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Troy MI License Restoration Blog

Wednesday, May 27, 2015

The Practicality of Plea Bargain Agreements

Can a Guilty Verdict on a Lesser Charge be seen as a Win?

Depending on the circumstances and the charges, you may be able to avoid a more serious DUI charge by pleading guilty to a lesser charge.  This is known as a plea bargain agreement and is widely used in the criminal justice system. If evidence supporting a more serious charge is weak and a defendant does not want to risk a conviction, a defendant and prosecutor may agree to dropping that charge in exchange for a guilty plea to a less serious charge. If no such agreement can be worked out, the case will go to trial.

Former Detroit Lion Nick Fairley was acquitted of a DUI charge in an Alabama but was found guilty of reckless driving and fined $500 in February, according to the Detroit Free Press. "I feel great," he is quoted as saying. "Right now this is behind me, and I want to move forward." He did move forward after the trial, signing a $5 million (up to $8 million with incentives) contract with the St. Louis Rams in March, according to ESPN.

Fairley was arrested at a May 2012 traffic stop after he drove an estimated 100 M.P.H. Evidence of intoxication was mostly circumstantial because he refused to take a blood alcohol test after his arrest. During this high-profile case, the following was presented to the jury: 

• The arresting officer testified that he observed Fairley speeding and he pursued him for nearly three miles before he pulled over. 

• The officer told jurors that Fairley was obviously impaired and admitted to drinking and driving after he was pulled over. The officer stated he could smell alcohol through the vehicle's open window. 

• Fairley’s fiancé was in the vehicle at the time and contradicted the officer’s testimony, stating the smell was from open cups of alcohol.

After a DUI trial you may not be in a position to sign a multi-million dollar contract like Fairley, but if afterward the penalties you face are only a fraction of what they could have been if convicted on all charges, you may feel like a million bucks.

If you are in need of the DUI defense attorney, call the Law Offices of Martin Lievois in Troy at 248-419-1566 or in Flint at 810-250-4550 to discuss the situation, evaluate your case and talk about your options.


Wednesday, May 13, 2015

Avoiding Contamination: Understanding Chain of Custody Concerns in a DUI Case

I was recently charged with a DUI in Flint, Michigan. However, I have concerns over how my blood sample was handled. Could this contribute to my defense? 

Under Michigan law, laboratory technicians are required to carefully handle and document all specimens from the moment of collection until the final day of trial (and often for a period of time thereafter as well). This concept, which is known as “chain of custody,” often comes into play with regard to defendants charged with driving under the influence, particularly in light of the often-shoddy attempts by law enforcement and forensic examiners to cover up deviations from proper chain of custody protocol. Accordingly, any act of misconduct or omission by a laboratory responsible with handling your post-arrest blood sample could result in a suppression of that evidence – and possibly a total dismissal of the charge.

Chain of custody rules are primarily concerned with the purity and reliability of the evidence, which will be ultimately used against the defendant and could result in loss of liberty. As such, judges will immediately disallow the introduction of any biologic evidence against a defendant if that evidence is tainted, altered, or degraded in any way. Consequently, the law requires that all transfers of the evidence – even within the same lab – are properly documented and identify where the evidence came from, who handled it, and where it is currently located. 

In the context of post-DUI arrest blood sampling, blood serum can become quickly degraded if not properly handled. Moreover, the prosecution must lay a sufficient foundation to show that a reputed individual handled the sample, including: 
* Identification and qualifications of individual responsible for taking the blood draw
* Explanation of the time period between the arrest and the subsequent blood sample
* Proof that proper instrumentation was used, and that all instruments were sterile
* Proof that the sample was properly labeled and stored
* Identification of the individuals responsible for supervising the sample in storage

If any of these elements are missing, your Michigan criminal law attorney may be able to successfully motion for a suppression of the blood alcohol content results, which could work to eliminate your exposure to conviction depending on the facts surrounding your arrest. 

If you were recently arrested for a DUI in Michigan, contact Attorney Martin T. Lievois right away by calling (810)250-4550 in Genesee County or (248)419-1566 in Oakland.


