Articles Posted in Driver’s License Restoration

A fair-sized number of my clients are people who, before hiring me, have lost a previous attempt to either win back their license or obtain a clearance to remove a Michigan hold on their driving record. In this article, I want to talk about losing a license appeal. I don’t have much experience losing. Michigan driver’s license restoration and clearance appeals are my special niche (I handle more than 200 a year), and I guarantee to win every case I take, so we’re talking either about someone who has tried on their own, or with some other lawyer. Among the cases I handle after someone has lost, more than half have tried on their own, with no lawyer. Almost without exception, those people who did hire a lawyer hired someone who did not specifically concentrate in license restoration cases, but may have listed them, or had a blurb about them, on a website. Almost every out-of-state client who has previously filed for a clearance and lost did it on his or her own.

maxresdefault-300x223It is not unusual for me to be contacted by people who’ve lost right after they get the bad news from the Secretary of State. One of the first things they want to know is if they can appeal the decision. I have to explain that while appealing to court is, legally speaking an option, your chances of winning are somewhere between slim to none, especially for those people who played lawyer and represented themselves. Not to put too fine a point on it, but over the course of my 27-plus years as a lawyer, I have NEVER seen anyone who lost a do-it-yourself appeal who I thought had ANY chance of winning an appeal in court.

It’s important to understand that if you appeal to court, it has nothing to do with merely disagreeing with the result, but rather proving that the process used by the hearing officer to get that result was legally flawed. In other words, the law provides the hearing officers with a lot of discretion to say yes or no, and even if a Judge concludes that he or she would have ruled differently, that’s not enough to overturn the decision. Instead, the Judge basically has to find that the hearing officer committed a certain kind of significant legal error. Good luck with that. Of the handful of court appeals I’ve done over the last decade or so, I’ve won them all, but those were all cases that I personally handled. If you’ve lost, or you do lose a license restoration case, it almost certainly means that you’re going to have to wait until you can file again next year to get it right.

In most of my prior driver’s license restoration articles, I have broken down and examined what actually happens in a Michigan license reinstatement or clearance appeal hearing. I’ve also written articles covering the all-important prep session I have with every client before he or she walks into the hearing room. In this article, I want to go beyond the mechanics of the hearing itself and dig deeper, into its real meaning and purpose.

222-300x189Procedurally, a hearing mostly involves answering questions. Depending on which hearing officer is presiding over it, most of the questions will either be asked by him or her, or by the lawyer, instead. Every hearing involves a certain number of the same core questions, although each hearing officer has his or her own particular areas of interest. For example, if a person answers that he or she still goes to AA meetings, one hearing officer may ask something about the steps, a second may want to know how often he or she attends, while yet another may just say “okay,” nod, and then move on to a different subject.

One of the most important things I try to get across to my clients as we start our prep session is to relax, because I think there is a huge overestimation about the importance of the hearing. To be sure, this is a critical step and nothing about it can or should be overlooked, but this general idea that somehow, when a hearing begins it suddenly becomes “SHOWTIME!” is all wrong . As I want to make clear in the next paragraphs, the hearing itself is really nothing more than just an opportunity to tell your story and answer questions about it. It may sound trite, but as long as we’re going in to tell the truth, then there is absolutely nothing to worry about.

In part 1 of this article, we examined the first 2 requirements for a successful license appeal file with the Michigan Secretary of State: being genuinely sober and legally eligible. A person who has not honestly quit drinking is exactly who the state wants to prevent from getting back on the road. We also saw how you must be legally eligible, time-wise, to file an appeal. No matter how sober you are, you can’t file until your period of revocation is over. Although the initial period of revocation is straightforward, this can become a problem because revocations get extended if someone gets caught driving in the meantime. I also made clear that while these 2 things are essential to being able to file and win a license restoration or clearance case, there is one other key requirement, that you be “practically eligible,” as well. The notion of being “practically eligible” is kind of an umbrella term that means you must meet all of the state’s other criteria for granting a license appeal.

three-300x208What are those “other” criteria? Here we stumble into things that have developed as interpretations of the license appeal rules. Most of these things are either not obvious or otherwise unknowable no matter how many times you read the published rules. In many of my previous articles, I have called these mostly unwritten requirements “a million little rules.” How many ever there actually are, the larger point is that these are not specific points of law, but rather the interpretation and application of the broader law and rules in the real world.

