Soon after a DUI arrest, upon a person’s release, a lot of things happen.  As a Michigan DUI lawyer, I am familiar with the emotional and the “what’s next?” stress that follows someone’s release from jail.  It’s not like a you leave the police station or jail and can go to the parking lot, get into your car, and drive yourself home.  In some cases, you need someone to post bond for you just to get you out.  Then, you have to go and get your vehicle out of impound, and you need even more money to get it out.  Once you are out of jail and the car is out of impound, that doesn’t mean that the misery of the whole arrest experience is anywhere near out of your head; you can probably still almost smell and taste that nasty jail cell.  In this article, I want to go over the first few things you should do upon your release.  While it is understandable that this whole situation “feels” like and emergency, there is nothing you need to do so quickly that you don’t even have time to think about it, or otherwise consider your options, and that includes hiring a lawyer.  In fact, the biggest mistake you can make is to act too quickly.

bail-someone-out-of-jailChances are, you were given some kind of papers (these should, but don’t always include an actual ticket, a DataMaster breath result sheet, a Michigan Temporary Driving Permit, and a bond receipt) and some kind of instructions about calling the court.  Sometimes, a ticket will have, instructions directing you to call or appear “on or before” a certain date, or, there may be a date certain on it.  As certain as that date looks, don’t worry; that’s not your actual court date.  In many cases, if you contact the court within the “on or before” date on your citation, you’ll be asked if the address information on the ticket is correct, and, once you confirm that it is, you will be told that a court date will be mailed out to you.  In almost every district court in Macomb, Oakland and Wayne County, it will take at least a month from the time of your arrest until your first “real” court date.  Places like Clarkston, Troy, any of the Grosse Pointes, Plymouth/Canton, Sterling Heights, Clinton Township, Shelby Township and New Baltimore often take even longer to have you in for your first substantive proceeding.

This brings us the very first thing you should do (after, of course, getting your vehicle out of impound, because on top of every other money grab, you pay storage fees while it sits there):  Slow down, relax, and start researching things.  I’m sure that being told to relax at this point is kind of like telling an upset person to calm down.  That never works, but here, the implications of what’s happening here go beyond just being riled up at the moment.  There are things to be done, and it will be far better to do them with a clear, cool head than it will be to be guided solely by raw emotion.  In more than 25 years as a practicing lawyer, I have been contacted often enough by people right after an arrest; these folks are genuinely afraid, and, therefore, vulnerable.  There is an operating belief in the legal industry that drives lawyers to advertise things like “phones answered 24 hours” in order to be there and lock in these people right when they call.  For many people, the first lawyer they speak with who has any answers or reassurance becomes the “savior” they hire.  This is why so many of the personal injury lawyers do hospital visits.  However, the better practice is always to consider all of your options and make the best (as opposed to quickest) choice.

There are lots of reasons why a person can lose a Michigan driver’s license restoration or clearance case, but there are 4 very common reasons that I’d like to explore in this article.  These things most often happen when someone hires the wrong lawyer, or, worse yet, tried a “do-it-yourself” license appeal.  Precisely because these are the most common reasons license appeals wind up getting denied, they are also the very things I avoid doing when I handle a license case, and I say this with some authority, because when I represent someone in a license reinstatement appeal, I guarantee to win it.  In other words, my clients don’t have to worry about getting denied for any reason, much less the four we’ll explore below.  This can provide some much needed reassurance to someone hiring me after a prior, unsuccessful case handled either by some other lawyer, or by the person him or herself.

cafc2b3a2773647fbb5f1c4a2ed7d958(1).  I’ll start with what is always an amateur mistake of the highest order – calling a witness at the hearing.  Witnesses are not only unnecessary, they are dangerous.  The ONLY good thing I can say about live witnesses is that I don’t call them.  Ever.  It is almost impossible for me to even begin to, much less fully convey, just how colossal a blunder it is to present a witness at a license appeal hearing.  Everything good and worthwhile a witness can say in person can be said in a letter of support.  Witnesses make mistakes.  They get nervous, forget stuff, and sometimes freak out when the hearing officer starts grilling the hell out of them.  Letters don’t.  Hearing officers want to see if they can trip up a witness, not because they enjoy being difficult, but because it’s part of the job to double-and triple check things, and witnesses can (and sometimes do) change their stories.  Letters don’t.  Simply put, letters don’t make mistakes.

