July 2012 Archives

July 30, 2012

The Steps in a Michigan Driver's License Restoration or Clearance - Short Version

A person who picks up 2 DUI's within 7 years, or 3 or more within 10 years will have his or her Driver's License Revoked by the Michigan Secretary of State. A Revoked License is different than a Suspended License. Usually, a License is Suspended for a certain, definite period of time, or until money is paid. When a License is Revoked, a person cannot legally drive again until they get approval from the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) for Restoration of their driving privileges. A person can NEVER just go to Court to Restore a License that has been Revoked.

The only way for a person to win back a License that was Revoked for multiple DUI's is to wait until they are legally eligible (1 year minimum for 2 DUI's within 7 years; 5 years minimum for 3 DUI's within 10 years) and then file a Petition for a Driver's License Restoration with the DAAD. There is nothing that can be done to shorten the period of Revocation. Beyond the necessary passage of time, a person must be really and truly Sober to win their License back

Red Car 2.2.jpgPart of being a Michigan Driver's License Restoration Lawyer is fielding questions from people who provide all kinds of compelling reasons why they need to drive - work, school, or medical necessity for them, or their children or even parents. Often, these long stories end by asking, "Is there any way I can just get some kind of Restricted License?"

There isn't. Revoked is Revoked.

The License Restoration process cannot begin until the minimum period of Revocation has passed. There are a million little details involved in this process, but only a few actual steps. I have written a library full of articles on just about every facet of Michigan Driver's License Appeals, and a person can spend a lot of time reading them and learning. My point in this article is to reduce this incredibly complex and detailed process to its most basic elements.

Once a License is Revoked for multiple DUI's, it is gone until a person wins it back after a Hearing in front of the Secretary of State's DAAD. A person must wait the minimum period of time of that Revocation before they can start the License Appeal process. Beyond just waiting the minimum period of time to file, a person must be prepared to prove several issues, outlined in DAAD Rule 13. Amongst them, the two things that matter most in any License Appeal are that:

  1. The person's alcohol problem is under control, and
  2. The person's alcohol problem is likely to remain under control.
The second issue is the hardest to prove, and is undoubtedly the single biggest reason most Appeals are Denied. Ultimately, "proving" this issue means a person must demonstrate to the state that they are a safe bet to remain alcohol-free, almost as if the Hearing Officer were to say to them, "I need to be convinced that you are convinced that you can never drink again."

Continue reading "The Steps in a Michigan Driver's License Restoration or Clearance - Short Version" »

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July 27, 2012

Michigan Driver's License DUI Revocation Clearance for out of State DMV

Within the more than 135 Michigan Driver's License Restoration articles on this blog, I have covered pretty much every step in the License Restoration process. Some of those articles are rather detailed examinations of very fine points of the procedures and requirements for an out of state resident to obtain a clearance of a Michigan Hold that prevents them from obtaining or renewing a Driver's License in another state. This article will be rather the opposite of that - a summary look at the general process of obtaining a Clearance of a Michigan Hold, or Revocation, and how it's done in my Office, so that a person can go to the DMV in their new state and get back on the road.

A Michigan "Hold" is really just a Michigan Driver's License Revocation. If someone living in Michigan whose License has been Revoked for multiple DUI's were to go into a Secretary of State Office to try to get a License, they'd be told that they cannot do so until they file (and win) a Driver's License Restoration Appeal Hearing. They would be told that they are "Revoked."

michigan-map 2.1.jpgIf that same person were to go into the DMV (Department of Motor Vehicles) of a state other than Michigan, and try to get a License there, they'd be told that Michigan has a "Hold" on their Driver's License, and that they cannot get one in the new state until that Hold is removed. Many of my Clients were able to get that out of state License in years past, only to find out that now, as technology makes the transfer of information more complete and much faster, that old Michigan Revocation has caught up with them, and they are unable to renew their License in whatever state they now reside.

The only difference between a License Restoration and a Clearance is that if a person wins a Restoration Appeal, they win back their Michigan Driver's License. If a person who lives out of State wins a Clearance, they win a removal of Michigan's "Hold" (meaning the Revocation), which in turn will allow them to get a Full License in another State. To be clear, if a person wins a Clearance, they DO NOT win any kind of Michigan License. They can only use their Clearance to get a License in another state. It cannot be used to get a Michigan License.