Consider this example: “sobriety” is counted only when it’s considered “voluntary sobriety.” This means that, generally speaking (with a huge and notable exception for sobriety court – more on that later), any time a person spends on probation or parole without drinking is still not considered voluntary sobriety, because the person is under orders to not drink and risks punishment for doing so. Such oversight with the underlying threat of punishment is called a “controlled environment.” Often enough a person will quit drinking right after a DUI arrest. The way the state sees things, it doesn’t matter how strongly such a person may have committed to sobriety on the inside, but rather what can be observed on the outside. Thus, it’s really only when a person is no longer required to not drink that we can see his or her sobriety as being truly voluntary.

As a Michigan driver’s license restoration lawyer who handles and wins about 200 cases a year, I must be able to quickly assess a situation to determine if and when a person can move forward and win his or her license back. This analysis is instinctive to me and my staff, as it should be for any office that concentrates in driver’s license restoration cases. As I was thinking about this, I realized that explaining it would make a good article, because there are 3 primary things that determine if and when a person can move forward with a license reinstatement or clearance appeal file with the Michigan Secretary of State. In this short, 2-part installment, we’ll look at each of them, and how they interact.

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There is a specific, important order to the 3 conditions that that must be met in order to file and win a driver’s license appeal, and I’ll explain why as we go through them. First, and by far most important, I need to know if you have quit drinking. If not, then there’s no need to look at anything else, because you must be genuinely sober to win a license appeal. Second, I must confirm that you are legally eligible to file. The state has very specific rules about when you can proceed, and there is no getting around them. Third, you must also be able to win (or, to put it another way, “practically eligible” to win) your case. This means that beyond the sobriety and simple time requirements, you must also meet certain other criteria established by the state.

In the last article posted to the driver’s license restoration section of this blog, I outlined how my first-time win guarantee is not only good for the client, but also helps keep me in check from taking a case that won’t win. As I pointed out, I handle about 200 or so license cases each year, but, in truth, those represent less than half the inquiries I receive. Most people who contact my office – ready and willing to pay my fee, no less – aren’t completely sober. I don’t take those cases. Beyond all the ethical, moral and practical considerations (the whole point of the license appeal process is to make sure a person has honestly quit drinking and is a safe bet to never drink again), I guarantee to win every case I take, and people who are unable to prove they’ve really quit drinking simply cannot win. My guarantee ties me to each client until we’ve won, and to be blunt about it, I make my money winning these cases the first time around, not getting stuck doing “warranty” work that effectively doubles my effort while slashing my income in half. This makes it imperative that I correctly sort the winners from the losers before I jump in. Now, let’s examine how I do that.

One of the best things about my guarantee to win every Michigan driver’s license restoration and clearance case I take is that it’s good for the client, but it also serves me well because it prevents me from accepting a case that’s not ready to win. As much as I have written about the license restoration process, how things are done in my office, and even my guarantee, it only recently occurred to me that my guarantee is really a 2-way street, and that it protects me from making a mistake in accepting a case in the first place as much as it does from making one in any case I have already taken.

0a7b6d160fa485dc2a7f97449bf7e3c8-300x278Sure, it’s great for me to be able to boast that any potential client will only pay me once to get back on the road. Most people correctly understand that to mean that I make my money winning license appeals the first time around, not having to come back next year and do “warranty work.” This effectively removes the risk for anyone who hires me. But it’s not just the client who takes a risk in this transaction; I do, as well, because if I don’t succeed, my work load doubles, and my profit gets cut in half. The way I see it, this provides a great incentive for me to win the first time around, but to also make sure that I don’t accept a case that is not quite ready to succeed.  In a sense, it keeps me honest to both my client and myself.

If I didn’t have a guarantee that obligated me to stick with my client until he or she wins, it might be easier to persuade me to take a case that’s not so good. For example, while I am sympathetic to how badly some people need to be able to drive again, needing a license has nothing to do with being able to win it back. People will often express a sense of desperation about how much they need to be able to drive, and how much not having a license is holding them back. I feel for that.  Because of my guarantee, however, I will never get sucked into that kind of mess and file a license appeal unless I know the person can and will win it. As one of the Secretary of State hearing officer puts it, “everybody needs a license.”