(2).  Letters that are properly drafted, that is.  Many losses are occasioned by letters that aren’t good enough, and we’re not talking about writing skills, either.  It couldn’t matter less if your letter writers are college English professors or people who are barely literate.  As a colleague of mine has observed, most writers start out with good intentions, but end up producing nothing more than what he calls “good guy letters.”  Honestly, you can be the most generous, kind-hearted and wonderful person on the planet, but if your letter doesn’t detail (emphasis on the word detail) your abstinence from alcohol, it isn’t worth the paper it’s printed on.  The Secretary of State knows you need a license; everybody needs a license, but needing one isn’t enough.  It does not matter to the state a bit what opportunities you have missed or will miss because you cannot drive, and it could not matter less how kind and nice you are.  The ONLY thing that matters in the letters of support is proof of your abstinence from alcohol.  Of course, it’s great when the letter writer can talk about other aspects of your sobriety, but that only matters when it intersects with directs observations about you not drinking.  And for what that’s worth, a person’s observations of you not drinking is a very different thing from him or her not observing you drink.  If you’re getting the idea that this gets complex, then you’re right on track.  I pour over each and every letter of support, and wind up editing about 99% of them before they’re submitted.  To put this another way, out of every 1000 letters I review, probably only about 10 are good enough without editing.

It’s been a while since I have written about the importance of the BAC result in Michigan DUI cases.  In this article, I want to take another look at the role of a BAC result in an OWI (Operating While Intoxicated) case.  To begin, I need to make clear that this is not an article about High BAC drunk driving charges.  Sometimes called “superdrunk,” the High BAC charge can (emphasis on the word “can”) be brought when a person’s breath or blood test result following a drinking and driving arrest is .17 or more.  I have handled cases that have been charged as High BAC when the BAC result is right at .17, and I have handled cases where a person’s BAC was way above that (including a very recent case with a BAC of .24) where an unenhanced OWI 1st offense was charged instead of the more serious High BAC.  The point I want to make in this article is that, independent of the offense actually charged, the BAC result is extremely important in every DUI case, and will have a direct impact on how things ultimately work out.

hello-my-name-isFor everything that can be said, the bottom line is that the higher a BAC result, the more it “looks” like a person has a drinking problem.  I put the word “looks” in quotes because that’s exactly what we have here – a kind of general appearance that almost automatically gives rise to a not-quite accurate conclusion.  The absolute fact of the matter is that different people have different tolerances to alcohol, and while anyone with a .18 BAC is certainly really drunk, there are some people who couldn’t drink that much if they tried, and would pass out first, while there are others who could ingest that much and still keep going.  In other words, an elevated BAC result not always reflective of a tolerance to alcohol developed by excessive and problematic drinking.  This isn’t just opinion, either, it’s a clinical reality, although one that is largely ignored by conventional thought and runs counter to the court system’s inherent “alcohol bias.”  Indeed, so that I could more fully understand these important nuances of the development, diagnosis and treatment of alcohol problems, I went back to graduate school, as a lawyer, and completed a post-graduate program of addiction studies.  Everyone will have an opinion on the subject, but the reality is that people with higher BAC results will always be seen as more likely to have a drinking problem, even if they don’t.  Opinions, however, no matter how strong they might be, must always be subordinated to cold, hard facts.

Yet as much as it is a fact that not everyone with an elevated BAC result has a drinking problem, it is also a fact that such a result often does signify that a person has at least some kind of issue with alcohol.  In other words, we cannot go and lose all credibility by declaring that BAC results are simply meaningless.  Moreover, given how important BAC results are considered by the court system as a whole, it is critical that we proceed diplomatically and in a way that carefully and skillfully differentiates those for whom an elevated BAC does not, on a single occasion, signify a troubled relationship to alcohol.  Success in this regard can only be had by first understanding how and why the BAC result is considered so significant.  To fully appreciate how an elevated BAC result is perceived in a DUI case, you must also examine how a lower result is seen, as well.

