Articles Posted in Driver’s License Restoration

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, at least this doesn’t happen randomly, or without a clear reason. In fact, there is usually an objective and understandable cause underlying why most 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 in an 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.

I handle a lot of appeals to clear a Michigan “hold” on a person’s driving record so that he or she can get (or renew) a license in another state. In fact, somewhere around 1/3 of my license appeal clients come from out of state. In the course of my practice, I get tons of emails from people who need to obtain clearance of a Michigan hold on their driving record. Understandably, many of them inquire about using my services in a limited way to “help” out with an appeal, because they’re trying to avoid coming back here. In this article, I want to explain why I won’t do that for any amount of money, and why coming back is the key to winning your clearance the first time around.

Letsfixthisalittlebit_7cdd9205ebc87243e945fbfb39104d4fThe Michigan Secretary of State allows a person who now lives out of state to file what is called an “administrative review,” which is actually an appeal-by-mail, in order to try to obtain a clearance. Every year, 3 out of 4 of these appeals are denied. No one really knows how many times those who do eventually win have tried in the past, but the bottom line is if you’re looking to try this route, it’s a clear signal that you don’t fully understand the process. That’s not an insult, because here, in Michigan, very few lawyers understand the license appeal process, either. In fact, the reason I won’t touch administrative review cases, despite the financial incentive to do so (less work for the same money), is precisely because I DO fully understand the process, and see how an appeal by mail is entirely inferior to a conventional license appeal, which also includes a hearing, something that is conspicuously absent from the decidedly lazy and second-rate, shortcut method.

There’s a reason I guarantee to win every regular, in-person license case I take, and that’s because I not only start with a genuinely sober client (or I won’t start at all), but also because I control every aspect of the process. To be clear, the only difference between an administrative review and a regular clearance appeal is that the administrative review is decided on the documents alone (without a hearing), whereas the regular appeal is decided after a hearing. It’s not that the hearing itself is such a big deal to me, but rather that when my clients come back, I begin to make sure I exercise proper quality control because they’ll first see me for 3 hours at our initial meeting, get prepared for and then go to have their substance use evaluation completed by MY evaluator, whose office is just a few blocks away. After that, I personally handle every step we take. My clients will send me draft copies of their letters of support for review and correction before they are ever notarized. Ultimately, I double and triple-check the entire package of evidence, including the substance use evaluation and all the letters, before it’s submitted. Finally, I prepare each and every client for the hearing so that when we go in for it, all they have to do is tell the truth.

In my role as a Michigan driver’s license restoration lawyer, I written every article this blog, which is by far the best and most comprehensive resource for information about every facet of the license appeal and clearance process on the internet. One thing that I have to bring up regularly, just to keep squarely within view, is that you must have quit drinking in order to win your license back. While I guarantee to win every case I take, I do not take every case that comes my way, and will only accept cases for people who genuinely do not drink anymore. I get endless emails from people who tell me how much they need a license and how long they’ve gone without one, but when I ask how long they’ve been sober, things suddenly go quiet. In this familiar-themed article, I want to make clear, once again, that you must have completely severed your relationship with alcohol as a pre-condition to winning a driver’s license clearance or restoration case filed with the Michigan Secretary of State’s Administrative Hearing Section (AHS).

89b6b6b380687d516ec55270162905f7-213x300Look, I’m in business to make money, not turn away people who are willing to hire me. However, I do have a conscience AND a guarantee, so I simply cannot and will not take on a case that cannot win. Sobriety is a non-negotiable requirement to win your license back. I was speaking with another lawyer recently about this, and he kind of laughed in agreement and said that once, when he asked a guy if he was sober, the reply was something like, “Yep. I only drink beer now.” Among other things, over 27 years as a lawyer has taught me that many people simply don’t understand that an important part of what sobriety means is that you have completely stopped drinking. For its part, the Michigan Secretary of State (SOS) has drawn a line in the sand regarding license restoration and clearance appeals; only people who have quit drinking for good can win. Period. The state knows that, whatever people will say about how they are “different” now when it comes to drinking, and despite all the commitments and promises they make to never drink and drive again, those who no longer drink alcohol are exactly zero risk for a repeat performance. That’s the safest bet, and the only one the state will make. It’s that simple.

