Articles Posted in Traffic Violation

A drunk driving causing death case always involves allegations that a person was driving a motor vehicle, while intoxicated, and the operation of the motor vehicle caused the death of another. As previously described, proving the “vehicle caused the death of another” involves two kinds of causation. Factual causation and proximate causation.

Of the two kinds of causation, proximate causation is the more difficult one to prove. It is also the more difficult one to understand and this is particularly true for criminal defense lawyers and prosecutors who are far less adept at utilizing these concepts than are civil lawyers handling negligence case. Also adding to the difficulty inherent in proximate causation because it is variously applied depending on the kind of case being litigated. In negligence law, proximate cause is often used to limit the otherwise limitless culpability that would inure using only the but-for test. Proximate cause is also wrapped around the concept of foreseeability.

Proximate Cause is all About Foreseeability

Over the years of defending “criminals” I have encountered many honest citizens who have made a simple mistake and now find themselves facing felony charges, prison time, the loss of career, and the loss of their 2nd Amendment rights, simply by making a mistake in understanding how they should transport a firearm.  Unfortunately, ignorance of the law is not a defense.  The price of education once in the legal system can be steep.  To avoid this fate, this article seeks to clarify the frustrating and contradicting laws regarding how to transport firearms.

Oftentimes, my clients are pulled over for a simple speeding ticket.  After the cop gets their license, registration, and proof of insurance, they are on their way to a warning or simple fine.  However, as a throw away question, the officer asks if they have any drugs or guns in the car.  Honest and law-abiding citizens are more than happy to tell the cop that they have a pistol unloaded in the case on the back seat or separated from the ammunition and placed in the glovebox.

The simple traffic stop instantly becomes a full-on investigation as the officers then begin asking questions designed to elicit admissions.  Since people with Concealed Pistol Licenses (CPL) have an affirmative duty to report the CPL and that they are carrying, the lack of that initial statement from an honest person tells the cop that there is no CPL.  This makes the act a felony and soon an arrest and a night or more in jail await someone who thought they were transporting a pistol safely.

Seeking and obtaining an expungement of your first OWI offense in Michigan will minimally require the following seven steps: (1) determining eligibility, (2) gathering all the required paperwork, (3) preparing the petition for expungement, (4) serving the petition and all associated paperwork on both the Michigan Attorney General and prosecuting attorney, (5) Filing the petition with the court and obtaining a court date, (6) Preparing for “elocution” and presenting the case to the judge at the hearing, (6) following through subsequent to the hearing to assure the OWI conviction is in fact removed from the criminal record.

Each of these steps is necessary because the new Michigan OWI expungement law sets forth very specific procedures that must be followed meticulously before an OWI expungement case can be presented before a judge. These procedures are summarized below. Understanding and following these procedures comes subsequent to your determining if your Michigan OWI conviction is eligible for expungement. Eligibility was the subject of our previous article on the new Michigan OWI expungement law. We suggest that readers begin with a review of that article before reading this one.

Do I need an attorney to file an expungement?

Expungement of drunk driving convictions has never been allowed in Michigan until recently. On August 23, 2021, Michigan’s Governor Gretchen Whitmer signed Enrolled House Bills 4219 and 4220.  Collectively, these two Bills amend the current expungement laws to allow the expungement of a “first violation operating while intoxicated offense.”

While this is a huge step forward for those with drunk driving convictions, the law is not perfect, and has many potential limitations, snags and pitfalls, many of which are clarified below.

When can I file for expungement of my OWI conviction?

How Will a Lawyer Help with a Michigan Driver License Restoration?

The petition to obtain driving privileges is a legal proceeding where you must prove by clear and convincing evidence that you will never drink and drive again. You are required to submit letters, a drug screen, a substance abuse evaluation, and your own paperwork.  You are also required to provide live testimony in support of your paperwork. If you live outside the State of Michigan then you may be able to avoid a hearing with a Secretary of State Administrative Law Judge. A lawyer’s role is to facilitate the preparation and filing of a successful petition and to oversee the testimony and presentation of evidence at the live hearing.

A license restoration attorney will guide you through the entire process, beginning with a determination of eligibility.  Sometimes, even if the necessary time period has passed, you still will be unable to meet your burden of proof and a good lawyer will advise you of this, and what steps might be necessary to make you eligible.  This is because many hidden issues can impact your eligibility to even petition for privileges. While just generally knowing your driving record should aid in this determination, many times it is beneficial to obtain a full driving history from the Secretary of State and then to discuss your eligibility with your lawyer.

Further, the attorney will aid you in understanding the requirements that must be met to obtain privileges. This is important to understand before you even start to compile your evidence. We have often found that clients who attempt to begin assembling evidence prior to hiring a lawyer make mistakes that only create delay. Unfortunately, this self-help is generally a wasted effort and will not save you money as most legal fees for these matters are “flat fees” that include all the preparation.  It is rarely helpful for you to begin the efforts yourself because the actual requirements are much more specific and detailed than most people realize. It is always the most efficient practice to retain the attorney as soon as you can. This way your lawyer can begin working on your case and getting you ready long before you are even eligible for a hearing.  This will result in avoiding an unnecessary waste of time and money and in your getting your license as soon as possible.

Do I Need a Lawyer for My Michigan Driver License Restoration?

A lawyer will help maximize the chances of getting your license back, but the Driver Assessment and Appeal’s Division (DAAD) of the Michigan Secretary of State does not require that you be represented by a lawyer.  It is possible to do it yourself, but this is not recommended.

The reason lawyers are helpful is because you have the burden of proof and must show by clear and convincing evidence that your substance use disorder is under control and likely to stay that way, and that you are at minimal risk for repeat behavior. Most of the time your evidence and testimony must demonstrate a minimum period of 12 continuous months of abstinence. You will be required to submit your evidence to the Administrative Law Judge (ALJ) who will weight this evidence and determine if you’ve met your burden.

At the hearing the evidence your evidence should consist of 3-6 letters of support, a substance use evaluation, AA sign in sheets, or other documentary evidence of your participation in a 12-step program and your sworn testimony. Your lawyer will assist you in making sure all of your evidence is in order and is presented in the most effective way possible.  Also, your lawyer should help to prepare your testimony by discussing the parameters of your testimony and guiding you through a “question and answer” practice dry run prior to the hearing.  This is especially important because you will probably be very nervous at the hearing, and giving testimony is difficult even for experienced witnesses.  Plus, the ALJ will be able to ask you questions, and an experienced license restoration lawyer will know what to expect and help you prepare for these questions as well.

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