Articles Posted in Driver’s License Restoration

I was recently asked how many Michigan driver’s license restoration cases I handle every year, because the person making the inquiry was being a smart consumer and doing some “comparison shopping.”  Off the top of my head, I indicated that I wasn’t exactly sure, so I took out my date book at looked back over the preceding 2 months.  As it turns out, in March of this year (2017), I handled 25 driver’s license restoration and clearance cases, and in April, I handled 22 license appeal cases; that’s about average for me.  While that much experience is certainly a lot, and should give any potential client a sense of comfort about hiring me, I think it’s even more important, however, that I provide a first-time win guarantee in every license appeal case I take.  Seriously, if all that experience is worth anything, then I should have no reservations about putting my money where my mouth is, and I don’t.  For all the talking that could be done, the importance of my guarantee says far more than anything else ever could.  In this article, I want to take a candid look at what that experience really means, and why, more than anything else, getting good at license appeals means learning from one’s mistakes.

Let’s start with this blog.  Over the years, it has really grown, and this will be the 377th driver’s license restoration article I’ve published, bringing the total number of articles I’ve put up so far to almost 800.  Writing these articles has made me a much better lawyer, because I’ve not only had to research all kinds of things, including the most minute details of more legal issues than you could imagine, but also because I’ve also had to take the time to make sense of it all.  You can’t explain something very well unless you understand it first.  Heck, even if I wasn’t a lawyer, I’d be something of an expert at license restorations just through the effort of writing nearly 400 articles on the subject.  And in the spirit of candor, it hasn’t been lost on me that, since this blog began, a whole crop of new lawyers has swarmed in to claim some piece of the license restoration pie.  Now, I see website names with some variation of “license restoration” all over the place.  I’ve also seen some of my blog subjects “borrowed” on various websites (it’s said that imitation is the sincerest form of flattery), and I am well aware that plenty of lawyers read and use my articles to learn various aspects of the license appeal process.  I’ve had numerous calls and emails from lawyers with all kinds questions, and honestly, I’m glad to help.  Yet for as much as I know, the cold, hard truth is that I learned much of it the hard way, by having gotten it wrong at some point before.

I would, of course, caution anyone, but especially any lawyer, that although I have certainly put out more relevant information about license appeals than you can find any and everywhere else combined, my primary purpose it to educate and enlighten people about the license restoration process, not train anyone how to do it.  You can’t learn to ride a bike or perform surgery by reading; these are things you have to actually go out and do, and no matter how smart you may be, you learn the most from the things you get wrong.  The light bulb wasn’t invented on the first try.  Instead, it came about after countless failed attempts.  It was gotten right because it was gotten wrong so many times first.  Ditto for the airplane.  Perhaps what I bring to the table more than anyone else is that in my career, I’ve learned all the things NOT to do in, or not to leave out of, a license appeal case.  The sheer number of cases I’ve handled means that some lawyer knocking out 50 license cases a year is going to need 26 years to encounter all the situations I have in just the last 5.  In other words, I’ll see and handle more cases in less than a decade than he or she would in more than half a century, and I’ve been at it for over 26 years already…

In part 1 of this article, we began examining an appeal for a “full” Michigan license, and how a person gets off the interlock after having initially won his or her driver’s license restoration case.  We noted that simply not losing your restricted license in the intervening year(s) isn’t anywhere near good enough to win back your full license, and that there’s a lot more to this than just coming  back and asking for it.  Most people (I estimated more than 80%) will experience a “glitch” or two on the interlock device while using it, and those issues will have to be addressed at the hearing for a full license, even if none of them results in a formal ignition interlock violation.  We noted that, just as in a first-time license appeal, every hearing officer is different, and that some have more patience than others, the flip side being that some are more prone to “violation fatigue” and begin to shut down when a person shows up with an final ignition interlock report that has too many “glitches” for his or her liking.  We’ll pick up in this second part right there, at the point where a person shows up at his or her full hearing with an final report that has more “violations” than the assigned hearing officer is willing to excuse.