Wednesday, April 29, 2015

POLICE DASH CAMS AND DUI: THE ROPE THAT HANGS OR SAVES

I cannot tell you how many times clients have sat in my office to dispute the facts of a stop by police. Before a police officer can pull someone over they must be able to point to/articulate some violation which warrants the stop. The reasons I see in many police reports repeat familiar patterns; swerving within his lane, failure to use a turn signal, paced speeding, failure to dim headlights, etc..

On the occasion where the pretense for the stop is contested, the police dash cam can shed light, and therefore clarity, on the situation. The police car dash cam obviously is located on the cars dashboard and records all activity which takes place in front of the vehicle. This device however does not record sound. The officers are wired with microphones on their vests which perform this task.

In the past, the basis for the stop was established by the police report and corroborated later by the police officer testifying as to the accuracy of his report; which was, in his mind, always very accurate!

The dash cam removes the necessity of relying only on the officer’s report and testimony.

However, as usual, this is not a fail-safe solution. It seems, and maybe call me pessimistic, but in many cases where the integrity of the stop comes into question, oh, what do you know, THE DASH CAM WASN’T TURNED ON!! Or THE DASH CAM WAS BROKEN!! Or MY MICROPHONE WASN’T TURNED ON….

Yes, the system is not perfect but it is better.

When field sobriety tests are administered and taken by the defendant, it is the officer that determines whether or not the individual passed or failed. The dash cam, assuming it is on, takes all subjectiveness out of the equation. And, when the conversation, in the client’s opinion, was inappropriate, the officer’s microphone will be able to shed light on that also. And, when it was inappropriate, often times this can open the door to negotiations that normally would not be on the table.

When it comes to exploring these issues, you need an attorney that knows that these devices are available to demand and review. Many don’t. Or, even worse, because they set their fees so low just to get the case that they don’t feel that it is cost effective to go through the trouble. Don’t hire one of these guys. Don’t hire the lawyer that did a great job on a divorce of a friend, or the attorney that was really nice that did your living will.

All attorneys are not proficient in all areas of practice!!

In 25 years of criminal practice, I have dealt with hundreds of drinking/driving cases. I explore every angle for reduction/dismissal of charges, and better yet, I know the angles that are there and how to investigate them.

When you have been charged with drinking and driving call the Law Offices of Martin Lievois in Troy at 248-419-1566 or in Flint at 810-250-4550 for a comprehensive evaluation of your case.

Thursday, April 23, 2015

Habitual Offender Appeal Rights Under Michigan Law

The Secretary of State (DAAD) denied my request for license restoration. I'm considered a habitual offender; can I appeal this decision? 

Under Michigan law, the Secretary of State (more specifically the DAAD; Driver's Assessment and Appeals Division of the Secretary of State) determines whether a habitual offender is eligible to have his or her driver's license restored. For certain crimes, including repeat DUIs, a license revocation is mandatory and can last for a minimum of one to five years. However, the law does not mandate an indefinite license revocation, and drivers may be able to restore their driving privileges following a revocation review and reexamination. Unfortunately for some, the restoration attempt may not be successful, and the Department may order a continued period of revocation. In this situation, the petitioner may seek an appeal of this decision through a Michigan Circuit Court, which maintains exclusive jurisdiction over revocation appeals. 

To appeal the decision, the petitioner must submit a Petition for Reinstatement no later than 63 days from the entry of the Department’s decision regarding the revocation. In the Petition, the petitioner must give his or her reasons why the Department’s decision was invalid or unlawful, and the Circuit Court may overturn the Department’s final order only upon a showing of one or more of the following: 
 The Department’s decision was unconstitutional
 The Secretary of State exceeded its authority
 The decision was rendered based upon flawed procedure that placed a great hardship on the petitioner
 The denial was not supported by substantial evidence
 The Department’s denial was arbitrary or an abuse of power
 The denial was affected by a substantial error of law.

Unlike an administrative hearing where a petitioner may enter evidence and testimony, a Circuit Court appeal is limited to the record only. This means that the judge will review the evidence and transcripts from the initial hearing and make a determination based solely on this information, and the petitioner will not have an opportunity to present new or additional evidence.

If you are considering an appeal and would like to discuss your options with a knowledgeable license restoration lawyer in Michigan, contact Martin T. Lievois today by calling his Flint, Michigan office at (810)250-4550  or the Troy, Michigan office at (248)419-1566.