When it comes to driver’s license restoration and clearance cases, winning is everything. For my part, I guarantee to win every case I take, but despite that, lots of people still ask about my win percentage. As numbers go, my win percentage has always stayed right around 98%, but even at that, the lawyer in me cannot resist wanting to explain the other 2%…

– Like when some guy testifies at his hearing that he has been completely alcohol-free for about 5 years, and toy-car-vs-real-car-on-slope0-1-1then the hearing officer spins his computer monitor around and asks why he has pictures of himself and a few of his buddies on a boat from the previous summer, and they’re all drinking and holding beers in their hands.

– Or when a person with 8 or 9 DUI’s and who doesn’t have a ton of sober time asks me if we should wait to file, and I explain that we could wait forever, remaining stuck in what is called the “paralysis of analysis,” but since my guarantee means you’ll only pay me once to get back on the road, I suggest we go for it so that if we do lose early on, we’ll be all set for the next appeal.

In part 1 of this article, we began looking at some of the more important facets of the substance use evaluation relative to it’s role in a Michigan driver’s license restoration or clearance case.  I pointed out that a license appeal must be denied if the evaluation’s prognosis is either “poor,” “guarded” or “fair,” and noted that a “good” prognosis is almost always better than “excellent.”  We then moved on to explore the role of the evaluator, observing that the evaluator must be honest, good and thorough.  The lawyer must be all those things, as well.  Although I don’t actually complete it, I have an important role in the substance use evaluation, as well.

6a00e0099631d0883301b8d2b85c78970c-800wi-150x150For my part, I meet with every client for a first 3-hour meeting before they have their evaluation completed, and I fill out a form of my own creation called a “substance abuse evaluation checklist” that covers everything the evaluator must and should go over.  This form is probably somewhat redundant when presented to an evaluator as good as mine, but it’s that attention to detail that’s part of how and why I guarantee to win every case I take.  The key requirement for me to take a case is that a person must have honestly quit drinking; this sobriety requirement is non-negotiable with either me or the state.  From there, everything must be done right, and I make sure it is.

In a very real way, “preparing” a client for the substance use evaluation means sketching out his or her recovery story.  No matter how you cut it, there is a story behind every person’s decision to get sober and transformation from drinker to non-drinker.  Few people have probably ever thought of it in this way, so my job is to pull out all the details.  No one quits drinking because it’s working out so well.  What was the real motivation to stop?  How did you make it work?  Right after a person decides to become alcohol-free, there tends to be a void in his or her life, or at least social life.  Weekends spent drinking or hanging out with the drinking friends are gone; what did you do, in place of that?  Inevitably, you will start doing different things, and grow as a person.  For most people, getting sober means regaining the trust and respect of those who really matter.

The substance use evaluation is really the foundation of a Michigan driver’s license restoration or clearance appeal.  At its most basic, it is supposed to be an objective, clinical examination of a person’s alcohol and drug use history and an assessment of the person’s current relationship to those substances, followed by a prognosis of the likelihood that the person will be able to remain clean and sober.  Ultimately, that prognosis is seen as a kind of prediction about the person remaining alcohol and/or drug-free.

downloadThe prognosis is provided within its own section of the substance use evaluation form, and the evaluator must check a box indicating that it is either “poor,” “guarded,” “fair,” “good,” or “excellent.”  By rule, a license appeal must be denied if the prognosis is either “poor,” “guarded” or “fair.”  In other words, you can only win if your prognosis is either “good” or “excellent.”  It seems natural to think, then, that “excellent” would be the best prognosis you could get, but that’s actually not correct.  In this article, I want to examine some of the more important aspects of the evaluation, including how and why a “good” prognosis is almost always better than “excellent.”

