Articles Posted in Driver’s License Restoration

As Michigan criminal, driver’s license restoration and DUI lawyers, we answer a lot of questions. Interestingly, when someone begins a question by saying something like “this is probably a dumb question, but…”, it usually isn’t. However, as much my team and I are helpful, polite, and respectful, there is one really dumb question we get asked from time-to-time – “Do I need a lawyer for this?” The answer is yes, but this question deserves a thorough answer. In this 2-part article, I want to take a serious look at why a person should have a lawyer for a criminal, driver’s license restoration, or DUI case.

RHF_DTTAH_Clogo_DEC14-272x300Let me clear up the easy stuff first: you may be able to do an okay job handling your own speeding ticket, or some other kind of civil infraction. However, if you’re thinking about dealing with any kind of misdemeanor (or felony) charge on your own, you could be making a serious mistake. Notice that I’m not saying you will ruin your life or wind up in jail. Those things probably won’t happen. But what if, down the road, you run into problems because of your record, or find out some consequence(s) from your case could have been avoided with a legal maneuver you didn’t even know about because you decided to play lawyer?

The universal maxim “you don’t know what you don’t know” really applies to everyone who tries to “play” lawyer (or doctor, electrician, etc.). There’s an old saying that, “The lawyer who represents himself has a fool for a client.” It holds even more true for non-lawyers who try to represent themselves. You’ll notice that anytime a lawyer gets in trouble, the first thing he or she will do is hire a good lawyer. Even the best courtroom attorneys will hire an outsider lawyer if they find themselves facing criminal charges (or being sued).

As Michigan driver’s license restoration lawyers, we work on license appeals every day. There are a lot of “moving parts” in these cases, and even the most straightforward of them calls for a significant amount of attention. One thing we frequently hear from callers is a sense of frustration that they “have to go through all of this” to get their license back. The point of this article is to try and explain that, while the license restoration process is, in a manner of speaking, a pain in the rear, it is also non-negotiable, and that either you do what the Michigan Secretary of State requires, or you won’t get your license back.

Office-2-300x290It’s a given that it was a hassle to have gone through all the court stuff from a DUI, including probation and testing and having had to paid fines and costs and whatever else. The problem, however, is that the frustration most people feel about having, as they say, “to jump through hoops” to win their license back, while very real, also misses the fact that after racking up multiple DUI’s, the license revocation process is every bit as much about protecting the public as it is about punishing the offender.

Michigan’s drunk driving law clearly states that if a person racks up 2 DUI’s within 7 years, or 3 within 10 years, his or her license will be revoked. Most people, however, never read the law, and are surprised to learn that having their license “revoked” means having it taken away for good, and not just suspended for a certain period of time. This is often why they’ll say things like, “I thought I did everything I had to do – I went to the classes, paid the fines and went through probation” when they learn they have to file an appeal to even be considered for the return of driving privileges.

In part 1 of this article, we examined the role the substance use evaluation in a Michigan driver’s license restoration or clearance appeal. Every substance use evaluation should clearly list a person’s drug and alcohol history, when he or she last used drugs or drank alcohol, and then provide a clinically sound prognosis of the likelihood that the person will remain clean and sober. We ended part 1 by noting that the hearing officers have, in practice, come to expect certain information from just looking at the SUE form itself.

XiJqMcH2_400x400-300x223This really is something of a problem in a license appeal case. Every substance abuse counselor can look at the official substance use evaluation (SUE) form and figure he or she could complete it without any difficulty. In one sense, they’d be right, but not in the sense of winning a license appeal, and that’s what really matters here. Let me explain what I mean:

Assume that Counselor A had to transfer a client to Counselor B, but could not send any kind of case file or notes, and could only provide information using the state’s Substance Use Evaluation form. As long as both A and B were good counselors, that would actually work pretty well. Any competent counselor could complete the Secretary of State’s Substance Use Evaluation form and provide a reasonably sound abstract of the subject’s substance use and treatment history, diagnosis, and prognosis. The problem is, that’s not good enough to win a license appeal.

In this article, I want to explain the larger and primary purpose of the substance use evaluation (SUE) required in every Michigan driver’s license restoration and clearance case. I have divided this piece into 2 relatively small installments.

download-3The first thing we should do is to clarify the name, “substance use evaluation,” because many, if not most people, call it a “substance abuse evaluation.” I’m as guilty of that as anyone, both terms are used to mean the same thing. To keep things simple, we’ll often refer to the evaluation by using the abbreviation “SUE” in this discussion.

