As a Michigan driver’s license restoration lawyer who writes about every aspect of driver’s license reinstatement appeals, I have published plenty of articles that separately detail how you can win your license back without going to AA, and, on the flip side, how AA can play a helpful role in a successful appeal. The straightforward reality is that you can win your license back either with, or without AA. When you dig a little deeper, though, it becomes clear that it’s what a person has learned about his or her drinking that matters, and not really where he or she learned it. A lot of people who go through the Michigan Secretary of State’s license appeal process have spent at least a little time in AA, but there are also plenty who have never been to a single meeting in their lives. The key to winning a Michigan license restoration or clearance case has everything to do with a person learning, whether through AA, counseling, education, self-study, or any combination of the above, that his or her relationship to alcohol has moved to a stage where drinking again is never an option.

1.948193themenutoday.jpgThe most important part of my job is to help my client “prove sobriety” within the framework of the license appeal process and its “million little rules.” This is where things can become very frustrating, especially for someone who has genuinely and honestly quit drinking yet still loses his or her driver’s license restoration or clearance case. It’s natural to think, “What more do they want? This isn’t fair!” And while I understand those feelings, if you want to get your license back, you have to accept the way the system works and either present a winning appeal within it, following all those that govern these cases, or fight that system and continue to lose year after year. It would take more space than I have here, and certainly way more time than the reader would likely care to spend, for me to explain how and why the driver’s license restoration process is actually not unfair, but the bottom line is that there are numerous, specific steps you need to follow to win your license back. If you have really quit drinking, then I can get you back on the road because I know exactly what to do and essentially have this down to a science. As I hinted before, the choice is rather simple: Do it the way the Secretary of State’s Administrative Hearing Section (AHS, the body that decides these cases) requires, and win your appeal, or do it your way, and lose.

In a sense, winning a license appeal is a lot like building a watch. First, you need all the right parts. Watch parts have to be made very precisely. You can’t just jam “good enough” pieces into the mechanism, or else the movement won’t work. In that way, a license appeal requires real sobriety. There is no “good enough” kind of sobriety. Either you’ve gotten sober and changed your life, or not. Even with all the right parts, however, building a watch requires putting each component in the right place, and in the right order. The same thing holds true in a license restoration appeal. Even if you have real sobriety, not putting your case together exactly as it needs to go will result in a frustrating lack of success. With that said, let’s circle back to the most important element or “part” of a license appeal case, sobriety…
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One of the most common questions I am asked in my role as a Michigan DUI lawyer (especially one who also concentrates in driver’s license restoration cases after multiple DUI’s) is “What will happen to my driver’s license?” This is usually followed by some explanation about how the person needs to drive to get to work (or school, or both, or to take the kids to school, etc.). It goes without saying that everyone needs their driver’s license, but it also goes without saying that when you are caught up in a Michigan DUI, something will absolutely happen to it. In this article, I want to look at the very real world situation where a person is facing his or her 1st DUI offense, including a High BAC charge. In an upcoming installment, we’ll look at the very different situation and results that take place when a person is facing his or her 2nd DUI charge within 7 years, or 3rd within 10 years. For now, however, we’ll limit our examination to 1st offense charges.

MSPP 1.2.jpgObviously, if you’ve never been convicted of OWI (Operating While Intoxicated) before and you’ve been arrested for drunk driving, you can only face a 1st offense charge. Given that I sometimes handle more than 12 drinking and driving cases in a single week, I see just about every situation you can imagine, and one of them that isn’t as uncommon as you’d think involves a person with a prior DUI conviction that occurred more than 7 years ago who winds up facing yet another. In many of these cases, the person will conclude that because he or she had a prior conviction, this new one is automatically a 2nd offense. This is where legal technicalities matter: In Michigan, a “2nd offense” means that a person was convicted of (meaning pled guilty to or found guilty of) a prior OWI offense within 7 years of the date of the arrest for the current charge. The implication here is that your second offense may not actually be a “2nd offense.”