Monday, April 20, 2015

GETTING YOUR BAC (BREATH ALCOHOL CONTENT) RESULTS THROWN OUT OF COURT

When a police officer stops a person suspected of drunk driving the officer will administer a number of tests to determine whether there are grounds for an arrest. In addition to “field sobriety” tests, the officer will ask the individual to submit a PBT (preliminary breath test).

These “tests” are used by the officer to determine whether the driver’s ability to drive safely is “impaired” due to the consumption of alcohol. A PBT is not admissible in court to establish blood/alcohol levels but is used as an indicator to lend validity for the arrest.

For purposes of this article, we will focus on what is referred to as the BAC DataMaster.

The BAC DataMaster is a different machine than the PBT. Once the arrest has been made pursuant to the officers roadside testing (including the PBT), the individual will be transported to the station for processing and also to submit another breath sample to be analyzed by  the BAC DataMaster.

The results from this test are admissible in court to establish blood/alcohol levels; but, only if proper procedures are followed.

In order for the results to be admissible, the operator must first observe the person for a fifteen minute period. The observation period is used to make sure that the individual did not smoke, regurgitate, or place anything in his/her mouth.

Although more than one police officer may be used to satisfy the fifteen minute time period, the observation period must be no less than fifteen minutes. Now, this means that when the officer gets you into the station he cannot go about conducting other business, leaving and coming back into the room, etc., and assume that behavior will conform to the rules. And, although challenges can be made as to the “lack” of observation period, most challenges to the fifteen minute rule will arise due to the period not being long enough. Believe it or not, these simple addition mistakes do happen.

Now, the Michigan State Police have new machines called DataMaster DMT. These machines remove operator error with respect to the fifteen minute rule (the new system will abort a test if the start observation time entered would result in the test sequence infringing  on the fifteen minute observation period). However many police agencies still operate with the old BAC DataMaster machines and therefore it can still be an area of concern and possible challenge.

Additionally, it is not clear as to whether all State police posts have the DataMaster DMT machines and therefore it is imperative that the attorney investigate this aspect of the case to ensure the clients rights have been adhered to.

Your drinking/driving attorney must be familiar with drunk driving practice in order to even know that there may be a challenge to the arrest and potentially be cause for your case to be thrown out of court.

For informed representation, call the Law Offices of Martin Lievois in Troy at 248-419-1566 or in Flint at 810-250-4550.

Wednesday, April 8, 2015

WORKING EVERY ANGLE TO GET DRUNK DRIVING CHARGES DISMISSED

Recently, a young lady retained me for representation regarding two charges; one for OWI (operating while intoxicated) and two for leaving the scene of a property damage accident.

During the initial interview with the client she informed me that while at home one night with her boyfriend, she was cleaning up the kitchen while he was working on some flooring in their foyer. She was in her pajamas. It was getting late (1:00am) and the boyfriend finished up and gave my client a kiss goodnight. He claimed she was stone cold sober.

The next thing she knew she was talking to the police at the scene of a property damage accident. Apparently, the client had consumed alcohol, gotten into her vehicle and drove off hitting a liquor store, of all places, and then her vehicle came to rest after bouncing off a telephone pole. She was in her pajamas and bare feet and had no awareness that she had been driving.

Upon further inquiry I discovered that my client had been brutally attacked with a hammer a number of years prior and that she was beginning to experience seizures as a result of the severe head trauma.

After sharing this information with the prosecutor I managed to get the case adjourned in order to compile documentation, get the necessary release of information authorizations signed by my client and delivered to the appropriate care providers. Thereafter, I put together a package outlining all of my clients injuries (none of which were her fault), her recent seizure history with all of the accompanying doctors’ appointments. (She had approximately eight seizures within a four month span and at least eleven doctor’s appointments trying to alleviate the problem.) Many medications were being tested to make the seizures subside with little success.

Regardless of the fact that her seizure problem had not been completely resolved by the time the case was back in front of the judge, the fact that my client was being very proactive in trying to rectify the problem helped, in my mind, with the disposition.

I was able to get a letter from her treating physician stating that one of the side effects of her seizure disorder was the type of blackout she encountered the night of the offense; the fact that she had another seizure while in her doctor’s office the very next day didn’t hurt our case either.

