Articles Posted in Driver’s License Restoration

In part 1 of this article, we began looking at how every person who manages to get sober has a “recovery story,” and, even if they’ve never thought of their experiences in that way, it’s that story that is really fundamental to winning a Michigan driver’s license restoration or clearance appeal. The 2 things a person must prove, in order to win his or her license back, is that he or she has quit drinking and been alcohol-free for a “sufficient” period of time, and that he or she is a safe bet to never drink again. How a person goes about staying sober is always unique to him or her, because the path of everyone’s recovery is different.

Some people go to counseling, some go to AA, some go to both, and a few go to neither. For some people, AA is a perfect fit. Plenty of others go for a while, but then stop, having gotten what they needed from the program. And for everyone who finds some benefit in AA, there are also lots of people who know that it just isn’t for them after a few meetings, or even after their first. Many sober people report having gone to counseling and/or AA in the past, well before they were ready to quit drinking. Then, something happened that suddenly made them realize they couldn’t drink anymore, and they decided to quit.

Some of these people manage to quit drinking without ever going back to counseling or AA. Lots of these people make clear that, even years later, they could recall the messages, if not the exact words, from their time in counseling and/or AA – the biggest and most important of which is that once you know you have to quit, you have to “stay quit” and can never pick up another drink again. Although there are common elements to everyone’s recovery, like the idea you simply can’t drink again, there are also plenty of things about each person’s recovery that are as unique to him or her as their fingerprints.

One of the most important yet frequently overlooked things in a Michigan driver’s license restoration or clearance case is a person’s recovery story. Some people never think about getting sober in this way, and go on to win their cases without ever being aware of the “story” element that underlies it. Nevertheless, it’s always there, in every winning case, just like breathing is “there” for every living person. In this article, I want to bring this ever-present aspect of license appeals into plain view, because by doing that, we’ll see what really makes a winning case “tick.”

The first thing we need to spell out is the actual, legal objective of a license appeal. A person wins a race by being the first to cross the finish line; likewise, he or she wins a hot dog eating competition by eating the most hot dogs. In almost every endeavor, a person begins the process knowing exactly what he or she must do to succeed. One of the strange realities is that often enough, people jump into a license appeal without understanding the rules, figuring that the fact that they “need” a license and/or haven’t been in any trouble for a while is enough to win.

It’s not. To have any chance at winning a driver’s license restoration or clearance appeal, a person must prove 2 things, by what the Michigan Secretary of State defines as “clear and convincing evidence”: First, that his or her alcohol problem is “under control,” meaning that he or she can prove they haven’t had a drink for a “sufficient” period of time, and second, that his or her alcohol problem is “likely to remain under control,” meaning that he or she has the commitment and ability to remain alcohol-free for good.

In part 1 of this article, we began an examination of the worst kind of ignition interlock violation – a start-up failure that is NOT followed either by any further testing on the interlock unit or a timely PBT or EtG test. We examined how, when it comes to driver’s license restoration matters, the term “violation” is (imprecisely) used to mean several things: a non-compliant incident, a formal violation that causes a person’s license to be revoked again, and a hearing when someone defends against a formal violation. As we closed out the first part, we began talking about the role of PBT and EtG tests.

As far as PBT tests go, the term “PBT” means “portable breath test” (even though the police use the same device for what, in DUI parlance, is called a “preliminary breath test). In order for these tests to have any value, they need to be administered promptly, meaning something close to within the hour after a positive interlock result. Getting a PBT test 2 or 3 hours later is really of no use.

An EtG test, by contrast, can be given anytime within 12 hours and count as valid for interlock violation purposes. There is much debate about how long these tests can go back and detect alcohol, but really, there is really NO reason that a person on an ignition interlock, no matter what the circumstances surrounding a positive sample, can’t get to a facility by the end of that same day and provide a urine sample.

Ignition interlock violations are fairly common in Michigan driver’s license restoration cases. In this relatively compact, 2-part article, I want to focus on the worst kind of violation: a start-up failure where the person just walks away from the vehicle, and does not, thereafter, obtain either a PBT or EtG test to show he or she hadn’t been drinking. I wish there was some way that this piece could be read by everyone on an interlock BEFORE they run into any trouble, but the reality is, most people will find it when they’re looking for help after something has gone wrong. At a minimum, what we’ll cover will help explain why this specific type of interlock violation is so problematic.

Before we get to that, we should clarify the term “violation.” Everybody, including the Michigan Secretary of State hearing officers, uses the word “violation” to mean 2 very distinct things: first, to describe an event or incident that fails to meet the requirements of proper interlock use, and second, to describe a formal hearing scheduled when any such incident(s) results in someone’s license being revoked all over again. Things would be much clearer if we described the former as something like a “non-compliant incident,” and the latter as a “violation hearing.” Don’t hold your breath for that, however.

Instead, any missed rolling retest, startup failure, tamper/circumvent or positive breath test result is simply, albeit erroneously, called a “violation.” Under the interlock rules, if a person has even 1 missed rolling retest or a tamper/circumvent, he or she is formally “violated,” and his or her license is revoked all over again. As if what we’re talking about isn’t confusing enough, that re-revocation of a license is technically called the “reinstatement of original action.” The only way for someone to get their license back is to request a hearing within 14 days from the date that reinstatement of original action (the revocation) goes into effect, which is usually about a week or so after he or she receives a notice of the violation from the Secretary of State.

You cannot win a Michigan driver’s license restoration or clearance case and also use recreational marijuana. This article will look at why anyone who smokes pot (or otherwise even thinks they can occasionally drink) will automatically lose his or her license appeal. There is an exception to this for people who use medical marijuana for a serious condition, but our focus in this article will solely be on the recreational use of weed, how that stands in conflict with any notion of sobriety, and why that will stop a license appeal dead in its tracks.

As driver’s license restoration lawyers, we field an endless stream of calls from people who want to get back on the road legally. Because we guarantee to win every initial license restoration and clearance case we take, my team and I have to screen carefully to make sure a person can win (meaning that he or she is genuinely sober), before we undertake representing him or her. We don’t want to get stuck doing warranty work on a case that was a loser from the start. The recent legalization of recreational marijuana has given rise to the misconception that a person can somehow use it and still win a license restoration or clearance appeal. As we’ll see, this is 100% NOT true.

People in recovery understand that real sobriety specifically excludes the use of any mind or mood-altering, or potentially habit-forming substances, unless medically necessary, and even then, only when there is no suitable alternative. When that happens, the use of any such substances must take place under direct medical supervision. A person who is clean and sober simply cannot drink or get high, ever again. This is basic, fundamental stuff, kind of like “Recovery 101.”