This is kind of an extension of the idea that “more is better.”  After all, an “excellent” prognosis certainly seems better than one that is just “good.”  In the broader context of recovery, however, and within the more limited scope of a license appeal, the prognosis of “excellent” is reserved for a special few people.  For example, some old guy with 28 years of sobriety, who has been attending AA at least twice a week for all that time, has outlived his first sponsor, has 3 sponsees of his own, has been the treasurer of his home group for the last 15 years and who runs the annual 4th step retreat is a candidate for an “excellent” prognosis, while for just about everyone else, “good” is more appropriate.  Key here is that a “good” prognosis is more than good enough to win your license appeal, and, in its own right, is an excellent thing to have on your evaluation.

Driver’s license appeals are intended to be hard to win. The Michigan Secretary of State has very strict standards for returning driver’s licenses. To be clear, this process has nothing to do with how much you may need a license, how long you’ve been without one, or that you haven’t been in any kind of trouble for a long time. Although this is a deep subject, the simplest way to put it is that the state wants to make sure that no one who loses his or her license for multiple DUI’s gets back on the road until they can show that they won’t drink anymore. Ever. Whatever else, people who don’t drink alcohol aren’t any risk to drink and drive again, so the line in the sand has been drawn there, meaning a person must demonstrate, by what is defined as “clear and convincing evidence,” that he or she has quit drinking and is likely to remain alcohol-free in order to have any chance of winning his or her license back. The whole license appeal process involves what I call “a million little rules,” but for all of that, timing is everything, and if you file your case too soon, you’ll run straight into a denial.

download-300x275 You must have enough sober time under your belt to win a license restoration or clearance case. Under the main rule (Rule 13) governing license appeals, a person must have at least 6 months of complete abstinence from alcohol to even be in the ballpark, legally speaking, to win his or her license back, BUT, and this is huge, the same rule specifically provides that the hearing officer may require at least (meaning more than) 12 months abstinence in just about any and every case. In the real world, you will always need more than a year of sobriety to have any chance of getting your license back. I guarantee to win every license appeal case I take, and in my practice, I generally want at least 18 months of genuine sobriety before I’ll let any of my clients sit for a hearing. And for all of that, I like it better when someone has even more clean time.

Not having enough sober time is a sure way to lose a license appeal. So how much is enough? You’re going to love this typical lawyer answer: it depends. Indeed, one of the reasons I can claim the title “driver license restoration lawyer” is that I can look at all the factors of a person’s situation and just “know” how much sober time is enough in any given case.  Let me explain that with a few examples:

As a Michigan driver’s license restoration lawyer, I have seen a dramatic rise in the number of ignition interlock violations in recent years, along with a notable increase in the amount of people who lose their driver’s licenses as a result. Although being violated is not good news for anyone required to use an interlock, it doesn’t happen randomly, or without a clear reason. There is usually an objective and understandable cause underlying why violations are brought. We may not like the reasons, but the whole license appeal and violation process is controlled by very specific rules. As it turns out, almost everyone who has his or her license taken away again because of an interlock violation could have avoided it. Perhaps the most regrettable of these situations is when I’m contacted by someone after they’ve gone and tried to represent themselves in a violation hearing, lost, and then wonders if there’s anything that can still be done. Almost without exception, the answer is always no.

Why-2-300x232This could almost sound like a set up for some self-serving piece where I tell the reader to just “hire me,” but it’s not. Whatever else, the idea of hiring me (or any lawyer, for that matter) after you’ve lost a violation hearing is a perfect example of the old saying “a day late and a dollar short.” Ideally, it’s best to avoid a violation altogether, but the likely reality is that it’s probably too late for just about anyone and everyone reading this to do that. This isn’t as academic a notion as it sounds, because there is a section in every winning order granting a license appeal about proper ignition interlock use, that, if followed, will prevent most violations from ever happening in the first place, while providing instructions to get the evidence needed to successfully defend yourself and win your license back at a violation hearing in the event it cannot be avoided.

We’re not going to get into all the different kinds of violations and how they should be handled, lest we start examining an almost endless list of possible scenarios. Instead, I want to look at why the Michigan Secretary of State seems so keen to issue violations in the first place, because that is directly relevant to how they should be handled. First off, in answer to a few questions that haven’t been asked yet: Yes, this is (in many cases) unfairyes, this does suck, and no, it doesn’t seem very efficient. Once you receive a notice of violation, however, there is nothing you can do to stop it from taking effect. In other words, you are going to lose the ability to drive, at least until this is resolved.

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