We were able to convince the prosecutor to dismiss the “leaving the scene of a property damage accident charge” (a separate misdemeanor) and amend the OWI (operating while intoxicated) to a non-drinking charge.

With the drinking/driving laws constantly being revised against the driver, it is necessary for the attorney to be creative and willing to go the extra mile to achieve favorable results for the client. There are very few guarantees in life and in the field of drunk driving law, if you don’t at least put forth an effort and provide a reason for an alternate disposition I can guarantee you will not get one.

If you have been charged with drunk driving call me to explore every possible avenue for favorable relief. The Law Offices of Martin Lievois can be reached in Troy at 248-419-1566 or in Flint at 810-250-4550.

Wednesday, April 1, 2015

NOW THAT YOUR LICENSE PRIVILIGES ARE RESTORED HOW DO YOU NAVIGATE ONE FULL YEAR OF IGNITION INTERLOCK

How satisfying it must be to finally have your driving privileges restored. You get the news right after the hearing is concluded, the hearing officer tells you that his order will come in the mail and what to do thereafter. Everything in the world is good! But, pay attention!!! You’re not out of the woods yet.

You now have one full year of interlock waters to navigate.

The reasons why don’t matter as much as the fact that interlock violations are much more prevalent than they were in the past. And, I would imagine there’s nothing more that could ruin your day more  than an interlock violation that could have been avoided with a little bit of effort.

It seems that violations will materialize out of thin air and not always at the most convenient times, but, with a little bit of knowledge as to how to address such annoyances you can be back to your busy schedule with as little interruption as possible.

Hearing officers, as a group are pretty suspicious. They deal with people who desperately want/need to drive and, sometimes will say anything to get driving privileges. So, when violations crop up, part of what may be going through their heads is, “is this one of the people who scammed me and is now getting caught because he’s not really sober?!?”

Actually, a substantial degree of violations are related to interlock company problems and can be resolved by calling them as soon as a problem arises. Otherwise, the best thing you can do if a violation occurs is to go to any nearby police station for a Breathalyzer test. Before you go through the trouble of finding a police station however, try rinsing your mouth with water, waiting five minutes and retrying the interlock device. If you blow zero’s then you should be ok. If there is still a problem with the machine then the police station is going to be necessary.

But what if there is no police station around?? The next best thing to do is to is to go to a lab for an “etg” test. This may have to be done the next day if the lab is not open at the time of the problem. The type of lab I’m referring to is the same type of lab you went to for the ten panel drug screen for the initial DAAD hearing.

An “etg” test will establish the presence of alcohol for the prior three days, so, if you present yourself within 24 hours of the problem, the test should be all we need to resolve the violation.

If the violation is not for the showing of the presence of alcohol (eg. The car showed a loss of power), then documentation showing why power was lost will, at the very least, be necessary. If your vehicle needs repairs, establish whether or not the facility will be disconnecting the power so that you will be able to verify it with the interlock company.

For the most part, violations will be able to be rectified without the necessity of a hearing. But regardless, if you are experiencing problems with your interlock requirements call the Law Offices of Martin Lievois in Troy at 248-419-1566 or in Flint at 810-250-4550.

Saturday, March 28, 2015

HIRING A LICENSE RESTORATION LAWYER IS NO TIME TO BE LOOKING FOR THE "BLUE LIGHT SPECIAL".

For those of you too young to know what a “blue light special” was, it was how one of the major bargain retail stores used to advertise big sales.

Do not go looking for the “blue light special” lawyer when you need your license privileges restored!!!

You may know a fantastic criminal defense lawyer, but does he/she know the first thing about a DAAD hearing?? You may have a friend who had the best divorce lawyer but does that mean he/she knows anything about how to prepare a client for a restoration case; absolutely not!!

The fact is, being a lawyer does not mean you are proficient in all areas of law. A tax lawyer would be like a fish out of water in criminal court and vice verse. Likewise a lawyer who specializes in corporate law would not be the best person to have a trust document drafted for you and your family.

One of the problems here is that when it comes to lawyers usually there is no shortage of ego involved.

That, plus not wanting to let any money slip past their open and outstretched hands often leads them to accept a license restoration case and then “figure it out” on the fly. Not good for the client!!

