Michigan Criminal Defense Lawyer Blog
While it might be easy to understand my job as a Driver’s License Restoration Lawyer as making sure a License Appeal can and does go forward, there is another aspect to my job that’s far less glamorous than that. Sometimes, I have to be the “heavy” who “pulls the plug.”
This means that in some cases, I have to tell the Client that we have to start all over again, or re-do this or that part of our case, before we file the actual Appeal. And while no one wants to hear that, my Clients do understand that’s what they’re paying me for; to make sure that a case doesn’t go forward with a fatal defect, or some flaw that can turn into that.
One situation that has reared its head, not surprisingly, occurs when I’m hired after a person has previously tried on their own to win their License back, and lost. Usually, the Client will come in with only that previous Order of Denial from the Secretary of State. In and of itself, that Order will tell me exactly what went wrong, and what needs to be fixed in order to win. But in some cases, there is more. Let me explain:
While I don’t handle any part of Administrative Appeals, as I feel strongly that there absolutely must be a live, in-person (NOT VIDEO) Hearing, any number of my Clients are people who have tried that route before. The fact that they’re now my Clients means they found out the hard way that such Administrative Appeals are generally losing propositions.
Anyway, as part of the paperwork they will have submitted with that prior Administrative Appeal, they will have completed an Affidavit. An Affidavit is a sworn document. It carries the weight of sworn testimony, and is generally sworn to under penalty of perjury. It really is testimony, except it’s in writing.
Within that Affidavit, the person will have indicated the last time they consumed any alcohol whatsoever. In the world of Recovery, this is called a “Sobriety Date.” People in AA sometimes call it their “Birthday.” It is, by all accounts, an important date, kind of like a wedding anniversary.
Sometimes, people do their best to “guesstimate” the last time they had a drink. And while many people who are really and truly sober can’t remember the exact date they last drank, they at least have a good idea.
However, when they lose an Administrative Appeal, and then hire a Lawyer to help with a full Appeal, they’ll be required to do all of the same paperwork over again, and clearly indicate (again) the date (or approximate date) of their last use of alcohol.
And it is a huge problem when the date they gave in their Administrative Appeal is different than the date they indicate in their paperwork for the new, live, in-person Hearing for which I’m being hired.
You can’t have 2 Sobriety dates, anymore than you can have 2 birthdays
Ironically, a person can have any number of wedding anniversaries (I have 2; my wife and I renewed our vows in a religious ceremony after we had eloped years earlier). And while I remember that first date quite well (we all know what happens to men who forget this date…), I’m not exactly crystal clear on the 2nd. Thankfully, neither is my wife, because we have always celebrated the earlier date from back in 1991.
Anyway, a Hearing Officer once put it like this: “When people start giving different Sobriety dates, it means their making them up as they go along, and I have a real problem with their credibility.”
This is just another risk inherent in the “do-it-yourself” kind of License Appeal. Given the substantial likelihood of being Denied, a person needs to keep things straight for what will likely be their next Appeal.
For some people, especially those involved in AA, or for whom the night of their last DUI marked the exact moment they decided to quit drinking, remembering this date is not very hard.
Other people, however, especially those who continued to drink after their last DUI, and who only got into Recovery thereafter, can sometimes be a bit imprecise about the exact date they quit drinking. That in and of itself isn’t a big problem, but giving different dates is. To put it plainly, it screws things up.
If there’s any real lesson here, it’s probably two-fold: If you try a License Appeal on your own, you’re probably going to get Denied. Statistically speaking, the odds are somewhere between 2-1 and 3-1 (meaning that between two-thirds and three-quarters of all do-it-yourself Appeals lose) that you won’t be getting back on the road. Unless you’re just hell-bent on trying anyway, it’s far better to do it right and hire a Lawyer, like me, who specializes in Driver’s License Restoration. I even offer a guarantee that I’ll win any Appeal I file, or I’ll do the next one free.
If it’s too late, and you’ve already tried and lost, then, while you can’t “un-spill” the milk, so to speak, it is important to either be completely consistent with the Sobriety date given in that first try, or at least NOT be inconsistent. That means that if a person can’t recall what they said, and doesn’t have copies of the various forms they submitted, they should know how to address the issue of the date of their last drink.
In reality, this equates to them taking their best guess as to what they said before, and using that time frame as an approximation. It means knowing how to present that “approximation” to the Evaluator so that it does NOT become an issue. It also means making sure the Letters of Support don’t conflict with what was said. And of course, if a person doesn’t know, or simply can’t remember what was said in the first place, that can be an uphill battle.
In such a case, I will spend the extra time with the Client, and editing the Letters of Support, so that, while the Letters don’t lock the person into a date that might be wrong, they also provide an adequate basis for demonstrable abstinence. And make no mistake about it, in such a case, there is a fine art to providing Letters that are both “not inconsistent,” and also help a person’s case.
My Senior Assistant, Ann, once rather off-handedly remarked, as we were discussing this very subject, that “this is the problem when people go off and try it on their own.” Her observation was spot on, and I even said to her “that would make a good topic for one of my blog articles.” Given that I have had to deal with this issue again recently, I thought it about time to write that article.
In an earlier series of articles I wrote, I correctly noted that people who have tried a License Appeal on their own (or with some Lawyer who claims to “do” License Appeals) and lost make the best Clients. They come in, all ears, ready to listen to what I have to say and do the work necessary to make their case a winner. They have no second thoughts about dropping the cash for qualified Representation, and they no longer think that they’ve got it all figured out. When I tell them that, in my experience, there is only a small number of Attorneys who I would consider experienced enough in this field to truly be considered “License Restoration Lawyers,” they often feel better about their own lack of mastery of this subject.
Which reminds me of an old saying: “A little knowledge is a dangerous thing.”
Beyond that, another old truism is brought to mind: I always have to remember, as I’m doing some home project, like one which, for example, involves electrical wiring, that “you simply don’t know what you don’t know.” Think about that for a second. That doesn’t mean you don’t understand the stuff you don’t understand, it means that you don’t even know certain stuff exists, much less how that stuff figures into whatever you’re trying to do.
Thus, while it is always nice to have a smiling Client who is ready to follow instructions because they’ve tried a License Appeal on their own, and lost, there is also a danger that they’ve already done damage that even they don’t know about. For me, this brings home the notion that “you don’t know what you don’t know.”
This puts the burden on me to try and learn as much as I can about any prior Appeal they had. While I can rather handily fix whatever errors were present in their first Appeal and which resulted in an Order of Denial, I also need to make sure that we don’t start submitting documents with something as big and problematic as a different Sobriety date.
In my position, this knowledge represents lessons learned and tuition paid. For a Client, those lessons are invariably accompanied by a Denial of their License Appeal and another 12 months of bumming rides. It’s always better to learn from someone else’s experience and mistakes, rather than your own.
If there is a take-away here, it’s that doing it right the first time is the best way to go. For those for whom it’s already too late, at least make sure you do it right the next time. Hire a good License Restoration Lawyer, make sure he or she has all the facts about any and all prior Appeals, and above all, make sure he or she remembers that they don’t know what they don’t know. You’ll know that when they start asking a lot of questions. If those questions aren’t forthcoming, however, then it might be time to start seriously considering that you’re not sitting across from the right person for this job.