Here’s the good news: If you don’t have a prior DUI conviction within 7 years (and don’t have 2 within the preceding 10 years), you will NOT lose your driver’s license. You may have to deal with a short suspension, and you will certainly have to drive with some restrictions for a while, but your license will not be “yanked” (revoked) by the Michigan Secretary of State (SOS). And this is perhaps the most important point of all: The driver’s license sanctions for each and every drinking and driving offense are set by law, imposed by the SOS, and cannot be modified in any way, or for any reason. The court has nothing to do with what happens to your license, nor can any Judge make a restriction or suspension shorter or longer. The license penalties are set in stone, and no matter what your circumstances, you will receive the exact license sanction for the specific DUI conviction you wind up getting. This means, however, that in many, if not most cases, the charge first made against you after your arrest is more serious than what can and will ultimately be worked out by a Michigan DUI lawyer, like me. Thus, it does little good to run and look up the penalties for your initial charge when I can usually get that charge reduced to something less serious and that carries less of a penalty to your license. Let’s see what this means in the real world of 1st offense DUI cases:
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In a recent article, I looked at how the court system has an inherent bias regarding alcohol in criminal and DUI cases. The examination in that piece was, of course, from my perspective as a Michigan DUI lawyer. A few weeks ago, I received a nice, descriptive email from a past client in which he detailed his experience of having gone through the DUI process. What a gift! Of course, I was glad to hear from my client (he is a really nice guy, and when you read his email, you’ll quickly get a sense of that), but I was even more thrilled at the unexpected gift of a long email that I could use to show what it’s like to go through the DUI probation process from the client’s perspective, especially in light of how my client related it directly to my recent article about “The Alcohol Bias,” where I looked at how the court system is naturally inclined to suspect a drinking problem in just about every OWI (Operating While Intoxicated) case that goes through it. The set up here is important: My client had provided a High BAC breath test result in a drunk driving case that took place in THE undisputed toughest court in the Detroit area, located, of course, in Oakland County.

Thumbnail image for Insiderer 1.2.jpgAs you’ll see from the email itself, my client didn’t feel like he had been treated too harshly, or in any way treated unfairly. Instead, he felt the full weight of the court system’s built-in tendency to “over-diagnose” the existence and/or extent of a person’s alcohol problem. The term “over diagnosis” is not some crafty phrase I came up with as a DUI lawyer, but rather something I formally learned about doing post-graduate work in addiction studies. This is a very real concept, well understood in the clinical community, yet virtually unknown in that judicial system that suffers from it. It is relevant here because the facts of this client’s case were somewhat unique, and he was very much at risk to be ordered into an expensive and time consuming IOP (Intensive Outpatient Program), and all kinds of other counseling, education, rehab, testing and treatment. We worked hard and intelligently to minimize that, and, as you’ll see, my client was able to carry away enough from our time together to help himself from being stuck in AA that didn’t “click” with him during his time on probation. AA is great for some people, but certainly not everyone. Unfortunately, the court system is just not in a position to analyze and then act with such clinical precision, so many people find themselves in the cross-hairs of the kind of “over treatment” caused by over diagnosis.

