Every Michigan driver’s license restoration and clearance appeal is decided by a hearing officer. Technically called an “administrative law examiner” (for all practical purposes, the same thing as an “administrative law Judge”), a hearing officer is a licensed attorney employed by the Michigan Secretary of State’s Office of Hearings and Administrative Oversight. Because they decide all license appeal (including implied consent and ignition interlock violations) matters, SOS hearing officers serve an incredibly important function.

fairness-278x300For as much power as they have to approve or deny license appeals, hearing officers are constrained to exercise it within very strict rules. This is important, because most lawyers don’t know the ins and outs of these rules, and fewer still work with them enough to really understand how they are interpreted and applied by each hearing officer. People who lose a “do-it-yourself” license appeal (or who lose with some lawyer who does not concentrate in this field) often become frustrated at the result, and blame the hearing officer, without understanding how the application of the rules controlled the outcome of their case.

Although the governing rules are written in black and white, the way each hearing officer interprets certain parts of them can vary, essentially meaning that there is some gray area. This is where the uniqueness of the various hearing officers matters, and why it is very important for us, as driver’s license restoration lawyers, to know each one, and how he or she does things. Something that one hearing officer couldn’t care less about may be a complete deal killer with another. If the lawyer doesn’t know how this applies to every part of a case, then he or she is not properly prepared to move forward with it.

Who is the best DUI lawyer? What about the best singer, baseball player, or runner? Any serious attempt to answer a question like this must be qualified in various ways; whoever might be the best opera singer probably won’t make the cut for best R&B or rock and roll singer. In baseball, the best pitcher is a much different player than the best batter. In looking for the best, context matters. The “best runner” in the 100-yard dash is no doubt the fastest in that event, but is a lot different from the best marathon runner, who must pace him or her self for 26.2 miles.

download-7This means that finding the “best” DUI lawyer is really about getting the best person for your case, more than anything else. This, in turn, is dependent on things like the facts of the case, where it’s located, and how well the lawyer and the client “fit” and work together. Some people get along better with the kind of legal “buzzsaw” who, taking a shotgun approach, challenges everybody and everything within a case, while most others do better with a more thoughtful approach. And as much as someone might prefer one personality type over another, the lawyer has to be the right fit for the case itself, as well.

Specifically, nobody can be all things to all people. Certain lawyers are better at some things than others, and even do better in some locations than others. For example, my team and I limit our practice to the Metro-Detroit area, where we know, from repeat, day-in and day-out experience how things are done in each of the various courts in which we work. Location is important in a criminal or DUI case. Some Judges are “easier” than others, but however that shakes out in any particular case, a lawyer has to know how to deal with it, and we make sure we do.

As Michigan DUI attorneys,we stay on top of all developing legal issues. This one, which is both interesting and important to a lot of people, has been widely broadcast on news channels across the state: On January 13, 2020, the Michigan State Police moved “to take all 203 Datamaster DMT evidential breath alcohol testing instruments out of service until MSP can inspect and verify each instrument to ensure it is properly calibrated. In the interim period, the MSP recommends that police agencies utilize blood draws rather than breath tests to establish evidence of drunk driving,” according to an official MSP statement published online.

dmt-1-300x251What, if anything, is the upshot of this? What are the implications for anyone with a pending DUI? Does this mean there is some way to “undo” the conviction for someone previously convicted of a DUI? While the answers to those questions are evolving, there are a few things we can take from this right away, not the least of which is that from this point forward, until things are resolved, the MSP, as noted above, is recommending that suspected DUI driver’s undergo a blood, rather than a breath test.

What has been disclosed thus far is that the MSP has learned that an outside company hired to calibrate and maintain all the Datamaster breath-testing units may have falsified documents relating to their upkeep. This, of course, opens up the possibility that any machines affected, when used, may not have been functioning properly, and therefore could have provided inaccurate BAC results. This has significant potential implications for anyone convicted of an OWI offense (DUI), or who is otherwise facing such a charge, based upon Datamaster breath test results.

In the course of having written more than 500 articles about driver’s license restoration, I have consistently made clear that a person must be genuinely sober to win a Michigan driver’s license restoration or clearance case. Because this is so fundamental to the whole license appeal process, it is worth repeating that there are 2 facets to being “sober,” in the way that qualifies someone to win a license appeal: First, that you have given up drinking and remained completely abstinent for a “sufficient” period of time (in my office, we generally want our clients to have a minimum of 18 months’ alcohol-free), and second, that you have the commitment to remain sober for life.

nodrinking-3Being able to win a license appeal and drinking alcohol are mutually exclusive things. The Michigan Secretary of State has drawn a line in the sand: after 2 or more DUI’s, the only people who will ever be allowed back on the road are those who can prove they have quit drinking for good. The state sees anyone who has had his or her license revoked after multiple DUI’s as too much of a risk when it comes to alcohol. It may not be able to stop such a person from drinking anymore, but it’s not going to let them drive as long as they do. You can’t get past the fact that people who don’t drink are exactly zero risk to drink and drive.