This is somewhat unfortunate, because some people are just plain luckier than others.  I’ve seen cases where people have had a real tough time with the interlock unit, but were also firmly committed to their sobriety.  Some people wind up getting a faulty unit and have nothing but trouble, while others never have any kind of difficulty with the machine.  There is, no matter what else, an element of luck to all of this.  In fact, it is rare for a person to make it a whole year without at least a glitch or two along the way.  One of the big problems is that not every glitch results in a formal violation, so when an incident occurs, and as long as the car starts again, or something like that, a person may have figured everything is fine – until they get to their full license hearing.

Let’s look at a common, real world example of this:  Lots of people will have a positive breath test result at some point, either at start-up or while driving (rolling retest).  The notice of interlock use in the back of a winning order and interlock companies’ instructions advise that, when this happens, a person rinse out his or her mouth and promptly try again.  When someone who is and has been stone-cold sober for a number of years blows into the machine and sees a positive result, what crosses his or her mind is usually something like, “WTF?”  The person knows he or she hasn’t been drinking, so when they rinse and/or try again a few minutes later and the test comes back negative, they figure all is well, and their innocence has been proven.  They forget the instruction in the notice of ignition interlock use to get a PBT or EtG test, and, because they were able to provide a clean sample, assume all is well.

In this 2-part article, I want to examine removing the ignition interlock unit and getting a full license after a successful driver’s license reinstatement appeal.  If you’re a Michigan resident whose license has been revoked for multiple DUI’s and you win your license back, you must start off with a restricted license and drive with an ignition interlock for at least 1 year.  You can drive forever on that restricted license with the interlock unit if you want, but you can’t seek a full, unrestricted license without an interlock until you’ve used it for at least the first year.  The process for moving from a restricted to a full license (the Michigan Secretary of State’s technical term for this is “change or removal of restriction”) is exactly the same as it is for an initial license restoration appeal, and requires a new substance use evaluation (everybody calls it a substance “abuse” evaluation, so we’ll just go with that), new letters of support, and, additionally, a final ignition interlock report from the interlock company for the past year. For my part, I charge my returning clients 2/3 of the initial fee in these cases, primarily because I already know the client, his or her history, and everything else relevant to the case.

Perhaps the biggest misconception about going from a restricted to a full license is that all you have to do is NOT lose your license in the meantime and it’s practically a done deal.  It is certainly easy, but also wrong, to think of the restricted period with the interlock as a kind of “probation” wherein if you don’t get in trouble, then all conditions just go away.  Of course, if you violate your restricted license (ignition interlock violations are a whole world unto themselves) and get it taken away, then it’s game over.  Anyone who loses his or her restricted license has to start all over again from square one, and must complete a successful year on the interlock  device and with the applicable restrictions before he or she can even think about appealing for a full license.  But even someone who sails through the first year on the interlock and the restricted license without a hitch will still have to come back and prove the relevant legal issues all over again on top of demonstrating their compliance with the interlock requirement.  This may seem a bit confusing, and may not make a lot of sense at first, but it is what it is, so if you want to eventually drive without the interlock and without restriction, you’re going to have to follow the state’s rules.

When someone comes back to the Michigan Secretary of State’s Administrative Hearing Section (AHS) to have his or her restricted license made “full,” the hearing officer is going to look and see whether it was proper to grant that license in the first place.  In other words, and this is one of the main points of this article, it is not automatic that if you won the first time, you’ll win again.  For example, assume Dan the Driver has appealed for a full license, and hearing officer # 2 is deciding his new case.  In reviewing the documents, hearing officer # 2 concludes that he or she wouldn’t have even given Dan a restricted license in the first place, or would have imposed some condition(s) on Dan not imposed by hearing officer #1.  Does this mean that Dan will lose his license altogether?  Probably not, but it does mean – and this does happen in the real world – that Dan may not win his full license this time around, and instead be continued on a restricted with the interlock for another year, and may even some additional conditions imposed on his restricted license.  The goal, of course, is to avoid all of this…