The process for removing a "Hold," meaning obtaining a Clearance, is identical to having a Michigan Driver's License Restored. However, anyone who lives out of state can try to file a License Appeal by mail, called an "Administrative Review," whereas a Michigan resident must actually appear for a Driver's License Restoration Appeal Hearing. It is a statistical fact that 3 out of 4 Administrative Reviews are Denied, meaning that anyone who tries an "Appeal by Mail" has about a 25% chance of winning. While I would never recommend that anyone try this route, I would never actively discourage anyone from giving it a go, either, should they be so inclined. I will be here the next year for anyone who needs me.

The better route, of course, is to go for a full License Appeal Hearing. This is not just some sales pitch I use to reel in out-of-staters. I so strongly believe in live, in-person Hearings that I schedule ALL of my cases to be heard live, at the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) Office in Livonia. As it turns out, I have the option of scheduling any of my cases for a Video Hearing at a local Secretary of State Branch Office about 4 minutes down the road from my Office. I would NEVER even consider making that mistake. Instead, I happily make the one-hour drive to Livonia for each and every case I accept, because I know that a live Hearing is incredibly superior to a second-rate, grainy video sort of web cam deal.

Continue reading "Michigan Driver's License DUI Revocation Clearance for out of State DMV" »

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July 23, 2012

Getting a 3rd Offense Felony DUI Dropped to a 2nd Offense Misdemeanor in Michigan

In my DUI Practice, some of the most nervous callers with whom I speak are, not surprisingly, those charged with a 3rd Offense (Felony) Drunk Driving. This article will focus on one such case I am handling now, and how I got the Prosecutor to reduce the charge from a 3rd Offense Felony to a 2nd Offense Misdemeanor at the very first Court date. This is a longer story, but I'll keep it to one installment rather than breaking it up into two parts.

A few years back, the Michigan DUI Law was changed to make a 3rd Drunk Driving charge after 2 prior DUI convictions, at any point in a person's lifetime, a Felony charge. In other words, if a person has 2 prior DUI convictions on their Record, no matter how long ago, and thereafter picks up another DUI charge, that 3rd charge is a Felony. This was a huge change from the prior Law, which used to require that the 3rd charge occur within 10 years of the person's first conviction.

Rum 2.1.jpgIt is simply impossible, in the real world, for a person to emerge from Jail, after a 3rd (or 4th, or 5th, or whatever) DUI Arrest an NOT know that they are, or will be, facing a Felony. Therefore, the how and why of such a charge really becomes academic, as anyone facing it rightfully focuses their concern on what is going to happen to them as a result of it.

In this case, my Client had been socializing at Macomb County marina, and decided to go home. Admittedly, he had consumed a number of drinks, and as he was attempting to leave, he struck a boulder at the side of the road, causing his airbags to deploy and one of his front tires to go flat. The rim of the tire was damaged, as well, and he was more or less "beached" on the boulder. Someone called this in on his or her cell phone, and the Police headed over.

A few minutes later, by the time the Police were arriving, my Client had managed to get his vehicle off the boulder, and was trying to exit the marina. Thus, the as the responding Officers entered the marina, they were greeted by a vehicle with a banged up front end, deployed airbags, a flat front tire and a bare, damaged rim dragging along the roadway, shooting sparks, heading toward them. They activated their lights, blocked his path, and stopped him.

As they made contact with my Client they found him to be cooperative, albeit kind of "out of it." When one of the Officers asked him how much he had to drink that night, my Client gave one of the world's most popular answers: Two drinks. Ask any Cop or DUI Lawyer what the most common response is to the question of how much a person had to drink, and most often you'll hear either "a couple," or "two." Once out of his vehicle my Client had some balance problems, and didn't do particularly well on the Field Sobriety Tests. For good measure, I obtained the Police car video to make sure the Police Report accurately reflected how my Client performed, and found that there was no discrepancy.

This is important. As a general rule, if there is in-car video, it should be obtained. If the video shows the Client staggering and stumbling all over the place, the Police Report, which is the Officer's account of what happened, needs to be consistent with that. Thus, if the Police report indicates that a person had difficulty holding his or her balance, or did not do very well on the alphabet and counting backwards tests, the video better reflect that. Even if a person is obviously drunk, the Police Report needs to be an accurate, truthful account of what happened, or the Officer's credibility is called into question.