To be clear, I have no dislike for or problem with AA in general, but I believe it is best for those who really need and want it, and will fit well with it. You may go to a particular church and find lots of comfort and inspiration from your Pastor. Good for you. That does not mean, however, that it’s the place for everyone. You may hate my favorite restaurant. Some people thrive in AA, while others hate it; some like it, some tolerate it, and some just don’t connect with it. As the saying goes, “Different strokes for different folks.” The court system, unfortunately, often sees AA as a kind of universal, super-cure-all, even though it is certainly not. If there’s one lesson that seems to go perpetually (and curiously) unlearned, it’s that sending someone to AA who does not belong there, or who is turned off by it, will almost certainly never produce the desired outcome. In other words, if someone is forced into AA who doesn’t like or need AA, then they’re not going to get any help from it. That’s like sending a skinny person to Weight Watchers. Likewise, even if someone needs help, forcing him or her to get it from AA alone is rather short-sighted, given that modern research has and continues to validate an ever-widening panorama of helpful treatment options, including things like Cognitive Behavioral Therapy (CBT), brief interventions, individual counseling, group therapy and other support groups besides AA (Smart Recovery, Women for Sobriety, ect.). With that as our background, let’s move on to my client’s email (reprinted exactly as written, including typos, with the exception of the removal of his Probation Officer’s name), and get his take on all this:
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As a Michigan DUI lawyer, I am very conscious of the fear someone experiences as he or she deals with a DUI charge. I was reminded of how profound those feelings can be a few days before this article was written during a phone conversation with a potential new client. At least in the local courts of the Detroit area, meaning Macomb, Oakland and Wayne Counties, I pretty well know how a case is going to play out (meaning a case that is not likely to be thrown out of court due to faulty evidence) based upon the answers I get to a few questions. I know, but the person doesn’t. He or she can often feel awash in a sea of unknowns. As in the call yesterday, where it was the person’s 1st drinking and driving charge, I know all things that aren’t going to happen, but the person on the other end of the phone does not, and is understandably afraid. It therefore becomes important for me to help someone understand that most of the things freaking them out are not going to happen. This allows us shift the focus to those things that really are “on the menu,” so that we can direct our efforts to dealing with what’s likely to happen, rather than wasting time on those things that, however scary, will not.

Fear BlackSign.jpgAs I told the caller yesterday, I am put off by anything with even the faintest hint of making money off of another person’s fear. I don’t want that trick played on me, and I certainly wouldn’t do that to anyone else. In this very sense, many DUI lawyers and drug companies take the opposite approach to marketing. Whenever you see an ad for some drug on TV you’ll hear the disclaimer at the end, usually read at about 100 mile an hour, where you’re warned “Side effects are rare, but include upset stomach, nausea, vomiting and, in rare cases, heart failure and death. Tell your doctor if you take nitrates for chest pain, or are pregnant.” By contrast, fear-based legal marketing often first points to the worst possible penalty an offense carries, along with a laundry list of every bad thing that can happen. Thus, you’ll learn that a 1st offense OWI (operating while intoxicated) charge technically carries a maximum penalty of 93 days in jail along with various other consequences. You won’t hear that although the charge “technically” carries a maximum penalty of up to 93 days in jail, and almost without exception, no one is at the slightest risk to do even a single day in jail, much less anywhere near all 93. Instead, the predatory marketers will offer to help you “avoid jail” and “save your freedom,” or your life or job or whatever. The ugly truth is that It is not nearly as profitable to tell people that they don’t need to be afraid of all kinds punishment as it is to promise them that you can protect them from it.

And so I’m beginning this article in my living room the day before Thanksgiving because this incredibly burdensome thing I have, called a conscience, nags at me to do the right thing and dispel unfounded fears about a DUI rather than cash in on them. Even so, I still do rather well for myself because there are enough cerebral people in this world who will go the extra step and look a little deeper. These are the people I’d prefer as clients anyway. The point, however, is that in a DUI case, things probably aren’t nearly as bad as you fear. That’s not to say a drunk driving charge is a good thing, but rather that intense fears about getting thrown in jail and losing your job, while very real when you have them, are also very much exaggerated and misplaced. Let’s unravel this a bit…
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In part 1 of this article, we began our backwards look at the Michigan driver’s license restoration and clearance process, starting from the moment you actually win your license to the point where I correct and edit the letters of support. As I noted, the letters of support and the substance abuse evaluation, which we’ll pick up with in this installment, need to be cross-checked with each other, and with all the other evidence in your case in order to make sure everything is cohesive and consistent.

Time blur.jpgThe substance abuse evaluation is, without a doubt, the real foundation of a Michigan license appeal. There are loads of things that need to be managed in order to get this part right. To start, I can HONESTLY count on 1 hand the number of evaluations I have seen in my 25-plus years, done by evaluators other than the few I use, that are good enough to win a license reinstatement case. The overwhelming majority of evaluations I have seen that were done outside of my circle of evaluators are sure losers. This has nothing to do with how good a substance abuse counselor the person may be, but rather how much direct experience AND specific instruction he or she has had in completing this form so that it provides the hearing officer with the information he or she has been trained to consider. That kind of information is not obvious from just looking at the form, despite the fact that almost every substance abuse counselor would probably think so.