Even though I try and explain the requirement that a person must be sober to win a license appeal quite regularly, and probably because of the sheer volume of information I put out (not everyone is a big reader, after all), as well as the fact that my team and I guarantee to win every first time driver’s license restoration or clearance case we take, people find me online and think “he’s the guy.” While that’s flattering (and for anyone who’s has honestly quit drinking, I certainly AM the guy), the sobriety requirement is set in stone, and is the key issue in every Michigan driver’s license restoration or clearance appeal.

In part 1 of this article, I began explaining how, although it is normal for anyone with professional employment, or who holds a professional license, to worry about losing their job or their occupational license because of a DUI, such an outcome is highly unlikely, especially in 1st offense cases. In the real world, this is a fear that almost never plays out. We saw that, contrary to how they’re often perceived, licensing bodies are not angry, punitive agencies just waiting to pounce and revoke licenses for things like DUI convictions.

mmmInstead, as I tried to make clear, beyond having rather strict reporting requirements, the big risk for anyone with a professional license is that the licensing agency will require him or her to be “evaluated” to determine if they have any kind of substance abuse problem, and then required to complete any treatment deemed necessary as a result of that evaluation. As we’ll see in the coming paragraphs, the problem is that this takes place in an environment that, instead of being any kind of level playing field, is tilted far for toward the “better safe than sorry” side of things.

Even so, it goes without saying that a person is better off being able to keep his or her license, but also be required to complete any kind of treatment to do that, rather than simply having it taken away. The reality, however, is that (especially for medical professionals), we’re not talking about a few months of seeing a counselor once a week; the kinds of remedial measures required can be extremely demanding, and often include, in addition to anything the court orders, several AA or NA meetings per week, individual and group counseling, and regular breath and/or urine testing.

If you are facing a DUI charge and have any kind of professional employment, or hold a professional license, your worries go beyond just the potential legal consequences from the court. Unfortunately, a lot of legal marketing is fear-based, and tries to exploit the correlation between how much someone has to lose and how frightened they are when dealing with a drunk driving charge. Instead of doing that, I want to make clear, in this 2-part article, that for most people, including doctors, lawyers, teachers, and most other professionals, a single DUI will almost certainly NOT cost you your job or license.

mmmmm-300x256My team and I have, quite literally, handled thousands of DUI cases. Short of a professional lion-tamer, I can’t think of a profession we haven’t represented. We’ve taken care of DUI charges (including 2nd offense cases) for more medical and other professionals than I could count, and absolutely none of them have lost their licenses, or their jobs. In almost every case, with some skillful planning that accounts for the legal, employment and licensure implications of an OWI charge, everything can be worked out just fine.

That said, I am not aware of a single exception to the requirement that anyone convicted of a DUI must report it to his or her professional licensing body within a certain number of days. Separately, some people are required, under the terms of their employment, to report a DUI to their employer, but most are not. While employment terms are mostly contractual, and can require a person to notify his or her employer of an arrest, or pending charge, the reporting requirement for professional license holders is strictly rule-based, and, generally speaking, only kicks in after there has been a formal conviction.

As Michigan driver’s license restoration lawyers, we deal with the consequences of failed and missed ignition interlock breath tests on a daily basis. In this article, I want to explain why a startup failure is such a big deal, especially because, it won’t, by itself, result in a formal ignition interlock violation, but will cause problems later on. The main point I want to make is that even a single startup test failure will present an obstacle down the road, when a person goes back to get his or her full license.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2020/01/450.1-258x300.jpgThis whole startup failure issue is “contemplated” within the notice of proper ignition interlock use contained in every order that’s issued after a successful driver’s license restoration appeal. The Michigan Secretary of State (SOS) provides rather detailed instructions about how to avoid any kind of violation in the first place, and then what to do if a person misses or fails a test. Unfortunately, the SOS drops the ball on this issue because the notice of interlock use “strongly suggests” that a person who fails a startup test obtain a timely PBT or EtG test, when, in fact, it generally EXPECTS a person to get one of these tests, and often penalizes those who don’t do so.