Continue reading "Getting a 3rd Offense Felony DUI Dropped to a 2nd Offense Misdemeanor in Michigan" »

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July 20, 2012

Michigan Driver's License Restoration - Five Year Wait After 3 DUI's Within 10 Years

Answering questions about Michigan Driver's License Restoration issues is a large part of what I do everyday. This goes beyond just being in the Office; I wind up answer emails after hours, while I'm at home. Because a large part of my Michigan Driver's License Restoration Practice involves Representing people who live all over the world (I'm not kidding; as of this writing, I have Clients stationed in Korea and Japan), I get emails at all hours. As the song goes, it's always five o'clock somewhere...

One issue that comes up again and again centers on the length of time a person must wait until they can file a License Appeal. This is particularly true when a person is dealing with a 5-year Revocation after picking up their 3rd DUI within 10 years. Frankly, I am somewhat angry and rather shocked at the amount of misinformation that seems to be circulating about when a person can get their License back.

Five Years 1.3.pngIt angers me that anyone would open their mouth and give what amounts to legal advice about something in which they have had no legal training and are dead wrong. I am shocked that this completely wrong information circulates as much as it does, and am equally shocked to learn from where some of it comes. More often than I'd like to admit, this misinformation comes from AA. I love the AA program, and think it is a wonderful way for some people to get Sober. However, AA people tend to listen to other AA people, and that's good. However, being "good" at Recovery doesn't make one an expert at DUI Laws or License Restoration Law, anymore than having been a patient makes one a medical expert.

When I am faced with pronouncements like "you can never win a License Appeal the first time" or "you can go to Court and get a hardship License," I go nuts. A person may be the 4th Step guru, but that doesn't make him or her a Lawyer. Yet because people sit around the tables and discuss life issues, what is said at those tables is sometimes given far more credibility than it deserves. Imagine, for example, someone mentioning that his wife has breast cancer, and another person saying something like "Oh, man, that's fatal. My sister had that and was dead in a few months." By the same token, imagine yet another saying "My sister had that. She didn't trust Doctors, so she just went with an all-natural, organic diet and she cured herself."

Both of these are incredibly ignorant things to say, but the "legal advice" given by most of these non-Lawyer "experts" isn't much better. In fact, I've heard some pretty off-base observations from Lawyers, much less non-Lawyers. I certainly won't offer an opinion about Divorce issues, because I don't do that kind of work, and the world would just be a lot less dumb if people didn't offer advice or opinions about things they don't really know about.

Anyway, my complaints aside, many people have difficulty accepting that a 3rd DUI conviction within 10 years means a person will have to wait 5 full years from the date of their Revocation to be able to pursue a License Appeal. I agree that it sucks, but it is what it is, and, more importantly, there is nothing that can be done about it. And this is major point: I make most of my living handling (and winning) License Appeals. If there was a way to just go to Court so a person would NOT have to wait, that would mean more income for me. Why would I turn away a person willing to come in and hire me?

Continue reading "Michigan Driver's License Restoration - Five Year Wait After 3 DUI's Within 10 Years" »

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July 16, 2012

Michigan Driver's License Restoration Requires Alcohol Problem Likely to Remain Under Control

To win a Michigan Driver's License Restoration Appeal, a person must prove, by "Clear and Convincing Evidence," that their "alcohol or substance abuse problems, if any, are under control and likely to remain under control."

In the real world, this translates to a person having to show that their alcohol problem is under control, and likely to remain under control. Absent any indication of past problematic drug usage, the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) is not going to waste time inquiring about a "substance abuse" problem that doesn't exist, and anyone who has 2 or more DUI convictions within 7 years, or 3 or more within 10 years will be presumed have an alcohol problem, with no "if any" question about it. This essentially means that anyone filing a License Appeal because their License was Revoked for multiple DUI convictions will be presumed to have an alcohol problem.