In a recent article I recalled a client I was “final” prepping just before going into a hearing a few weeks ago; he was very nervous. After a few question and answers I could tell he was calming down a bit but it reminded me that no matter what amount of preparation there is always going to be a natural inclination to be anxious during these hearings; or at least right before. (I find that after the hearing begins and the client starts easily answering the questions put to him either by the Hearing Officer or myself, their trepidation evaporates and he/she actually begins to enjoy telling their “sobriety story”).

The point here is that License Restoration Law is a specialized area of law that has many unique procedural requirements/facets that are learned through experience. There is no room for mistakes.

Not knowing who is a good substance abuse evaluator and who is not could be the difference between a win and loss for the client. Likewise not knowing what specific proofs whatever hearing officer that is drawn looks for is another disadvantage for the client.

Worst of all for the client is that “feeling” that the attorney doesn’t know what he/she is doing. That nervous client I was talking about earlier…he was prepared!! Just think how he would feel if he believed in the back of his mind that his attorney is winging it, or, at the very least does not have a firm grasp of the proceedings.

Remember…one hearing per year. Get the attorney who does DAAD hearings a lot and who does not lose. Call the Law Offices of Martin Lievois in Troy at 248-419-1566 or in Flint at 810-250-4550.

Monday, March 23, 2015

KNOWING THE DAAD HEARING OFFICERS AND WHAT QUESTIONS THEY ARE GOING TO ASK: PRICELESS!!!

Going into one of my hearings last week reminded me of how nervous petitioners get. I got to the hearing location early, it was a nice spring day and I wanted to take a drive through MSU campus.

Even after my drive, I arrived about a half hour before the hearing time and to my surprise my client was already there. As I approached I shook his hand and started going over how the hearing was going to be conducted. I started with who our officer was and what he was all about, and as we were standing there, you could see into the locked off area where the hearings are held; our Hearing Officer Johnson appeared from his hearing room so I pointed him out.

When the petitioner is in my office conducting his substance abuse evaluation with my in house evaluator we eventually get around to e-filing the petition. At that point we are made aware of which Hearing Officer we are going to get. Each one has his/her own distinct style of how they conduct their hearings.

So there we were, standing outside the hearing room area, the walls are all glass so we can see in. As Hearing Officer Johnson walked out of his hearing room and I pointed him out and began, as I said earlier giving my client the skinny about him, I noticed that my client was so nervous that he was nearly shaking; his voice was for sure. I asked, “What was the matter?” To which he responded – just this hearing.

At that point I was reminded that no matter how much preparation we did, for many, there is still a considerable amount of anxiety regarding the actual hearing. Even though I pretty much guarantee we are going to walk out of there with driving privileges, my petitioner is nonetheless aware that he is being judged by the person who makes the decision.

At that very moment, just before we walk into that hearing, regardless of the fact that my petitioner knows all the questions that will be asked of him, how to answer them, how to answer my follow up questions and what not to say; I realize there will still be some stress, I get it….it’s natural. But, at the very least, when the Hearing Officer starts the proceeding with reading all the evidence we have submitted into the record there is a few minute period that the petitioner can relax by  not being put onto the hot seat immediately.

Additionally, when the questioning does start and the petitioner hears the familiar ring of the questions we have already gone over and the answers begin to flow easily, the stress, in large part, melts away. The petitioner starts in with his  question appropriate “sobriety story” that we develop and hone during my office preparation phase. Face it, becoming sober and alcohol free is a challenge and admirable accomplishment and when someone is successful they like to share it, and, I for one, love to hear it. I believe the Hearing Officers do too.

I can only imagine going into one of these hearings without being prepped, as many do when they hire an attorney that does not routinely practice in this area. Pregnant pauses, uncertainty as to how to answer questions and mostly not knowing what questions are going to be asked lends itself to not only to stress and anxiety, but may be construed by the Hearing Officer as being deceptive or making stuff up.

After waiting so long to become eligible to petition for driving privileges, go with someone who is going to give you the best odds of success. Call the Law Offices of Martin Lievois in Troy at 248-419-1566 or in Flint at 810-250-4550.

Friday, March 20, 2015

Driver In Deadly Accident Just Had Driver’s License Reinstated

What requirements does Michigan law impose for reinstatement of a revoked or suspended driver's license?

When a driver's license is revoked in Michigan, getting it reinstated can be an arduous and complex process. The driver seeking restoration of his or her license typically must produce extensive documentation and undergo either a hearing or administrative review.

