Articles Posted in Driver’s License Restoration

The underlying idea for this article came from Ann, my senior assistant, as we were discussing a case where someone had violated the terms of either their ignition interlock or probation by drinking. Although I can’t recall which it was, I had Ann send me an email using the exact phrase she used in expressing her own frustration at the time – “when has NOT drinking ever screwed you up?” – and waited for the right time to use it in an article. My practice is concentrated in DUI cases pending in Oakland, Macomb and Wayne Counties and Michigan driver’s license restoration and clearance appeals for people who live anywhere in Michigan, or who have relocated to some other state. As such, I deal with fallout from people drinking alcohol all day and every day. In this article, I hope to give someone who is in any kind of legal trouble where they should not be drinking a reason to pause and think twice before doing so.

3010-267x300The 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.

The majority of probation violations, especially in DUI cases, occur because someone tests positive for alcohol. This is really the crux of what Ann meant; when someone keeps getting in trouble for drinking, it might be time to take a break and ask, “when has NOT drinking ever screwed me up?” Although many probation violation and ignition interlock violation cases share the same cause – drinking – everything else about them is different. In DUI cases, I make my living in court keeping my clients out of jail, even after they’ve violated probation by drinking when they were forbidden by a Judge’s order from doing so. As we’ll see, things are a lot different, and, yes, even worse, if someone drinks alcohol and winds up with an ignition interlock violation brought by the Michigan Secretary of State, because it means losing your license all over again. For good. Let’s start there first, and get to probation violations in the latter part of this article.

I seem to return to the subject of ignition interlock violations more frequently than ever, probably because they are on the increase and they are a growing part of my caseload. In some of my previous articles, I have examined many of the reasons that an interlock violation can be brought. In this installment, I want to examine 2 different things about violation cases – what you’re supposed to do after a violation like a missed or positive test, and how the Michigan Secretary of State Administrative Hearing Section (AHS) hearing officers, who hear these matters, can be at risk for what I call “violation fatigue.”

Did-You-Know-logo-01-300x233To 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.

And then something goes wrong. Most of the time, at least among my clients, whatever happens is NOT a result of consuming alcohol, and that can lead to a false sense of security. In other words, when a person knows that he or she has not been drinking, it can lead to them assuming that this situation will resolve favorably because they honestly did not consume any alcohol. That’s not enough. One of the main points of the proper use instructions is to make sure a person has independent, objective proof that he or she hadn’t been drinking when there is a problem. This applies when an errant positive test is quickly followed by clean retests, and even when there is no positive alcohol reading whatsoever, like when a person misses a rolling retest.

The fact that I guarantee to win every driver’s license restoration and clearance appeal case I take sometimes leads people to mistakenly believe that all they need to do to win back their driver’s license is hire me. In this short article, I want to make clear that, beyond merely being able to pay my fee, a person must be sober for me to accept his or her case, and, more important, to be able to win it. The first and foremost legal requirement to win a driver’s license appeal case (and for me to take it) is that the client has honestly quit drinking. The whole point of the appeal process is about being able to prove that.

Sober2-300x182This 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.

The purpose of the laws and rules governing license appeals is simple: to prevent anyone who still drinks, or even thinks he or she ever can drink again, from getting back on the road. My office gets tons of calls and emails from people who start off by explaining how much they need their license back, or how long it has been since they’ve had one. To be clear, that doesn’t matter one single bit in terms of qualifying to actually win it back. To be sure, a person must wait until he or she is legally eligible to even start the license restoration process. Under Michigan law, a person who accumulates 2 DUI’s within 7 years will have his or her driver’s license revoked for 1 year, while anyone who racks up 3 DUI’s within 10 years will be revoked for 5 years.

The Michigan Secretary of State (SOS) has been getting tougher on ignition interlock violation cases over the last several years. This is actually, real-world true, and not some exaggeration or mere throw-away line. In point of fact, the SOS has been become increasingly less tolerant of any failure to comply with the terms of a restricted license and/or to properly use an ignition interlock unit. To be sure, nothing is worse than drinking alcohol, but even being able to prove you did not is not enough to win a violation in many cases. In this article, I want to focus in on how violations and other “problems,” not charged as actual violations (and that don’t involve drinking), can still cause you to lose your license.

rules_do_donts-300x168A 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.