How is it that by hiring a lawyer, you can almost always “get out of” a traffic ticket?  In this article, I’m going to skip all the discussion about policy and theory (the reader is likely not interested in that, anyway) and cut right to the chase about keeping points off of your record in a traffic ticket case, and how that applies in criminal and DUI cases, as well.  Whether you like it or not, there is a certain reality at work here, and in some ways it is related to the old observation that, “It’s not what you know, but who you know.”  Again, I want to avoid analyzing why things are the way they are, or how they should be in a perfect world, so I will use a real world example from my own life to illustrate:  In the process of building our home, my wife and I were asked to pick out things like plumbing and light fixtures (my wife, as it turned out, did all the picking, with my input being limited to a bunch of “uh-huh” and nodding-in-agreement responses) at certain supply businesses.  At some of these places, nothing could be purchased by the public at large, and at others, the price offered to those on the “inside” (builders, contractors and designers) was hugely discounted over what the public (we) would pay.  It may not be fair or right or whatever, but it is what it is, and unless we wanted to pay a price that was, in some cases, 40% more, we played by the rules, my wife picked out the stuff, and the ultimate purchase was made by our builder or designer.

img_1806The point I’m making is that there is a similarity when it comes to things like traffic tickets, and even criminal offenses and DUI charges.  In some cases, a lawyer, like me, walks in and just gets a deal that an unrepresented person can never procure simply because one is a lawyer and the other is not.  It’s why, for example, cops don’t get traffic tickets and why Chrysler, Ford and GM offer employee pricing.  It is what it is, and for my short time on the planet, I’m not about to take up the cause of whether that’s right or not; I offer my services to those who will pay for them in order to avoid the points on a traffic ticket or make things better in a drunk driving, misdemeanor or felony case.  When I need to, I go to someone to get the “friends and family” deal on a car, and I hire a contractor to do whatever work needs to be done at my home, and/or to avail myself of his or her discount on the supplies we need.  There are some “do-it-yourself” diehards who will try anything to save a buck, and to them I say, “good luck.”  I have no interest in either being one of those people, nor do I want to deal with them.  My own dad, who spent his career as a letter carrier for the U.S. Post Office and therefore did not earn a ton of money, was a firm believer in hiring a professional to do the job; he paid the plumber, the electrician and the mechanic to do things right.  While other dads may have spent an entire weekend figuring out and trying to do their own car repair, my dad was only too happy to drop the car off, have the mechanic fix it, and know that it was done correctly by someone who’s done that same repair countless times before.  I’m the same way both in terms of what I do as a lawyer, and what I hire outside professionals to do for me.

As I noted above, this connects with, but is certainly not limited to the idea of “who you know.”  In other words, there are courts a lawyer can walk into and just because he or she knows everyone, get a really good deal.  On the other hand, some lawyers may take cases in far-away courts (this is something I avoid completely by keeping thing strictly local by appearing pretty much only in Wayne, Oakland and Macomb County courts) and still be able to work everything out, just because he or she is a lawyer.  In one sense, that’s part “good ol’ boys network,” and in another sense, it’s not that at all.  At the end of the day, any lawyer who walks into any courthouse carries at least the implied understanding that either something can be worked out amicably, or it can be dragged out as a huge, time-consuming mess.  This is the real, if not unspoken point of hiring a lawyer in the first place…