At least to me. And the Secretary of State. Part of the problem here is that everybody needs a license, so when some of them go online and find something like this blog or my website, see that I guarantee to win every case I take, they think, “Eureka!” It’s human nature, I suppose, for someone to focus more on how tough things have been without a license and how long they haven’t had one, than anything else. It’s perfectly understandable that a person will believe, in his or her heart of hearts, that no matter what, they’ll never drive drunk again. Under the main rule (Rule 13) governing license appeals, however, a person has to prove that he or she has been completely abstinent from alcohol for a sufficient period of time (in the rule, this is stated as the person’s alcohol problem being “under control“). The Secretary of State’s AHS hearing officers are given rather wide discretion in determining how much abstinence is enough (i.s., “sufficient”). More important, the second part of the rule requires that a person prove that his or her alcohol problem is “likely to remain under control,” which means that he or she has the commitment and the tools to remain alcohol-free for good, and otherwise seems like a safe enough bet to not drink again. This is really the “meat and potatoes” of the license appeal process – proving that a person will never drink again.

In part 1 of this article, we began our examination of the ignition interlock unit that must be used for at least a year when a person wins (shameless bit of self-promotion here: I also noted that I guarantee to win every license appeal case I take, so for my clients, getting back on the road is definitely a “when” and NOT an “if”) a Michigan driver’s license restoration case. Along with the interlock device, a person is required to drive on a restricted license for at least the first year after winning his or her license back before being able to appeal again for a “full” license. Here, in part 2, we’ll finish our examination of missed and positive tests, and then we’ll go on to look at a number of other important factors about the interlock, including positive alcohol readings, how to avoid an ignition interlock violation in the first place, and what you should do if (and when) you run into trouble.

Blower-2-300x274It is important to understand that when a person misses a test, it’s about a lot more than just showing a proving that he or she hadn’t consumed alcohol before he or she missed a test. That’s helpful, but it doesn’t answer why the test was missed in the first place, nor does it otherwise excuse not taking the test when required. Think of it this way: in many cities, on-duty firefighters are required to be in the firehouse while on duty. A firefighter can’t skip going to the firehouse on a workday and, when confronted with skipping work, demand pay and defend him or herself by pointing out that there were no fires or runs that day. As much as the firefighter’s job is to be at the firehouse, if a person is on an interlock, it’s his or her job to provide a breath sample when requested. Missing a retest will automatically cause a violation that revokes a person’s license all over again.

In the real world, most missed tests occur because a person is out of the vehicle for a few minutes (maybe he or she has run back into the house to get something) and doesn’t hear the alarm, only to subsequently notice that they missed providing a sample once they get back in. If that sample isn’t provided within the 5-minute window, then it’s too late. And to be clear, the window is EXACTLY 5 minutes; even at 5 minutes and 1 second later, a violation is automatic. The Secretary of State, for its part, provides specific directions, within the body of the order granting a license appeal, about to avoid this, as well as specific directions about what to do if a person does, in fact, provide a sample that registers positive for alcohol. This information is toward the back of the order, and, unfortunately is often missed by people who are so happy to have won that they stop reading at the point of being told what providers they can use, or who scan it quickly and then forget about it.

My last blog installment was a 2-part article in the driver’s license restoration section of this blog was about about how every Michigan resident who wins back his or her license must drive for at least the first year with restrictions. In that article, I pointed out that an ignition interlock unit is also required for that first year, and I promised to examine how that works in a separate, upcoming piece. This is it. In a sense, the interlock might just be the hardest simple thing you will ever have to deal with. In this 2-part follow up, I want to explain a little bit about what it’s like to “get on” the interlock, what you can expect while using it, and pass on a few tips to avoid screwing it up, as well. To be clear, NONE of this applies to someone who is not a Michigan resident. If you don’t live in Michigan, but have a Michigan “hold” on your driving record, the Michigan Secretary of State (SOS) cannot issue a license to you. Instead, if you win your license appeal, the SOS, through its administrative hearing Section (AHS) will remove the hold. This is technically called a “clearance,” and getting it allows a person to get a full license in whatever state he or she lives. Michigan residents, however, must always start out with a restricted license and use an interlock for at least 1 year before they can appeal again for a “full” license, and there is NO way around this.