A good substance abuse evaluation, in terms of your license appeal, will have 2 defining characteristics: First, it will be clinically accurate and sound, and second, it will be favorable to your case. These 2 things are quite independent of each other, but both are needed if you are to have any chance to win your license back. An evaluation can be as clinically accurate and sound as can be, but may be unfavorable to you. By contrast, the state has seen countless favorable evaluations that were based on fiction, rather than fact. The idea that you can somehow “buy” a favorable evaluation is a misconception; the hearing officers can see right through that, and that’s one of the first things they look at. One of my favorite examples of this is when an evaluation gives a person an “excellent” prognosis. If someone has been sober for 24 years, has outlived his or her first AA sponsor, has 2 or 3 sponsees, is the longtime treasurer for his or her home group and runs its annual 4th step retreat, he or she probably has an “excellent” prognosis for continued abstinence from alcohol. When someone has 3 or 4 years, however, the state will be reticent to agree that his or her long-term prognosis is “excellent,” based upon the real life cases it sees, and will feel most comfortable with a prognosis of “good.” The irony here is that “good” is always good enough; “excellent” creates more trouble than it’s worth. This is a lesson that’s only learned through hard-won experience…
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In my role as a Michigan driver’s license restoration lawyer, I have written hundreds of articles with detailed information about the license appeal process. Presumably, that’s why you’re here. I want to make this article interesting, and the idea recently occurred to me to look at the steps of a license restoration case in reverse, from last to first, rather that sequentially, from first to last. After all it’s the end result of a driver’s license restoration or clearance appeal that you’re interested in, right? In my practice, I guarantee that when I take a license clearance or restoration case, I will win it, so I figured, why not look back from the moment you slip that valid license back into your wallet to the time, like now, when you wonder if and how you can you win it back, and what’s all involved? We’ll break this article into 2 parts in order to keep each manageable.

Thumbnail image for Clocker 1.2.jpgYou find out you’ve won your license appeal when you get a letter from the Michigan Secretary of State (SOS) indicating that the hearing officer assigned to your case from the Administrative Hearing Section (AHS) has granted your appeal. Congratulations, you’ve won your license back! In addition to formal order granting your appeal, if you’re a Michigan resident, you will receive information about the restrictions that apply your new license and instructions about what you need to do to get the ignition interlock unit installed. You’ll be given a list of companies for this (I include a discount coupon in the folder I give a client at our first meeting for Nationwide Interlock, one of my favorite providers), and informed that you must go and have the unit installed on whatever vehicle you’ll be driving (it does NOT have to be registered to you) and bring proof of that installation back to an SOS branch office in order for your license to be issued. Those who no longer live in Michigan will receive a “clearance” allowing them to go to the DMV in their home state and finally get (or, in some cases, renew) that license.

The notice that you won your appeal usually arrives within 2 to 4 weeks after your actual appeal hearing. I am a strong believer in holding a live (as opposed to a video) hearing. There are 3 AHS hearing locations in Michigan (Livonia, Lansing and Grand Rapids) where live hearings are conducted. Video hearings can be scheduled at most SOS branch offices, but I will only present my cases live, and in person. No matter the convenience, I will not allow any of my cases to be presented over a grainy, poor sounding webcam-like feed. Because my office is here in the Detroit area (Mt. Clemens), all of my cases are scheduled locally, at the Livonia (Metropolitan Detroit) branch. Hearings are scheduled on the hour (9,10 and 11 am, and 1, 2, 3 and sometimes 4 pm) and always conclude well within that hour, meaning that the hearing starts promptly at the scheduled time.
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In my practice as a Michigan driver’s license restoration lawyer, I have published over 300 articles about the license appeal process, and have examined things like determining when you are eligible, how I do things in my office, as well as every other aspect of the license reinstatement process. Without a doubt, the single most important requirement to win your driver’s license back after multiple DUI’s is that you must be genuinely sober, and I have written more about this than any other topic. This article will look at this fundamental reality from what I hope is a slightly different angle. Despite the fact that I practically scream about sobriety as much as I can, my office still gets inquiries from people who want their license back, but haven’t yet stopped drinking.