Drinking 1.2.jpgThis is important. Anyone thinking of trying a License Appeal on the basis that they don't have an alcohol problem is wasting their time. This approach isn't just a bad plan; it's worse than having no plan at all. The DAAD (and pretty much the rest of the world, for that matter) will conclude that anyone with at least 2 DUI's in 7 years has a drinking problem. This adds another translation to the concept that a person's alcohol problem is likely to remain under control, and amounts to a person being a safe bet to never drink again. I tell my Clients that, in a very real way, the Hearing Officer has to be convinced that the person is, in fact, convinced that they can never drink again.

Theoretically, a person can have 2 Drunk Driving convictions, even within 7 years, and not have a drinking problem. In reality, such a case is rare. In my 22 years as a License Restoration Lawyer, and out of all the Michigan Driver's License Restoration or Clearance cases I've handled, less than a handful have ever presented this circumstance. Usually, by the time any normal person picks up their second DUI, they've had other issues with alcohol, as well. A Client of mine said it best at his License Appeal Hearing (which, by the way, he won):

"By the time I got arrested the second time, I had already run into some other complications from my drinking, but I thought I had a good explanation for all of them. Sitting in that Jail cell, it was like a switch flipped. I could see that that alcohol was the common denominator to all the problems in my life; it was why I was in there again. My explanations didn't make sense anymore. I realized I had been in denial, and that alcohol was my problem."
It's not that a second DUI within 7 years, standing alone, is absolute proof of a problem, it's that almost everyone who gets that second DUI will be hard pressed to honestly say that the only problems alcohol has ever caused are just those two DUI's, and nothing more.

Almost without exception, therefore, anyone who becomes my Client will have long ago accepted that they have an alcohol problem. I don't waste my time with anyone who is not genuinely Sober, or who thinks that they can still drink, however occasionally (like that works, anyway). In practical terms, if the next two hundred people to call my Office about a License Restoration were to claim that they don't have a drinking problem, or really believed that they could continue to drink without risk, I'd be lucky to find even one that the DAAD would agree with. Accordingly, it's nothing more than a waste of time to deal with anyone who thinks this way.

Continue reading "Michigan Driver's License Restoration Requires Alcohol Problem Likely to Remain Under Control" »

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July 13, 2012

Winning a Michigan Driver's License Restoration - Guaranteed

I Guarantee that I will win any Michigan Driver's License Restoration or Clearance case that I accept. I never dreamed that my Guarantee could become such an important focus of my whole License Restoration Practice, yet the number of Clients that mention it as a reason for hiring me, or at least giving me and my Office a closer look, has really surprised me. I'm very glad for that, of course, yet I think that, given the way I handle a Michigan Driver's License Appeal case, NOT having a Guarantee would be crazy.

For the longest time, I have maintained an overall win rate somewhere around 97 or 98% in License Restoration cases. I am proud of the results that I achieve, and truly enjoy the work I do to produce them. I have been extremely candid and open about what I do, and how I do it both on the Driver's License Restoration section of this blog, and on my website.

Ironclad 1.2.jpgFor about 20 years, I have studied and maintained a keen interest in the whole panorama of alcohol and substance abuse problems, from their onset and development to the methods and tests by which such problems are diagnosed, to their treatment, and ultimately, through the entire Recovery process. This is not just accumulated knowledge, either; I actually study this stuff. As of this writing, I am reading a textbook for Counselors called "Treating Alcoholism: Helping Your Clients Find the Road to Recovery" by Robert R. Perkinson. In that sense, I suppose I am different from many other Lawyers, for whom such reading would be boring beyond compare. For me, it goes right to the heart of what I do every single day; deal with Recovery from a drinking problem.

Of course, I know that my understanding of the development of an alcohol problem, and the Recovery from it, plays a significant role in my success as a Michigan Driver's License Restoration Lawyer. Perhaps the most important legal issue in a Michigan License Appeal case is that a person's alcohol problem "is likely to remain under control." Because this must be proven to the state by "Clear and Convincing Evidence," a detailed understanding of the internal, psychological processes by which a person transforms from drinker to non-drinker seems, at least to me, to be a minimum requirement to accept a License Appeal case. In other words, as the Lawyer, I have to know and understand the language of Recovery. Since most of my Clients are not active in AA, I need to be able to help them describe how and why they became alcohol-free, and to explain how they plan to remain that way. I could not do this if I didn't have a fundamental understanding of the onset and development of an alcohol problem, its progressive nature, the role of AA, and Recovery without AA.