Blow-2-300x222The way it works is that when you receive the order from the Secretary of State granting your appeal, it contains instructions about how to get an interlock on your vehicle (it doesn’t have be in your name or even be “your” vehicle, but it’s best if you’re the only one who will drive it because whoever does has to know how to use the interlock, and you’ll be held responsible for any problems with it, even if caused by someone else). You’ll have to use one of the providers approved by the state. You must get the interlock installed and take proof of that to a Secretary of State branch office before your restricted license will be issued. I’m often asked how much the interlock costs; although they vary, a person can count on spending between $70 to about $100 per month. There are always deals on installation, and my office provides coupons for discounts to all new clients. It’s not dirt cheap, but it’s not a bank-breaker, either, and you only have to do it for a year.

Sounds easy, right? In a sense, it is, and of course, my office is always available to help any of my clients at every step along the way, from helping find an interlock provider to handling problems in order to avoid a violation while using it. The cold truth, however, is that some of the interlock providers don’t do a great job of explaining how the device works. A client once said that he knew this whole thing was going to be a challenge when he saw that the “technician” assigned to install the unit and teach him how to use the device was seriously into “ear stretching” and had obviously been into “gauging,” meaning sticking ever-bigger discs in his his earlobe holes, for quite some time. I’m sure that wasn’t a sight to inspire confidence. It’s not always like that but I’d also certainly caution against  showing up at the interlock place and expecting to meet someone in a clean, white lab coat, either.

In part 1 of this article, I made clear that anyone who wins a driver’s license restoration case and is a Michigan resident must spend at least one year driving on a restricted license, using an ignition interlock (a subject we’ll examine in an upcoming installment).  A non-resident of Michigan, but with a Michigan hold on his or her driving record, must present the exact same evidence to win a clearance of that hold.  Because Michigan cannot issue any kind of license to a non-resident, getting a clearance enables him or her to go and get a “full” license in whatever state they live.  We next saw that for Michigan residents, however, there is absolutely no way around starting out with a restricted license (and interlock) for at least 12 months after you win your license appeal.  We concluded by listing the 5 provisions of a restricted license, explaining that the 5th (things ordered by a sentencing court) doesn’t apply to anyone winning a license appeal, and then moving on to briefly examine the scope of a person’s ability to drive for employment and medical purposes.  Here, in part 2, we’ll pick up by examining, in turn, remaining 3 provisions of a restricted license, and how the terms of those restrictions can be modified.

StartSmallThinkBIG-224x300The restriction for educational (school) purposes (to and from any school or educational program of the person holding the license) allows a person to drive to and from any kind of formal schooling.  And to be clear, this third restriction means that while a person can take a class in art appreciation at the local community college and can drive him or herself to and from it, he or she cannot take their own kids to school, nor even drive a sick child to something as important as lifesaving kidney dialysis.  While there is no limitation on a person’s ability to drive to and from school, the rule does not allow a person to drive for school, so if a teacher orders everyone to do a field trip to a local museum, the restricted license does not cover that.  In other words, unlike the restriction for employment, that allows a person to drive to, from, and during the course of (meaning for) work, the school restriction only permits driving to and from school, not during the course of anything required (i.e., for) it.

The support group restriction (to and from any support groups), like that for school and medical treatment, enables a person to drive “to and from” any recognized support group meetings, like AA.  There are other sobriety support group programs other than AA, and the terms of a restricted license permit a person to drive to them, as long as the group is one that is legitimate and “recognized.”  It’s easier to figure out what is not recognized rather than name off every legitimate group out there.  Thus, a person cannot create and attend “The Sober Monday Night Football Watchers” or anything like that.  The “to and from” means that you can go from home to the meeting, and then back home thereafter, but if a group of people goes out after the meeting for coffee, or to get a bite to eat, that’s not permitted.