In part 1 of this article, we began to examine the process of getting sober, and how real sobriety is not only a requirement, but the key component of a winning Michigan driver’s license restoration case.  I pointed out that people ultimately decide to quit drinking when they’ve had enough and realize that there is no way to control, manage or limit it.  I also pointed out that the perceived need to control one’s drinking is actually a clinical marker of the existence of drinking problem.  We saw that to win a license appeal,  a person must prove to the Michigan Secretary of State’s Administrative Hearing Section (AHS) that his or her alcohol problem is “under control” (meaning that he or she has not had a drink for a certain minimum period of time) and is “likely to remain under control” (meaning that he or she is a safe bet to never drink again).  The idea of hitting bottom is key to the decision to quit drinking, but, as we noted, it’s “staying quit” that really matters.  The state won’t give a license back to anyone who is seen as a risk to ever drink again, period.  The most reliable indicator that a person is genuinely “sober” and will not go back to drinking is the extent to which his or her focus shifts to how much better life is without alcohol rather than merely on the negative consequences that would accompany the resumption of drinking.

9adff455bd3091ff7dba5be7278653acWhat we wind up with is a kind of gulf, or valley, that separates those who have become sober from those who are still drinking.  The sober people will easily and happily relate how much better their lives have become since they put drinking – and all the trouble it brings – behind them, while those who have not yet put the bottle down understandably fear a change that will take pretty much everything familiar out of their lives.  No matter how great things have become for those who are now sober, there is no way to make that into a great sales pitch to someone to quit drinking when they cannot first even imagine life without alcohol.  What takes place when a drinker finally resolves to stop, and as he or she grows into sobriety, is really the process of getting sober, and is also very much a process of self-discovery.  Lots of my sober clients look back on what life was like when they drank and describe getting sober as kind of like lifting a fog, or taking off a blanket.  This necessarily involves a kind of retrospective analysis from an obviously better place.

Think back to my client who said that drunks don’t “do” anything.  They coast through life with a drink in their hand, not really feeling the moment, not really “feeling” the investment in relationships (this includes every kind of relationship, from family, friends and work) and not really feeling anything because pretty much the entire range of emotions they experience goes from wanting to drink to being outright drunk.  They may change the places and situations where they drink (from a bar to a boat to a golf course), but it’s just the same thing against a different backdrop.  This is why, after that fog lifts, the drinking friends are so easy to dump.  It’s not that they were bad people, it’s just that when a person clears his or her head, it’s plain to see that all there ever was in common with them centered on drinking.  It may take a little while, but once a person gets sober, he or she begins to earn back the trust and respect of the people who really matter, and begins to actually do things, even if it’s nothing profound.  You don’t have to climb Mt. Everest or pick up some new hobby to “do” something.  Even if all you do is begin to binge-watch TV shows on Netflix or something like that, the idea is that you’re actually “doing” something – anything – other than just getting drunk.

As a Michigan driver’s license restoration lawyer, I have written a lot about what it means to be sober, and how sobriety is a first requirement in order to win a Michigan driver’s license restoration appeal.  I have also noted that the process of getting sober involved profound life changes, but we’ve never really taken the time to look closely at that process.  For example, everyone knows that when someone gets sober, he or she ditches the drinking friends.  A sober person will always have gone through a boatload of changes from the time he or she stopped drinking, including in his or her friendships.  The contrast between then and  now is always rather stark, but what about the actual process of getting sober, and the things involved in that, like ditching the drinking friends and establishing new friendships, or reestablishing those that have been damaged through one’s drinking?  In this 2-part article, I want to examine the processes involved when a person goes from being a drinker to non-drinker, especially in light of how it fits squarely into the framework of a successful license appeal.

facebook-share-livingsoberOne big misconception is that a person has to be in AA to win his or her license back.  Alcoholics Anonymous is one of many ways to recover, and perhaps the most well-known of all the recovery processes, but it is not the only way people get sober, and it is absolutely NOT necessary for a person to be in AA to win a driver’s license restoration or clearance case.  On that point, I put my money where my mouth is:  I guarantee to win every license appeal case I take, and the majority of my clients are not in AA (although many have gone, even if just briefly, early in their recovery) at the time we begin the license appeal process.  The notion that AA is necessary to win a license reinstatement case is really a leftover from the past, when Alcoholics Anonymous was pretty much the only way people knew about to get sober.  Today, we understand that there isn’t any one specific method by which people get sober, but rather that there are as many ways to get sober as there are colors in a paint store.  Yet for as different as those ways may be, there are also certain universal experiences that everyone has in making the transition to an alcohol-free lifestyle.  It’s to those that we’ll direct our attention.