computerdog3.1.jpgI see these contacts as, if nothing else, an opportunity to help someone understand how the Michigan Secretary of State, through the agency that handles license appeals, the Administrative Hearing Section, or AHS, perceives his or her relationship to alcohol, and perhaps nudge the person toward a decision to stop drinking. Indeed, I’ve had people come to my office who have claimed that they have reevaluated the role of alcohol in their lives because of what I’ve written, and in doing so, have seen their drinking as the common denominator to what is holding them back as well as most, if not all of the trouble they’ve gotten into. The week this article was written, I had a brief email exchange with someone that stands as the perfect example of the way to never win your license back. I’m going to reprint it later in this article, minus, of course, any names.

Here is the thing: In the setting of a driver’s license restoration case, “sobriety” certainly means that you’ve quit drinking, but it also means that you have the commitment and the tools to never drink again. The state is simply not EVER going to return a license to anyone who thinks he or she can safely pick up a drink, even if just occasionally. Step back and look at the situation from a safety and societal point of view: On at least 2 occasions, the person had too much to drink and then drove and got caught. Now, the story goes, they have somehow managed to figure out when enough is enough, and the risk of them ever drinking and driving is somehow magically gone. The license appeal process provides that “The hearing officer shall NOT order that a license be issued” (that’s a negative mandate) unless the person proves, by what is defined as “clear and convincing evidence,” that his or her alcohol problem is “under control” (meaning he or she has been totally abstinent from alcohol for at least a year, and often more), and “likely to remain under control” (meaning that he or she is a safe bet to never drink again. You either meet these requirements, or you don’t get your license back, period. And this goes way beyond just saying the right things; it’s about the whole mindset of sobriety.
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A DUI is never a good thing. Whether a 1st offense or 2nd offense charge, the whole situation usually comes with a lot of potential consequences, both legal and personal. Many are threatened, but only some are likely. If you’ve been arrested for drunk driving, there are a lot of things you want to save, including your freedom, your job, and your dignity. In a certain sense, you need to save face after a drinking and driving stop . About the best thing you can do right off the bat is to calm down, slow down, and realize that this is not a race. Take your time to figure things out. Even though it may feel like it, you’re not in need of some immediate rescue. Instead, know that thoughtful, timely planning will always produce better results than quick, reflexive action.

save-face-vertical 1.3.jpgA DUI charge can threaten, or at least be perceived as a threat, to your job, your ability to drive, and your social status, as well. Whether you’re an engineer, a nurse, a physician, a teacher, or just about anything else, and although you understandably fear losing your job, the good news is that such a thing is very unlikely to happen. Even so, despite the fact that you may keep your job, a DUI may become “known” in certain organizations and settings and wind up being a huge embarrassment and cause a lot of personal and emotional stress. For example, the nurse, physician or other medical professional, the whole incident may never go beyond having to report it to LARA, the state licensing body. The engineer who travels, however, may find, at least for a short time, that his or her temporary driver’s license poses an obstacle to renting a car when traveling for business.