This 2-part article will explain why, if you file and win a Michigan driver’s license restoration case, you must start out with a restricted license, and what that means. I also want to differentiate a driver’s license restoration case from a license clearance case, particularly because winning restoration of your Michigan license requires starting out with an interlock and driving restrictions, while winning a clearance of a Michigan hold is the only way to win a “full” license the first time around. Having just said that, I can almost hear a chorus of readers saying something like, “That’s what I want, then; a clearance.” If it was that easy, everyone would bypass the interlock and restricted license. It doesn’t work like that, however, and, in the following paragraphs, I will explain why. We’ll confine our examination here to restricted licenses, and take up the subject of ignition interlocks in a separate, upcoming article.

Stopper-300x293First, let’s clarify the 2 key terms: a “license restoration” means to restore, or win back, one’s Michigan driver’s license. A “clearance,” on the other hand, is the process by which the Michigan Secretary of State, through it’s Administrative Hearing Section (AHS), removes the hold on a driving record for someone who is no longer, or is otherwise not a Michigan resident. To be clear, while most people who wind up with a Michigan “hold” on their driving record used to be Michigan residents, it is also possible for someone who never lived here to still wind up with a Michigan hold on their driving record. A clearance removes that hold and allows that non-resident to get a license in the state in whatever state he or she now resides.

Thus, restorations are for residents, clearances are for non-residents. The Secretary or State cannot issue a driver’s license to a non-Michigan resident. This is pretty straightforward, but just about everyone, including many lawyers, use terms like “restoration” rather loosely, so lots of people are unclear about the differences between a clearance and a restoration. What makes this even more confusing is that a person must present the exact – and I mean absolutely the same – evidence to obtain a clearance as he or she would to restore a revoked Michigan driver’s license. The only difference is the end result: a non-resident can only be granted a clearance releasing Michigan’s hold so that he or she can get a license in whatever state they now live, whereas a Michigan resident can only have his or her driving privileges restored, and that requires him or her to drive for at least one year on a restricted license using an ignition interlock device.

This will be the third and final installment in a recent, non-sequential group of articles about the role of drugs in Michigan driver’s license restoration and clearance cases. In the first piece, we looked at how the use of certain, “risky” medications can imperil a license appeal, while in the second, we saw that the use of medical marijuana, in any amount, will completely derail it. In this final piece, I want to focus on the non-medical, recreationional use of drugs. The first and, I’d hope, most obvious difference is that whereas with medical marijuana, and, for the most part, medication, the focus of inquiry here is more on past use, because it should be clear that anyone who currently uses recreational drugs is a million galaxies from being anywhere near eligible to win a license appeal. Thus, in this examination, we look backwards, into the past.

drugs-web-crop-300x259When a client comes in for his or her first, 3-hour meeting, we elicit the information necessary to complete all the forms required by the Michigan Secretary of State’s Administrative Hearing Section (AHS), the body whose hearing officers actually decide license cases. One of those forms requests very specific information about a person’s lifetime drug use history, so we’ll spend the time to cover that section thoroughly. That sounds pretty easy and straightforward, but decades of experience have taught us that people can easily either forget to list, on that form, some substances they’ve tried (even if only once or twice), and then remember them at the hearing, when asked, or, conversely, list certain substances on the form, and then forget to include them in an answer at their hearing, neither of which situations adds to their credibility or is otherwise helpful.

Now, if that was all there was to this, we could just end the article right here and say, “remember, don’t leave anything out!” Although omissions about past drug use are easily made, and most often not done with any intent to deceive, they always complicate things and can very often spell the quick end of a license restoration or clearance case. Yet there’s way more to this than just making sure the lawyer lists all of the drugs a person has tried on the appropriate form and that the person’s testimony is consistent with that. All prior drug use must also be disclosed to the evaluator, who must properly diagnose the same within the substance use evaluation, as well. It would be easy to caution someone to “just be honest,” but otherwise honest people often make honest mistakes, or honestly forget things, so when it comes to drugs, a person needs to be both honest and thorough.