It is important to understand that, in a very real sense, no one just up and completely “quits” drinking as easily as turning off a light switch.  To put it another way, quitting is easy, but staying quit is a lot harder.  A genuine decision to not drink anymore is almost always made after a person has hit the wall, or “hit bottom.”  Especially early on, that commitment will really be put to the test.  If you’re like most people, by the time your drinking has become problematic, it has long since taken over much of your life; where you’d go, who you hung with and what you did all revolved around it.  Even those who “drank alone” developed a routine that became an established pattern in their lives; stop at the same stores, buy the same booze, and go home and drink the same way, until you got drunk and then passed out.  It’s what you know, and often, all you know.  In either case, no one decides to stop drinking because they’re having too much fun with it, yet everyone who has gone through the process of getting sober remembers that the early going was somewhat difficult, meaning the time immediately after quitting.

There is no shortage of DUI cases in Michigan.  According to the annual drunk driving audit of all courts, required by law and conducted by the Michigan State Police, there were approximately 46,248 alcohol-related traffic arrests in 2014 (2015 figures won’t be available for almost another year).  Even though there are plenty of DUI arrests during the fall and winter, things do get busier when the weather is warmer.  Boats get put in the water, barbecue parties happen all the time, the concert season swings into full gear, and people are just more inclined get out more than they do in the colder months.  Whereas most of my 250-plus DUI articles focus on a particular aspect of drinking and driving cases, I want to put up a short installment here that is more about general observations rather than specific analysis of drunk driving cases.

things-you-should-know-e1349801000893Cell phone tips about drunk drivers are relatively common nowadays.  Absolutely everyone has a cell phone.  The Police are experts at detecting signs of impaired driving, but when another motorist sees it so plainly that he or she picks up the phone and calls it in, it’s not unusual to find the driver was really, really drunk.  To date, I’ve never heard from anyone who has been erroneously called in and subsequently pulled over for being drunk and was found not to be.  In fact, I have not, in my 25-plus years, even met more than a couple of people who have ever been asked to step out of their vehicle who was not ultimately arrested for drinking and driving.  By the time a police officer gets to that, and barring a miracle, you’re going to jail.  If there’s a summary to this paragraph, it is probably that if you get called in as a suspected drunk driver or are asked to step out of the vehicle by the police, you get arrested.

If you have no prior DUI convictions within 7 years, you should almost always take the breath test.  The bad news here is that there is no way you can know when you should refuse.  If you decline, the Police will write you up for that refusal, and your driver’s license will be suspended for 1 year, unless you win (unlikely) a hearing at the Secretary of State or go to circuit court (different from the court where your DUI is pending) and file a petition for a restricted license.  That costs a lot of money and takes weeks and weeks, during which you cannot legally drive.  In 2nd offense and 3rd offense DUI cases, refusing the breathalyzer isn’t quite the same deal, although it almost never helps anyone, and, moreover, some 2nd offenders are finding themselves eligible for a restricted license if they go through a sobriety court, all of which is really complicated by having an additional suspension for refusing the breath test.  On top of all this, you can generally count on the police getting a warrant for a blood draw, especially for someone who has a prior DUI (or even more than one) on his or her record, so all refusing the breath test really does is make you look bad and causes you to come back with a elevated BAC (blood tests usually produce higher BAC results than breath tests).  Short answer; take the test.

