Michigan Criminal Defense Lawyer Blog
In order to win a Michigan driver’s license restoration or clearance appeal, you must prove that you have quit drinking for good. This requires more than just saying so. In this very short article, I want to make clear that the first and main requirement to win your license back is that you no longer drink alcohol. Although I frequently publish articles about recovery and sobriety, my staff has suggested that I put up something brief and more straightforward, because we still get lots of calls from people who seem to misunderstand the concept of sobriety and mistakenly think that being sober means something other than that you don’t drink anymore. Thus, we’ll begin with this very simple declaration: you cannot win your license back if you still drink, however “occasionally,” or even if you think you can still drink at any point in the future.
We often hear from folks who think that they somehow “deserve” to be able to drink because they haven’t had a license or otherwise been in trouble for a long time. This kind of thinking misses the target by about a million miles, because the whole point of the license appeal process is to ensure that the only people who get back on the road are people who have quit drinking for good. The Michigan Secretary of State, through it’s Administrative Hearing Section (AHS), the body that decides driver’s license appeals, has a duty to protect the public by making sure that some risky drinker doesn’t get his or her license back, drive drunk again, and then kill someone.
You have to understand that, from the state’s point of view, once a person has his or her license revoked for racking up multiple DUI’s, he or she is considered too risky to be allowed to drive again unless and until he or she quits drinking for good. The state will never – and this is key – NEVER give a license back to someone with multiple DUI convictions who still drinks alcohol, or even thinks he or she can. The bottom line is that such a person has proven that, at least some of the times he or she drinks, bad and dangerous decisions can follow. That, in and of itself, is considered too much of a risk. The interests of public safety are much greater than the transportation inconvenience of someone who, by law, has been categorized as a “habitual alcohol offender.” On the other hand, the state also knows that people who don’t drink are exactly zero risk to drink and drive.
It is a given that nobody sets out to develop a drinking problem. Sure, there are some people who, by their partying behavior and wild attitude seemed destined to run headfirst into one, but had you ever confronted them during the time they were acting all crazy and drinking too much, they would have dismissed your concerns. The point is that when a problem begins to develop within a person, he or she is almost always the most blind to it, and usually the last to see it – if they ever do. The sad truth is that most people either don’t ever see themselves as having an alcohol problem or, if they do, are unable to get over it. Thus, it is a starting point for any discussion of recovery that most alcoholics (that term is used loosely here, and really means anyone whose drinking has begun to cause problems) DO NOT recover. In fact, from what we have come to know about the development, diagnosis and treatment of alcohol use disorders, the simple fact remains that recovery is far more the exception than it is the rule.
This is important, because it means that to wind up with a good evaluation that bears the required hallmarks of integrity, you have to be genuinely sober in the first place. If you still drink, or think you can still drink, forget trying to win a license appeal, and forget trying to fool a good evaluator. The whole reinstatement process is designed to make sure that only those people who do not drink, and who have the commitment and ability to remain alcohol-free for good, are allowed back on the road. For everything we can and will say about it, the main purpose of the evaluation is to provide the hearing officer with a clinical analysis of how likely a person is to NOT drink again. A competent evaluator isn’t going to mistake someone who still drinks, but talks a line of BS about not drinking anymore, for someone who is really sober and has made the dramatic life changes that go along with that.
The consumption of alcohol leads to a lot of problems for some folks. To be sure, most people never run into legal issues as a result of drinking. If they do its something like an MIP as a kid, or maybe a DUI as an adult, but they learn their lesson and never get into trouble again. Yet for all of those who either never get in trouble or who get past one unfortunate incident involving alcohol, there are plenty enough who seem to keep drinking despite the fact that they keep getting into trouble for it. This kind of self-defeating behavior is clear in repeat offense DUI cases, but it also is there, if not so obviously, in probation violation and ignition interlock violation cases where someone gets caught after having consumed alcohol when they shouldn’t have. As I noted in the previous installment, the problem with articles like this is that most people usually find them after the fact, when they’re already in trouble. Even if that’s the case here, I want to give the reader something to think about so that he or she can resolve to not make the same mistake again.
To keep this article short, let’s skip all the background analysis about the why and how of violations and begin with the proposition that when you win your license back, the order granting it also contains some very specific instructions about proper ignition interlock use. Unfortunately, many people, in the excitement of being able to drive again, stop reading at the point that tells them where to go to get the interlock installed, and don’t read all the way through to the section about proper interlock use. Others may read it, but either “skim” that section too quickly or otherwise forget most, if not all of it, because things seem to be working just fine and they’re not having any problems with the machine. At least for the time being.
This is not just important, it is everything! The Michigan Secretary of State’s primary focus in license reinstatement cases is to screen out those people who present any risk to ever drink and drive again. The SOS has, for its part, correctly concluded that people who do not drink will not drink and drive, so it has drawn a line in the sand right there, and will only return a license to those people who can prove that they have genuinely quit drinking, and are a safe bet to never drink again. This logic here is really quite straightforward.
A recent experience I had at a violation hearing serves as an excellent example to illustrate my point. My client, for whom I had originally won a license, was violated for missing several rolling retests (meaning that when his interlock unit requested a breath test he didn’t provide one) and for what is called “tamper/circumvent” (because the unit recorded that he had disconnected the interlock handset several times). Although he was able to clear himself for both of those things, his revocation was upheld because, although not part of his formal violation, he also broke some other rules regarding his restricted license. This really gets to the point I’m trying to make here.
In fact, because of the way the law works, if a person whose license has already been revoked has anything placed on their driving record that indicates they were driving, their license will be re-revoked for the same period of time it was originally taken away for (either 1 or 5 years). There is no way to avoid this once something makes it on a person’s driving record, so it is absolutely necessary to make sure that nothing goes on there in the first place. If a person is cited for or charged with any kind of moving violation, including DWLS or DWLR, keeping it completely off their record is essential, and doing that often requires skillful legal maneuvering.
If you wanted to boil down the entire driver’s license restoration and clearance process into one short sentence, it would go much like this: you must prove to the Michigan Secretary of State, through its Administrative Hearing Section (AHS), that you have completely quit drinking alcohol and will never do so again. It really is that simple. Anything else that seems complex about the process has to do with proving sobriety. In the previous article on this blog, I looked at the 3 main reasons why winning a license appeal is so hard, and to a large extent, everything examined there had to do with proof and proving sobriety.
This is due, in part, because of that main rule that govern’s license restoration and clearance cases. The sections that’s most important to our concerns here comprises just 27 of more than 900 words of that rule: “The hearing officer shall NOT order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following…” (emphasis added). This wording is critically important, but it is all too easily (and frequently) overlooked. Think about this; the rule governing license appeals essentially begins with a negative mandate telling the hearing officer to NOT grant a license unless certain conditions are met. The law could just as easily have been written to say something like “The hearing officer shall issue a license if the petitioner, by clear and convincing evidence, proves all of the following,” but it didn’t There was a conscious, deliberate choice to say no, right out of the gate.