These issues are very real, but they are also, unfortunately, the ones most often exploited by lawyers who are long on marketing skills and somewhat shorter on candor. Sure, it sounds great to avoid any and all of these problems, but the reality is that most of the time, you’re not going to be lucky enough to stumble into a case that will just “go away.” The best outcome in any DUI requires a more cerebral approach both on your part and the part of your DUI lawyer. No stone should be left unturned in the quest to get your case “knocked out” or to otherwise beat it, but your plans should also include what to do beyond that. Speaking just by statistics alone, any given case is more likely to go through the court system rather than be thrown out of it. Let’s look at what saving face in a DUI really means in most cases…
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If you live and Michigan and need your driver’s license back, you’ll have to go through an appeal hearing conducted by a hearing officer with the Administrative Hearing Section (AHS) of the Michigan Secretary of State. If you don’t live here, but have a Michigan “hold” on your driving record that you need removed, you should (if you want to win) come back to Michigan for a license appeal hearing. While the hearing is important, if the case has been properly handled from the start, it is not, contrary to some beliefs, some dramatic, “It all comes down to this” moment. Instead, the hearing should be seen and used as an opportunity to confirm and reinforce the evidence that makes up your case, and provide the hearing officer with an opportunity to clarify a few things through questioning.

Thumbnail image for Thumbnail image for Thumbnail image for Prep Key 1.2.jpgWhat do you mean by “questioning?” What will I be asked? How should I answer? Questions, it seems, bring even more questions. Preparing for your license hearing involves, in large part, being ready for the questions you’ll be asked. Yet for all the experience and skill and strategy that goes into this, the real key to winning is telling the truth, and that means that you must have honestly quit drinking and be genuinely sober as a starting point in any license reinstatement case. I have written enough about that topic, so in this article, we’ll just start with the assumption that you are, in fact, genuinely sober.

The real point of a license appeal is to prove, by what the state calls “clear and convincing evidence,” that your alcohol problem is both “under control,” and, somewhat more important, that it “is likely to remain under control.” This second requirement essentially translates to proving that you have both the commitment and the tools to remain sober for life. The hearing is an opportunity for the state, through the hearing officer, to confirm these things. Thus, the questions you’ll be asked, both from me and from the hearing officer, are intended to examine your understanding of sobriety and your commitment to it. In practice, this can be a bit cumbersome, because each of the 5 hearing officers has his or her own way of doing things. This, in turn, affects the questions I ask and how I handle a case. Let’s look at this more closely…
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As a Michigan criminal and DUI lawyer, I’m used to analyzing and talking about facts. Yet facts are not always self-evident. Founding father John Adams once famously argued in court that “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, you cannot alter the state of facts and evidence.” And while Adams was correct in a philosophical, theoretical sense, in the context of a criminal or DUI case, a “fact” is essentially something that exists as the Judge perceives it. To bring this back to the real world, we’ll look at how what clearly seems like a fact to one person can seem almost like a fairy tale to someone else, and how certain things are just “there,” and must be acknowledged, then worked through.

Thumbnail image for Thumbnail image for Facts 1.2.jpgThis becomes really important when you are the person facing a criminal or DUI charge. To give the reader an idea of what I mean, consider these two examples: First, imagine a person with absolutely no prior record of any kind who winds up facing a DUI charge after providing a .17 breath sample. The person has always been a hard working, tax paying and law abiding citizen. While he or she may want to make sure the Judge sees how out of character the Operating While Intoxicated incident is when contrasted against the whole of his or her life, the Judge may look at the person’s BAC result as more than 2 times the legal limit and high enough for the enhanced “High BAC” DUI charge, and see (i.e., perceive) little more than a walking, talking danger to society. The .17 BAC result may be inconvenient and truly unrepresentative of the person facing the charge, but it nevertheless exists as a fact.

For our second example, suppose a person is facing a Judge for the 2nd DUI in his or her lifetime. Even though any number of years may separate the prior offense from the current, it is still the case that the person is now charged with his or her second DUI overall, whether or not the case is brought as a 1st offense or a 2nd offense. While the person may have some good (and valid) reasons why this second case is also an out of character incident and does not represent a pattern of problem drinking, the Judge may see little or nothing beyond the “fact” that he or she is a repeat, 2nd time DUI offender. However you cut it, the whole 2nd offense thing is just “there,” and it must first be acknowledged before anything can be done to make it better. “Facts,” in this sense, are a matter of perception. I have long known that the right way to handle any criminal or DUI case is the to combine a thorough knowledge of the facts of the case and the applicable law with the skillful management of time, perception and science. In a certain way, controlling perception amounts to controlling the facts…
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