I am somewhat unique as a Michigan driver’s license restoration lawyer, because I guarantee that if I take your case, I will win it.  There are really no hidden exclusions beyond the understandable caveats that if a person withholds vital information or lies, I’m off the hook.  Fortunately, I seldom lose any cases, rarely have to do any kind of warranty work, and, to date, have never had a situation where I have refused to honor my guarantee.  I was recently speaking with someone about my driver’s license restoration practice and how and why I require that a person must have truly quit drinking before I’ll take his or her case.  I pointed out that I have to resist a very real monetary temptation when I turn people away who call the office and are willing to pay my fee, but that having my guarantee means I am tied to the case until the person wins, and therefore prevents me from just taking someone’s money and “giving it a shot.”  In other words, my guarantee keeps me honest.

honesty-is-the-best-policy1.1In most areas of the law, a lawyer cannot guarantee a particular outcome.  In a DUI, for example, a lawyer could make everything sound really favorable, get paid handsomely, and then stand there watching as the client gets hammered by the Judge.  License appeals filed with the Michigan Secretary of State’s Administrative Hearing Office (AHS) are different.  Because I know I’m stuck with a case until I get the person back on the road, there is no way that I’m going to obligate myself to a case that isn’t winnable.  In fact, just the other day I received a call from another lawyer about someone whose appeal I had previously declined to pursue.  This lawyer, who knows me and knows my practice, obviously got a different side of things from the caller, and when he found out that I had already turned the case down, suspected that there was more to it than he was being told.  After a few minutes on the phone, he thanked me for my time.  Several days later, I ran into him in court, and he again thanked me and breathed a sigh of relief that he didn’t get sucked into that losing situation.  In his case, and to his moral credit, he didn’t want to take the guy’s money and not be able to do anything for him, which is kind of where I come from, except that my sense of morality also has a guarantee attached to it.  In other words, my guarantee keeps me honest.

Everyone needs a license.  I get tons of emails from people, many of them describing the hardship that goes along with not being able to drive, or the opportunities they have missed or will miss because they can’t.  The stories are compelling, but as I noted in a somewhat recent article about everyone “needing” a license, that couldn’t matter less.  A person becomes legally eligible to file a license appeal only after his or her revocation period ends.  An urgent need to drive, or a complete lack thereof, doesn’t affect this.  The problem is that sometimes, people contact me after having communicated with some lawyer, and either the person completely misunderstood what they were told, or the lawyer has no clue about license restoration.  Either way, most of these ideas involve trying some appeal to court, which is entirely impossible to begin with.  There is an understandable desperation these people feel, and they’d be willing to shell out just about any sum of money to get back on the road, or even to just “take a shot at it.”  I know better, and therefore won’t take the bait (or the person’s money), but in addition, I know that if I do take a case, I’m stuck with it until the person wins back his or her license.  In other words, my guarantee keeps me honest.

A rather large percentage of my DUI practice involves handling second time drinking and driving cases, meaning cases for people that have had a prior drunk driving a long time ago, as well as people facing an actual 2nd offense DUI charge. The reason for this is pretty simple: Those who have been through the process before recognize that my various explanations of the DUI process are pretty much spot-on, and have learned to separate what one wants to hear from what is true and accurate. There is, at least legally speaking, a vast difference between a 2nd offense DUI charge and merely going through the process for the 2nd time after a prior offense many years ago. A 2nd offense DUI charge is one, by law, that is brought within 7 years of a prior such case. Technically speaking, a DUI is a “second” if the arrest date for the current charge takes place within 7 years from the date of the conviction for the first. This does not mean, however, that everything is just peachy-good simply because a prior DUI falls outside of the 7-year window. Sure, a whole boatload of legal problems is avoided when your second DUI is not technically a “2nd offense,” but you still have to deal with the implications and reality of that prior offense, even if it cannot be used to enhance the penalties of the current charge.

ball-number-2-clip-art-free-vector-4vector.pngRecently, while attending a hearing in a driver’s license restoration case, a hearing officer redefined things for me and my client (who did win his full license back, by the way) after he characterized his 2 DUI’s as “mistakes.” She looked up, interrupted him, and said this: “Those weren’t mistakes. When you drove drunk the first time, you committed a crime. When you did it again, you became a habitual criminal.” That may sound harsh, but it gives a glimpse of how these cases are seen in the larger world. I’m sure one of the reasons I have such a robust DUI practice is that I am unique in pointing these things out, and speak rather candidly, if not at least diplomatically about these subjects. Avoiding real-world discussions and/or sugar coating things doesn’t help anyone. I have no tolerance for being patronized, and, in turn, have no inclination to do the same to anyone else. It is very easy for a lawyer to simply agree with the client (remember, the customer is always right) and not want to offend him or her, but the reality is that if you’re going to do anything good for a person facing a second DUI, it means you may have to get a little uncomfortable and tell it like it is. And it is this way: a person going to court for a DUI who has had a prior drinking and driving conviction is going to be seen by the Judge (and almost everyone else) as having, or as being at a substantially increased risk of having, a problematic relationship to alcohol.