Whatever one can say about all this, as the saying goes, “it is what it is,” and we have to deal with things as they are, not how we’d like them to be. The reality is that if you are required to use an ignition interlock after a driver’s license restoration appeal, or while on a Sobriety Court license, either you take the steps necessary to protect yourself, or you’ll regret not having done so later on. The day before this article was written (I write them about 2 months ahead of publication), I received an email from a previous client of mine, and the exchange of messages between us explains this whole issue better than anything else I could ever write. For reasons of confidentiality, I have redacted the client’s name and replaced it with [Previous Client], or [Previous]. Otherwise, I have copied and reprinted our emails below, exactly as they were written:

There is an old saying that, “a little knowledge is a dangerous thing,” and while it has almost universal application, it is especially relevant when someone tries to “play lawyer” and handle his or her own driver’s license restoration or clearance appeal. You can learn can get a lot of information from it, but Google can’t give you a law degree. People often confuse, or incorrectly equate information with knowledge and experience. A person can acquire information about a particular subject, but that’s very different from having a systematic understanding of it, especially from having actually done it (successfully, no less).

you-dont-know-222-287x300The dictionary defines systemic as follows: “relating to a system, especially as opposed to a particular part.” In terms of driver’s license restoration and clearance appeals, this means that understanding the individual parts of the license appeal process isn’t enough; one has to understand how they flow and interact, as a system. For example, most people know that to win a license appeal, you have to submit a “favorable” substance use evaluation (SUE), but they don’t really understand what the various course specifiers on the front page mean, nor what the differences are between them.

The license restoration process is, in every sense of the word, a system, and it is based on certain, well established principles of law. The whole “burden of proof” requirement serves as another example; the law mandates that, in a license appeal, a person prove his or her case by what is defined as “clear and convincing evidence.” Anyone handling a license appeal needs to know exactly what that means, and how that standard compares with, and is different from, the other legal standards of proof, like “preponderance of the evidence,” “probable cause” and “proof beyond a reasonable doubt”.

In part 1 of this article, we began an examination of how my firm educates our DUI clients, particularly in 1st offense DUI cases, to make sure they understand the whole process and take the appropriate steps to make sure it never happens again. I noted that everyone will, of course, say it won’t happen again, but that being a better lawyer means taking a few extra steps to help the client as a person, and not just help him or her out of a legal jam. We then looked at the critical role of the alcohol screening test and how it significantly determines the outcome of a case, and the importance of being thoroughly prepared for it. We concluded with the key observation that success in a DUI case is always best measured by what does NOT happen to you.

3333333-284x300Educating the client isn’t merely about preparing him or her for things that will or might happen. Sometimes, it’s more about dispelling a person’s fears and misconceptions, as much as anything else. The issue of jail (or, really, the lack of it) serves as a good example for what I mean: I am undoubtedly the most vocal lawyer out there about the fact that, almost without exception, you won’t go to jail for a 1st offense DUI in the Metro-Detroit (meaning Wayne, Oakland, and Macomb Counties). I make that clear on both my website and in many of the more than 425-plus DUI articles (to date) I’ve written and published here, on this blog.

Despite all of that, my office gets calls and emails almost every day from people facing 1st offense DUI charges who, more than anything else, are freaking out and pleading for help to stay out of jail. I could make a killing if I just marketed my practice solely on the basis of “staying out of jail” in 1st offense DU cases. I could reassure people that it won’t happen, and do little else other than wait until the case is over to bask in the false glory of having kept them out. Morally speaking, that’s not the right thing to do, however…

One of the most distinguishing features of how my firm handles DUI cases is that we try and educate our clients about the whole DUI process, and also help them explore their assumptions about alcohol to make sure that they don’t find themselves in the same legal predicament again. Of course, everyone says it won’t happen again, but even the best laid plans sometimes go awry, so we add in a little protection, just in case. We truly believe that our obligation to our clients goes beyond just helping them “get out” of a legal jam, and compels us to help each one as a person, with an eye toward protecting their future.

22222222-295x300A DUI case IS a big deal. From a purely legal point of view, it’s all in a day’s work for us, as DUI lawyers, to help our clients avoid most of the negative consequences from an OWI charge. However, because of our experience handling DUI cases day-in and day-out, and the things we know, we feel morally obligated to do better than just that, and do more than just damage control. Handling the legal aspects of a DUI is really the bare minimum a person should expect from a lawyer, in the same way that closing up a cut is the bare minimum a patient should expect from an emergency room doctor.

In that regard, just like a better doctor will want to stitch the wound carefully, so that it heals with as little scarring as possible, a better lawyer will want to make sure the all of the client’s interests are protected, including many the client may not even realize he or she has while in the the thick of things. Although there is a lot to this, key in every case is helping the client to understand both the legal implications of the current case, and how his or her future relationship with alcohol needs to be adjusted in some way or ways to make sure there isn’t another, and that this DUI is a “one and done.”