In my capacity as a Michigan driver’s license restoration lawyer, I guarantee to win every case I take.  To make that happen, I will only take a case for someone who has honestly quit drinking.  It has never been my goal to compete with any other lawyer on price, or really at any level, beyond striving to be the very best in my field.  I don’t just “do” license clearance and restoration appeals – they are the very focus of my practice.  This goes hand in hand with my deep, 25-plus year interest in the addiction and alcohol issues, so much so that a number of years ago, I went back to the University classroom and completed a post-graduate program of addiction studies so that I might formally sharpen my clinical knowledge and expertise in things like how people recover from problems with alcohol and drugs.  Whatever else, I understand addiction and recovery from every angle – from the inside looking out, the outside looking in, and from the clinical side and the legal side, as well.  In the course of any given month, I appear and conduct (and win) more license appeal hearings before the Michigan Secretary of State’s Administrative Hearing Section (AHS) than most lawyers will ever handle in the course of their entire career.

I don’t check other lawyer’s prices, but I have been told that my fees are higher than some others.  While I try to keep my fees reasonable, I believe that I am the poster-boy for the idea that you get what you pay for.  And to be clear, there are some lawyers who charge more than I do, although I can honestly say that many times, I’ve been called in to clean up after some of those guys have lost a case, thus proving the idea that while you never get what you don’t pay for, just paying a lot doesn’t necessarily mean you’re getting the best; instead, it just means you paid too much.  When it comes to winning back your driver’s license, you must understand that there is an additional cost to losing beyond the money.  If you lose your appeal, you cannot file another for a full year.  Beyond that, you’ll have to fix all the mistakes that caused you to lose the first time.  At least with me, a client has the certainty of knowing that they’ll only pay me once and they will get back on the road.

The quality of service from my office is on a whole different level than what I suspect anyone else provides.  In general, I think a lot of the hype around “better service” is a bunch of BS.  When I order something online, I’m concerned about service only to the extent that the right product (meaning one that matches the description I relied upon in placing it) is sent to me quickly and correctly.  I don’t care if my order is processed by a robot, some guy in a tank top and shorts, or some guy in a tuxedo and white gloves.  License restoration cases, however, are different.   My first meeting with a new client takes about 3 hours (often, a bit more) in my office.  And let me be perfectly candid: I’m a really nice guy and consider my practice an opportunity to help people, but I’m still in business to make money, so I don’t keep these appointments long just so we can talk baseball, or anything like that.  In that same way, as far as my guarantee goes, I don’t make my money having to re-do a case a second time; I make my money winning them the first time, meaning I’m as invested in a successful outcome as my client.  I am thorough in a way that takes time.  There are no shortcuts to lasting success.

In part 1 of this article, we began looking at ignition interlock violation hearings.  This is a 2-part article, and is 1 of 3 loosely related Michigan driver’s license restoration subjects: The first article examined the standard of proof required to win a license appeal, while the second focused on the Michigan Secretary of State hearing officers who decide these cases (by applying the standard of proof), and this third article, which looks at ignition interlock violations and analyzes how the different standard of proof used here and the hearing officers are essential components of these cases.  In part 1, we examined the standard of proof required to win a violation hearing, and then talked about submitting evidence to overcome the standing presumption that, when violated, you either missed or failed a retest, had 3 startup failures within a monitoring period, or somehow did something to tamper with or otherwise circumvent the interlock unit. We’ll pick up here, in this 2nd part, I will survey how all of this plays out in the real world in each of those situations.

Let’s walk through those 3 common violations in turn.  As I pointed out before, if you miss or fail a rolling retest, the least likely explanation is that you actually did provide a sample and passed with triple zeros (.000), but that the machine simply reported otherwise.  Even if you missed the test because you were rescuing a baby from that proverbial burning building, chances are that the interlock machine is right when it indicates that you missed the required test.  The same holds true for a test that is positive for alcohol.  There are a million explanations about how or why that test result could be errant because you were not drinking, but the chance that you actually provided a sample that incorrectly detected some kind of alcohol is almost nil.  It could be that you spilled hand sanitizer on the handset, or any of those million other reasons, but the point is that it is almost certain that the machine did not somehow detect alcohol that simply wasn’t there.  Something made it register alcohol, as innocent as the cause may be.