I say this because most people who contact a lawyer for a second DUI, even if the charge itself is not a “2nd offense,” will want to explain that no matter how things look, they don’t have a drinking problem. If you sat in my chair, you could pretty much bank on hearing that in almost every such case, and usually as one of the very first things a person will say, at that. I understand this, but as easy as it would be for me to nod and agree, if I’m going to make things better for my client, then I need him or her to understand that you can say that until the end of time, but, in only a few exceptional circumstances, you’re not going to get the Judge to just go, “Oh, okay, well, I’m glad you cleared that up…” You don’t have to think about this too long or hard to realize that it doesn’t matter what you or I think. In the final analysis, it matters what the Judge thinks, and, when you think about that even a little, you begin to realize that nothing else matters nearly as much….
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As of the writing of this article, a new law is sitting on the Governor’s desk that will expand what a circuit court can do when someone appeals to circuit court after losing a driver’s license restoration case. Procedurally, you first try to win back your license by going through the license reinstatement hearing process wherein the Michigan Secretary of State’s Administrative Hearing Office (AHS) assigns a hearing officer who ultimately decides your case. In this article, We’ll briefly look at the change in the law, but then shift back to why, in the vast majority of cases, “appealing” to court after losing at the AHS is a waste of time and money. In my practice, I guarantee to win every case I take, so this new law has almost no potential impact on me or my clients, but there will no doubt be some curiosity, and, inevitably, quite a bit of confusion about it, so perhaps we can head off some of that misunderstanding.

index.jpgTo begin, there are a few things we need to get straight: First, to win a license restoration case, you need to prove things by what’s called “clear and convincing evidence.” The one-line short version of what that means is that after you submit your evidence and/or hold your hearing, you cannot leave the hearing officer with any unanswered questions (your evidence must be “clear”) and that evidence must show you have been alcohol free for a while, and that you are a safe bet (meaning “convincing”) to never drink again. The hearing officer is the person who decides if you’ve done that satisfactorily or not (that decision is the exercise of his or her discretion). Here’s the really important part: If a hearing officer denies a license restoration case and the person files an appeal in the circuit court, this does not make for any kind of new hearing, and no new evidence can be submitted. Instead, the Judge reviews the record (meaning he or she looks at all the evidence the hearing officer examined) and has to conclude whether or not the hearing officer’s decision was what is called “an abuse of discretion.” To put it another way, the Judge does NOT decide if he or she agrees with the hearing officer’s decision, but rather whether or not that decision is within the law. The legal standard for this kind of appeal is whether or not the decision is supported by material and competent evidence.

This means that a Judge can completely disagree with the hearing officer’s findings, but also not find any abuse of discretion or anything illegal about them, and therefore be unable to reverse them. Imagine Arnold Schwarzenneger and Hillary Clinton both run for President. In the first scenario, suppose Arnold wins, and the Judge loves him and even voted for him. However, when the Judge confirms that Arnold was born in Austria and NOT the United States, and that his election is therefore illegal, he must overturn the decision, even though he or she doesn’t want to do so. In the second scenario, assume Hillary wins, and a lot of people are upset about it, so they appeal the result in court. Even if the Judge doesn’t like Hillary and feels that she is the last person on earth who should get the job, unless he or she finds something illegal about her election, nothing can be done to undo it. This is the same thing that applies if someone tries to appeal a lost license restoration case. So what does the change in the law really do for someone who has lost a license case?
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