Government caution in reinstating a driver's license might be understood when considering a recent Michigan accident in which a car struck an ambulance carrying a patient to a hospital. The patient, suffering from cardiac arrest, died moments after arriving at the hospital in a replacement ambulance. The driver of the car, Shirley Ann Stokes, and her passenger were killed on impact.

Ms. Stokes, who had a lengthy criminal history, had lost her driver's license but had managed to have it restored. A mere twenty-four hours after the reinstatement of her license, she ran a red light and crashed into the ambulance, causing fatalities and injuries. Speed and alcohol were both suspected factors in the crash, though an investigation is ongoing.

Driving Under the Influence (DUI), Driving While Intoxicated (DWI), Operating a Vehicle While Intoxicated (OWI) and similar charges are serious offenses, and not all who seek reinstatement of a suspended or revoked license are eligible. Once eligibility is established, a petitioner must submit paperwork to the Driver Assessment and Appeal Division (DAAD), including an affidavit and supporting exhibits and evidence. He or she may have to testify at a hearing or await administrative review of the petition. There must be clear and convincing evidence that the petitioner has met the requirements essential to reinstatement of a license.

If you find yourself in need of having a suspended or revoked license restored, having knowledgeable counsel at your side may make the difference between a successful and unsuccessful petition. Michigan attorney Martin T. Lievois has more than 20 years of experience handling license restoration, drunk driving cases and criminal law. With offices in Troy and Flint, he and his staff are ready to assist you. Call today at (248)419-1566 or (810)250-4550 for a free phone consultation.


Thursday, March 12, 2015

REFUSING A BREATH TEST: THE REST OF THE STORY

Recently I wrote an article regarding the ramifications of refusing a Breathalyzer test. Due to the rather punitive penalties for such a decision, I would never opine on whether or not it is a wise thing to do.

If you are being stopped for whatever reason and you had been drinking previously, a number of considerations must be evaluated rather quickly when debating with yourself regarding taking the Breathalyzer or refusing.

How much have you had to drink over what period of time? When, what and how big was your last drink? How big are you (or small)? What is your BMI (body mass index)?

If you are requested to take the test and refuse, how long will it take for the officers to get a search warrant signed by a Judge? After that, how long will it take the officers to get to a facility to have your blood drawn? Are you way out in the boonies? Is your blood/alcohol level going down or up? This would be determined by judging how long before the blood draw all the questions posed above.

Clearly, with all there is to consider and weigh, it would be rather impossible for most anyone to accurately conclude the best course of action; BECAUSE, even if you are determined to be under the legal blood/alcohol limit and refuse the test, you can still be charged with refusing the Breathalyzer!!

That’s right, even if you are stone cold sober, if you refuse to take the test, you can still be charged with a refusal. And what are the ramifications of doing that?!? Not good!! If you request a hearing on the issue and win; GREAT, but the odds of this happening are not good. Basically the only way you win these types of hearings is if the officer does not show up for the hearing. They generally do. But, when facing a one year suspension (a second refusal within seven years is a two year suspension) because of the refusal what have you got to lose?? Sometimes the officer has other things that are more important. Sometimes they are not notified, by mistake. Maybe they are on vacation. There are endless scenarios that can result in the charge being dismissed at the hearing so, unless driving is not that important in your life, I usually suggest that the request for hearing be filed.

And it must be within 14 days of the ticket or you lose your window of opportunity.

The primary decision being made when deciding whether or not to take a Breathalyzer is, is maybe avoiding an OWI worth getting a six month suspension for the refusal?? What if the gamble doesn’t work and you end up with both? That is, you gamble on the timing because you think its been long enough since your last drink and its going to be a long time, again, in your estimation of things, before they can get your blood; they get your blood and your over the limit. Not only do you get slapped with the OWI but also the refusal....YOU LOSE….big time!!

Generally, not being a gambling man, I say just submit, no sense in making a potentially bad situation worse. Then, be as polite as possible. No sense in getting an A/R/O piled on (assaulting/resisting/obstructing).

At any rate, call me to discuss your options and best course of action, the sooner the better.

The Law Offices of Martin Lievois in Troy at 248-419-1566 or in Flint at 810-250-4550.

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