The burden of proof you carry is to come forward and explain to the the how and why of it.  If you missed a test, then you are expected to show that you went to the police station and obtained a PBT or otherwise took an EtG test, or thereafter, within a few minutes somehow verifiably provided a negative sample.  If you don’t have those things, then you have to provide an explanation that counts as evidence to counterbalance the presumption that you missed the test or otherwise failed it because you had consumed alcohol.  Think of the scales as going from -10 to +10, with 0 being even.  In a missed retest situation, the scale that says you missed (presumably because you were drinking) sits at about a +4, meaning that the other scale, the one in your favor, sits at about a -4.  You need to add +5 to it to get it back to midpoint and then tipped in your favor.

This is the third article in a loosely-related series about the Michigan driver’s license restoration process.  It is a bit longer than the previous 2 installments, and will therefore be divided into 2 parts.  In the first article, we began by examining the standard of proof required to win a restoration or clearance appeal, and then, in the second article, followed up by surveying the role the hearing officer plays in the license reinstatement process, and how he or she must apply the standard of proof to the evidence presented to decide whether someone wins or not.  Here, we’ll conclude by looking at ignition interlock violations brought by the Michigan Secretary of State’s Administrative Hearing Section (AHS) after someone has won back his or her license.  The sheer number of these violations has grown so much in recent years that I probably have at least 1 or 2 on my schedule every week.  The reason I have included this topic in this trilogy is that being familiar with both the standard of proof that’s applied in deciding violation cases (which is different from the standard of proof used to decide whether to grant a license or not in the first place), and the hearing officer who decides it are critically important components to success.  As with each of the previous articles, this one stands on it’s own, but really comes to life when read in combination with the others.

There is no diplomatic way to put this other than to just candidly say that ignition interlock violations suck royally.  By the time you officially learn you have one, it comes in a notice from the Secretary of State informing you that, in a few days, your license will be revoked all over again, and the only thing you can do about it is to file an request within 14 days for a hearing to challenge the re-revocation (technically called a “reinstatement of original action”) or your license will stay revoked.  There is no way to head off a violation or the upcoming revocation once the notice arrives in the mail, meaning that you will be unable to drive for a while no matter what you do.  Here, it is necessary to understand the different burden of proof used in violation cases and how the hearing officer applies it.  While it goes without saying that anyone being violated is not happy, it does no good to be angry with the hearing officer, because it is not him or her who “violates” anyone.  Instead, the the hearing officers are assigned, at random, to decide violation cases within the framework of the AHS rules by applying the relevant standard of evidence.

To the extent possible, I always try to avoid using legalese (which I often describe as “legal mumbo-jumbo”), so my reference to the “relevant standard of evidence” in the last paragraph is rather deliberate.  In the first article, we made clear that to win a license appeal, you must prove your case by what is called “clear and convincing evidence.”  If there is any good news within the context of ignition interlock violation cases, it’s that they are decided using a lower standard of proof, known as “preponderance of the evidence.”  At its simplest, preponderance of the evidence simply means tipping the scales beyond even, in one direction or another.  “Clear and convincing evidence” is a much higher standard than “preponderance of the evidence,” but that alone doesn’t make winning a violation hearing easy.  As we’ll see, when you walk into a violation hearing, it’s not like the imaginary scales of justice are sitting evenly lined up, and all you need to do is add just a little evidence to tip them in your favor.  Instead, because of the allegation that you either failed or missed a rolling retest, had 3 positive-for-alcohol startup failures within a download period, or otherwise did something to tamper or circumvent the interlock unit, the scales are already tipped way against you (to a greater or lesser degree, depending on the allegations) and your job is to tip them back to the even point, and then just a bit more, in your favor.  Let’s see how all this works…