent questions which will be asked at the hearing. In Part 4, the hearing stage of a Michigan driver’s license restoration case is examined. In Part 5, I discuss the possible decisions by the hearing officer and the appeal option to circuit court for a person who loses a Driver License Appeal Division (DLAD) hearing. Our Macomb County lawyers are able to provide this information after many years of representing clients before the DLAD who have a license revocation due to multiple drinking and driving convictions.

The process to restore a license in Michigan is complicated. Most of our clients have waited several years before taking the first step in the Michigan driver license restoration process. In addition, we know that they have paid thousands of dollars to the courts, attorneys, substance abuse counselors and to the State of Michigan. Many others avoid the appeal process altogether because of misconceptions, financial problems or other obstacles. All too often we meet clients who are eligible for a Michigan license restoration but they continue to drive illegally resulting in extended periods of revocation. This is why a person who is eligible for a hearing before the DLAD should consult with a qualified lawyer to discuss his or her rights. Often, our firm will take on proactive clients several months before the eligible hearing date. We use this time to provide a client with relevant advice, planning and a strategy so that we are well prepared when the minimum revocation period expires.
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police-chase[1].jpgIn one of my prior posts, I added a link to the The Michigan Traffic Offense Code. This link contains a complete list of all Michigan traffic offenses along with penalties, points and license sanctions.

Although many traffic offenses in Michigan are civil infractions, there are numerous others that are classified as criminal misdemeanors or felonies. All criminal offenses have the potential for jail and require an appearance before the judge. You should hire a lawyer immediately if you are charged with a criminal traffic offense. Virtually all offenses involving alcohol, driving on a suspended license, leaving the scene of an accident or engaging in a police chase are criminal offenses.

The following is a partial list of Michigan criminal traffic offenses which we have defended in Macomb, Oakland and Wayne County including the district courts located in Royal Oak, Clinton Township, Warren, Sterling Heights, Romeo and Shelby Township:

1st Degree Fleeing and Eluding: Felony which involves the act of fleeing the police resulting in a death. Maximum Punishment: 15 years in prison and/or $10,000.00 fine.

2nd Degree Fleeing and Eluding: Felony which involves the act of fleeing the police resulting in a serious injury or the defendant has a prior offense for fleeing fourth degree. Maximum Punishment: 10 years in prison and/or 5,000.00 fine.

3rd Degree Fleeing and Eluding: Felony which involves the act of fleeing the police resulting in an accident or where the defendant has a prior offense for fleeing first, second or third degree. Maximum Punishment: 5 years in prison and/or $1,000.00 fine.

4th Degree Fleeing and Eluding: Felony which involves the act of fleeing the police resulting in an accident or where the defendant has a prior offense for fleeing first, second or third degree. Maximum Punishment: 2 years in prison and/or $500.00 fine.

Leaving the Scene of a Personal Injury or Property Damage Accident: Misdemeanor, 6 points All drinking and driving offenses in Michigan (operate while intoxicated-OWI, impaired driving-OWVI, operate with the presence of drugs-OWPD, super drunk-BAC of .17% or greater, child endangerment, zero tolerance-minor with any BAC) are all classified as criminal offenses. A third lifetime drunk driving (OWI, OWVI, OWPD, DUI) offense is charged as a felony which can carry up to 5 years in prison.

traffic-police-colour[1].jpgThe Michigan Traffic Offense Code contains a complete list of all Michigan traffic offenses along with penalties, points and license sanctions. This is an excellent reference for you to keep with your favorite links.

Traffic offenses can be classified as civil infractions or criminal. For example, tickets for speeding and disobeying a traffic control device are always civil infractions in Michigan.

Points for Speeding Tickets
1 to 10 mph over limit 2
11 to 15 mph over limit 3
Over 15 mph over limit 4

When you get a ticket, points are added to your Michigan Driving Record which can result in driver responsibility fees and increased insurance costs. In addition, if you accumulate 12 or more points, your license will be suspended. Anyone getting a ticket should get a traffic defense lawyer to review all possible options. The avoidance of points has a huge economic benefit as far as motor vehicle insurance costs are concerned.

When you hire a lawyer, the case can be scheduled for a conference and your lawyer will have the opportunity to discuss the case with the prosecutor or city attorney. All of the district courts in Macomb County, and most of the courts in Oakland and Wayne County, will consider amending tickets to lesser offenses. Having experience in all Macomb County District Courts from the 37th District Court for Centerline and Warren, the 41-A District Court in Sterling Heights and the 41-B District Court covering Clinton Township, Mount Clemens and Harrison Township, I can say that each has a reasonable attitude towards resolving traffic tickets especially where the offender has a good driving record.

Most of the time, an attorney can negotiate for reduction of the ticket which usually means less points. When this occurs, the ticket is amended to an offense such as “impeding traffic” which is a zero point violation and does not appear on the driving record. A fine is usually imposed in the amount of approximately $150.00. If the party fighting the ticket has a bad record, the prosecutor or city attorney may agree to reduce the ticket if the offender attends traffic school. If there was an accident, a victim may object to the reduction.

I will be posting another guide which covers criminal traffic offenses in Michigan.