I have a thorough understanding of alcohol problems. I do not take cases where a person is not really and truly Sober. With those things and lots of hard work, I win almost every Michigan License Restoration case I take. The recipe may sound simple, but these are the ingredients for success.

Continue reading "Winning a Michigan Driver's License Restoration - Guaranteed" »

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July 9, 2012

Michigan - Traffic Stop and Possession Charge in the Detroit Area

A Traffic Stop by the Police can lead to all kinds of troubles. Most DUI cases begin with a Traffic Stop. So do a lot of Drug Possession cases, as well. This article will focus on those Traffic Stops where drugs are found, and result in a Possession charge. Within my Practice, most of the Possession charges I see involve things like Marijuana or prescription medications like Vicodin or Xanax, and usually begin by being pulled over.

In the preceding article, I pointed out that about 90% of my caseload (consisting of things like DUI or related matters, such as Drug Possession cases and Driver's License Restoration Appeals) begin with a Traffic Stop. In that regard, almost all of my day-to-day work can trace its origin the operation of a motor vehicle, and contact with the Police as a result.

MSP RUn 1.2.jpgIn the real world, far more Criminal cases than one would ever think begin with a Traffic Stop. Just by running a person's License, the Police frequently discover that an unpaid Ticket has led to a Suspended License, or that a person has an outstanding Warrant for some matter or other, and the Driver suddenly finds him or herself in the back of the Police car, while their car gets searched. That's when things often take a turn for the worse.

There are about a million ways this can happen. A person may get stopped for weaving, and as part of a DUI Arrest, marijuana or some other drug is found. The Police can arrive on an accident scene and somehow turn up a few prescription pills from somewhere. However it happens, it happens, and a person winds up facing a Possession charge, or a Paraphernalia charge that all began with a drive or a ride in a vehicle.

Frequently, after the Police search a person, or their car, and then Arrest them for Possession of something like analogues, marijuana or any other controlled substance I am asked, "can they do that?" I have to chuckle at that question, because the answer has already been given: Of course they can do that - they already did it!

The real question, of course, is whether the search is legal. And this is always a critical inquiry in any Traffic Stop case that leads to a possession charge. Before even considering that question, however, the whole reason for the Traffic Stop, or the initial Police contact itself, needs to be questioned. If there is any legal basis to have the Stop ruled improper or unlawful, then any and everything that takes place thereafter will never see the light of day in a Court of Law, including anything that the Police find. The Police need a reason to pull someone over, and while there a million reasons that they can "give," sometimes, the very circumstances themselves tend to contradict the reason "given" for the Stop.

In assessing the legality of the Stop, it is important to find out if there is any Police in-car video. The Police can say anything they want about why they pulled someone over, but, as the old saying goes, a picture is worth a thousand words. Dash-cam video can give clarity to unresolved questions between competing versions of the same story. It can be a wonderful tool to challenge a Traffic Stop, or what takes place during the Stop, especially when the Police are more obviously acting more on a "hunch" than anything else.

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July 6, 2012

Beating a DUI case in the Detroit-Area

As A Detroit-area DUI Lawyer I often explain that I "handle" DUI cases. But what, exactly, does "handling" a DUI case mean? As I pondered that question, a few things became apparent. I prefer precision in language, and upon thinking about it, merely saying that I "handle" DUI cases is rather imprecise. In truth, I concentrate in, or, one could say, specialize in, DUI cases. It is part and parcel of the bulk of what I do on a daily basis.

About 90% of my Practice consists of DUI cases, and the related field of Driver's License Restoration Appeals for those who have had their License Revoked for multiple Drunk Driving offenses. Beyond that, the rest of my caseload involves things like Suspended License charges, or Marijuana or Controlled Substance Offenses, almost every one of which begin with a Traffic Stop of a motor vehicle.

not-guilty 1.2.jpgAs a matter of course, I strongly warn anyone facing a DUI charge against getting involved with some Lawyer who claims to "do" DUI cases (or who just "does" any kind of law, for that matter). In that same way, I also warn against falling victim to the appeal of the "lowball" (meaning cheap, or cut-rate) Lawyer, or anyone who feels their best attribute or quality is that they are the "low bidder." It is usually a more general practitioner, or a Lawyer who focuses more on their "affordability," rather than their skills, who simply "does" DUI cases.