The interlock rules provide that if you miss even one rolling retest, it automatically causes a violation; same with disconnecting the handset, or really any part of the interlock device. A violation is a big deal, and begins with having your license revoked all over again. A notice is sent in the mail and you are informed that if you want to try and get your license back, you must file a written request for a hearing within 14 days, or else the re-revocation (this is technically called a “reinstatement of original action”) remains permanent. The interlock unit, of course, is ordered along with a restricted license, and there are rules governing what you can, cannot and must do regarding both the ignition interlock uint and the restricted license. Important rules. It’s a pretty big clue, for example, that it’s called a “restricted license,” because there are restrictions.

The most common thing that screws up someones ability to win back their driver’s license from the Michigan Secretary of State (SOS) is getting caught driving while revoked. When a person has lost his or her license for multiple DUI’s, if he or she gets anything – anything whatsoever – placed on their driving record, they will wind up being revoked all over again. While DWLS (Driving While License Suspended) and DWLR (Driving While License Revoked) charges are fairly routine in the court system and can  be handled quite easily there, they can absolutely kill a person’s chance to win a Michigan driver’s license restoration or clearance appeal.

v3-Gameover-300x199In 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.

It gets worse before it gets better: even if a person is NOT cited for any kind of infraction whatsoever, but is involved in an accident, once the accident report makes it to the Secretary of State, their license will be revoked yet again. This is called a “like additional mandatory.” Under Michigan law, a person’s driver’s license gets revoked for either 1 year (for 2 DUI’s within 7 years) or 5 years (for 3 DUI’s within 10 years). Unless and until a person has his or her license restored, if the Secretary of State receives any information that a person has been driving, he or she will automatically get an additional period of revocation, for the same length of time as the original revocation, added on to his or her driving record. That’s why it’s called a “like additional,” because what gets added on is just like the original penalty. Let’s take a look at how this works in the real world:

The essence of my job as a Michigan driver’s license restoration lawyer is to take people who have honestly quit drinking and get them back on the road. Key here is the notion that a person has actually quit drinking for good. In that context, I have written many articles about sobriety, exploring what the term really means, how someone becomes sober, and why proving sobriety is the key to winning a license appeal. No matter how much I put it out there, however, I still get loads of calls and emails from people who want their license back, but aren’t very clear about this whole sobriety thing. It seems about time to revisit this subject, and perhaps try to make clear that “quitting drinking” means you don’t consume any alcohol whatsoever.

iQuit-2If 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.

It may be easier to start out by pointing out what sobriety isn’t, rather than is. Some people mistakenly think that they can call themselves sober, but still drink. Usually, this misapprehension is based upon some idea that if a person only drinks once in a while, it’s okay. Let me make this as clear as I can: “sober,” in the context of a Michigan driver’s license restoration or clearance case, means you have given up alcohol for good, and forever. It means more than just not drinking; it means you have made a commitment to live an alcohol-free lifestyle. It goes beyond just you not drinking, and planning to never drink again, and spills over into your whole life. An “alcohol-free lifestyle” is one where you don’t hang out with drinkers, don’t go to bars or drinking functions and don’t have alcohol in your home. There’s more to it than that, but as a general description, that will do.

There are a lot of factors that make winning your license back difficult, but in this article, I want to look at 3 of the biggest reasons for that. Contrary to what some people believe, the license appeal process is not arbitrary or random, and most of it is covered by one key rule (Rule 13), which will be the first thing we examine here. Second, we’ll see how the fact that people lie (and get caught) affects everyone else, and third, we’ll look at the ever-present threat and role of relapse and why that makes the process ever more difficult. There are, of course, some differences in how evidence is interpreted by the various Michigan Secretary of State’s Administrative Hearing Section (AHS) hearing officers. It is undeniable that, in certain situations, a case that would be approved by one hearing officer might be denied by another, but that’s really how everything works in life. As a group, however, the hearing officers are pretty consistent in the way they decide driver’s license restoration and clearance cases, and that’s a good thing.

upload_5981411975029483_oog4ngkm_c_hard_work_pays_off-215x300This 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.

It’s easy to get someone to nod in agreement here, with the obvious, but this goes much deeper. The real meaning of these words isn’t just that you go into a license appeal with the answer starting at “no,” it’s more like “f—k no!” In other words, when you undertake a license appeal, you have a long way to go just to get to “maybe.” And to make the point even clearer, the rule then requires that a person prove his or her case by “clear and convincing evidence.” I’ve done rather detailed examinations of what that means in other blog articles, so we’ll skip over any analysis here beyond pointing out that “clear and convincing evidence” is the highest standard of proof in civil law, and is closest to the criminal standard of “proof beyond a reasonable doubt.” To carry my rough-language analogy a bit further, this means that your evidence had to be better than just “good,” it needs to be “f—king awesome!”

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.

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