One of the quickest ways to lose a Michigan driver’s license restoration or clearance appeal is to use medical marijuana. This will actually be a very short article because there isn’t much legal analysis beyond the reality that if you do use medical marijuana, your license appeal case will be denied by the Michigan Secretary of State (SOS). In fact, most of the rest of this article is going to essentially answer all the “ but what about” kinds of questions that people have because they have a hard time understanding that there is no exception to the proposition that you cannot use medical marijuana and win a license restoration or clearance appeal case.

MMMA-LEAF-AND-SYMBOL_full-1-300x291In my role as a Michigan driver’s license restoration lawyer, I win licenses back for people under the rules established by the state. I don’t make those rules, not do I have the power to change them. I point this out because anytime someone brings up medical marijuana in the context of a restoration case, once I explain how that’s a deal-breaker, they want to argue to me how it’s unfair and why that’s wrong. None of that, however, changes the simple fact that, as of this writing, using medical marijuana will prevent you from winning your license back because that’s the way cases are decided by the SOS’s Administrative Hearing Section (AHS) under the rules as they exist now, and without a specific change in the law, it’s not likely to change any time soon, either.

Here’s the simple truth that’s going to piss a lot of people off, but I’ll do it anyway, given how I’m always going out about how honest I am and that I tell people what they need to hear, rather than just what they want to hear: a person in recovery is supposed to avoid any and all mood and/or mind altering drugs, as well as any drugs that can be potentially habit forming, unless there is no medical alternative, and even then, such use should be under the careful and direct supervision of a doctor who knows all about the person’s addiction problems. I’ve never seen anything remotely close to that with medical marijuana.

The use of certain prescription drugs is one of the most overlooked things that can completely derail a Michigan driver’s license restoration or clearance appeal. There is no mention of this in the Michigan Secretary of State’s “Driver License Appeal Practice Manual” or “Driver License Appeal Promulgated Rules” (both last updated in 2005), so the only way a lawyer learns about the role of drugs in license appeal cases is by finding out the hard way. It has been a while since I’ve addressed this topic and, with recent and ongoing developments in Michigan’s Medical Marihuana law (for my part, I have always spelled it “marijuana”), I think it’s time we look at this rather deep subject over several installments. In this piece, I am going to look at the role of prescription medications excluding medical marihuana, which we’ll cover in an upcoming, separate article. Our examination here begins with the assumption that a person has honestly quit drinking because that is a necessary and non-negotiable first requirement to win a license appeal.

unnamed-300x232Part of filing a license restoration or clearance appeal is answering questions about any prescription medication a person takes. This information must be listed in the “Request for Hearing” form required by the Secretary of State’s Administrative Hearing Section (AHS – formerly known as the DAAD, and the DLAD before that). In addition, and depending on the kind of medication being used, it must be listed and properly addressed by the evaluator in the substance use evaluation form. The catch, and the key to all of this, is that single word in the preceding sentence: “properly.” It’s easy throw that word out and have the reader gloss over it without giving it much thought, in the way one might read something like, “An investment of $10,000 today, properly managed, can grow to ten times that amount in a decade or even less” and not realize that, in that case, “properly managed” means finding the one-in-a-million, miracle investment. In the world of license appeals, any prescription drug use is going to be examined closely, so the lawyer better know what will fly and what will crash.

In that sense, then, “properly addressed” involves a lot. It first presumes that the lawyer sends his or her client to a competent, experience and qualified substance abuse counselor for the evaluation. This is where things can start to get deep, because there are very few lawyers, like me, whose practice focuses primarily on driver’s license restoration cases, while there are tons of others who say they “do” them. Those of us who concentrate in this field usually have a very small circle of evaluators we use, and, in my case, one who is primary amongst them all. In turn, there is no shortage of counselors who claim to “do” evaluations, because the form used by the state seems (emphasis here on “seems”) pretty straightforward. It takes a long time, and a lot of time, before a counselor learns all the things that go into the evaluation that are NOT obvious from just looking at it. For my part, I have taken my primary evaluator with me to multiple license appeal hearings to see, in person, how the evaluation is examined and interpreted by the Secretary of State’s hearing officers. That’s the kind of continuous and direct experience that allows an evaluator to “properly address” something.