It seems then, that we can redefine the question from what does it mean to '"handle" DUI cases to what does it mean to "properly handle" DUI cases? Unlike the Lawyer who "handles" DUI cases, along with Divorce cases, Dog Bites, Slip and Falls, Wills, and everything else under the sun, "properly handling" DUI cases is more about limiting one's caseload to just DUI cases, and those things closely related to it. In that sense, being a DUI Lawyer, or a Driver's License Restoration Lawyer, is similar to being an "ENT," or Ears, Nose and Throat Doctor. Those systems are so completely interrelated and intertwined, that to fully know any one, each of the other 2 must be understood, as well. How any one works in conjunction with the others requires understanding those "others."

With the question now redefined as what does it mean to properly handle a DUI case, the answer is two-fold:

1. It means either beating the case, or getting it dismissed, or "knocked out" somehow -
or if that cannot be done because the case is based upon sound legal evidence, then -

2. Getting the charge reduced and/or otherwise limiting the negative consequences to the Client.

Simply put, achieving either result means making things better than they'd otherwise be without my help and guidance. In the rest of this article, we'll take a summary look at how and why the evidence gathered by the Police and presented in support of a DUI charge needs to be carefully evaluated, with an eye towards successfully challenging it, more than anything else. Some of this is obvious, and some is not...

Continue reading "Beating a DUI case in the Detroit-Area" »

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July 2, 2012

The Steps in a Michigan Driver's License Restoration Appeal

As a Lawyer specializing in Michigan Driver's License Restoration cases, I have received lots of very nice compliments about this blog, the Driver's License Restoration articles within it, and my site, as well. Some of my more recent articles have gotten rather detailed, and it seems about time for a short, general piece about the Driver's License Restoration Appeal process in Michigan for someone with multiple DUI's.

In Michigan, a person's Driver's License will be Revoked after their 2nd DUI within 7 years, or their 3rd within any 10-yer span. Specifically, in DUI cases, the Secretary of State will Revoke a Michigan Driver's License as follows:

  • 2 Drunk Driving convictions within 7 years = Revoked for at least 1 year
  • 3 Drunk Driving convictions within 10 years = Revoked for at least 5 years
It doesn't matter if all, some, or even any of the DUI convictions took place in Michigan. I've seen cases where, over the course of 7 years, a Michigan Resident with a Michigan Driver's License received 2 DUI convictions, both outside of the state, and had their Michigan License Revoked.

Night Driving 1.2.jpgIf a Non-Resident of Michigan picks up two or more DUI convictions here, in Michigan, our Secretary of State will Revoke the his or Driving privileges within this state (Michigan cannot take action against an out of state License, nor can another state do anything to a Michigan License), meaning they cannot drive within the State of Michigan on ANY License, no matter where it was issued. When such a person goes to renew their License in their home state, they'll find that they will be unable to do so until they obtain a Clearance of the Michigan "Hold" upon their Driving Record. In effect, Michigan's actions will ultimately act just like a Revocation of their Driver's License.

Once a person loses their License for multiple DUI's as outlined above, they cannot get their License "reinstated" (Restored) until they appear before the Michigan Secretary of State's Driver Assessment and Appeal Division (DAAD) and prove certain things. There are five legal issues that must be proven under what is known a s "Rule 13," the rule governing License Appeals. For purposes of this summary article, the real meat and potatoes of the Driver's License Restoration process can be boiled down to two issues:

1. That the person's alcohol problem is under control, and
2. That the person's alcohol problem is likely to remain under control.
Each of these issues must be proven by "Clear and Convincing Evidence." This means that a person must present an airtight case, and submit compelling evidence in order to win. Think "home run."

The first issue involves establishing a Sobriety date. This means that a person will say "I haven't had a drink of alcohol since "X" date." Normally, a person will have to establish at least 12 months of abstinence from alcohol, with several months of that being demonstrably voluntary, meaning NOT while on Probation or Parole. Often, this means a person will have to wait more than 12 months to begin the License Restoration Process. With very few exceptions, you cannot win your License back while on Probation or Parole.

Continue reading "The Steps in a Michigan Driver's License Restoration Appeal" »

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