The Michigan Secretary of State has published an official substance use evaluation form for use in all license appeal cases. It’s best to use that form in a license appeal, although some evaluators use their own homemade form similar to the state’s. Our evaluator does it best, using an editable version of the official form that lists all the information relevant to a given case.

In part 1 of this article, we began an examination of the updated wording regarding proper ignition interlock use that is part of every Michigan Secretary of State order granting a driver’s license restoration appeal. The large number of interlock violations makes clear that the state’s directions are not read all the way through, and I suggested moving them to the very front of the order, with clear and bold instructions to read them first. We left off by noting that merely saying it is “advisable” to get a PBT or EtG test after a power failure (tamper/circumvent) or a failed or missed breath test is at odds with the fact that, at a hearing, producing the result of such a test is, for all purposes, expected.

D-300x260My team and I deal with the problems caused by the state’s use of this indecisive language (‘advisable”) all the time, in real hearings. One of the first things most hearing officers will ask if a person has a failed or missed rolling retest is whether or not he or she got a PBT or EtG test. If a person says “no,” then they’ll be asked, “why not?” Most often, the person will try and explain that they weren’t clear on the need to do that right away, or just had forgotten. Then they’re asked the most dreaded question of all: “didn’t you read your entire order?”

The hearing officers are lawyers and work as administrative law examiners (another way of saying, administrative law judges). Their main function is to evaluate and rule on the evidence in license appeal and violation cases. The legalities and nuances involved in these cases makes perfect sense to lawyers, like me, but when a regular person, who has been driving on the interlock for several months without any issues, suddenly encounters a problem, he or she doesn’t start thinking about the “burden of proof” required to win a hearing, or, what kind of evidence should I be getting together?

A number of years ago, I wrote an article about ignition interlock violations that included the directions then provided by the Michigan Secretary of State in all orders granting a restricted license after a successful driver’s license restoration appeal. It’s time to update that, because the language of those directions has changed since then. Although this article will reprint the updated language, it’s hard to overlook the inherent irony at work here, because, by the time most people start looking for ignition interlock information, it’s because they’ve already had some kind of problem with the unit.

page_jqd3w7-285x300The instructions in each winning order lists the things that should be done if a person has a power loss (listed as “tamper/circumvent”), misses a test, or provides a positive breath sample. Even if it’s too late for those recommended PBT or EtG tests (see below), there may be enough time left to take other remedial action in order to challenge a violation. Whatever else, any problems are going to have to be satisfactorily explained to a hearing officer, whether at a violation hearing, or when a person files for full, unrestricted driving privileges. Much of this could be made better if the state fixed the language and placement of the interlock use directions.

As a result of handling so many interlock violations, one thing that’s crystal clear is that many people simply do not read, or at least thoroughly read, and then remember, the instructions for proper ignition interlock use in the order they receive informing them that they have won a license appeal. It seems painfully obvious that the Michigan Secretary of State needs to move the instructions for proper interlock use from the back of the order form that accompanies a winning license restoration appeal, where it’s put now.

Winning a Michigan driver’s license restoration or clearance case requires proving 2 main things by what is defined as “clear and convincing evidence.” First, you must show that your alcohol (and/or substance abuse) problem is “under control,” meaning you have been alcohol and/or drug-free for a sufficient period of time, and second, that it (after 2 alcohol and/or drug-related driving convictions, you are presumed to have some kind of substance abuse problem) is “likely to remain under control,” meaning that you are a safe bet to never drink or use drugs again.

66b1d-scales-3-300x278In this article, I want to do a brief overview of what “clear and convincing” means in the real world, because it’s not only the very key to success, but is also dreadfully overlooked by just about everyone except the hearing officers who decide this cases, and anyone who finds him or herself reading an order denying their appeal. “Clear and convincing evidence” is the legal standard of proof required to win a license appeal, and it is specifically required by the rules that govern all such cases. You either meet this standard, or you lose.

As a starting point, we can begin by saying that “clear and convincing” is close to – but not quite as strong as – proof “beyond a reasonable doubt,” the legal burden of proof for finding someone guilty of a crime. A colleague of mine once used a baseball analogy and said that if “beyond a reasonable doubt” is like a home run, then “clear and convincing” equals a triple. If you understand baseball, then that’s a good comparison. If not, then the following analyses will help.

As Michigan driver’s license restoration lawyers, we handle hundreds of license appeal cases every year. Many of those are for people who now live out of state, but have a Michigan hold on their driving record that prevents them from obtaining (or, in some cases, renewing) a license in their new state. This release is called a “clearance,” and getting it requires submitting the same documentation and proof as a regular driver’s restoration appeal.

2112-300x285The most important part of a license appeal, whether you’re seeking a clearance or the restoration of your Michigan driving privileges, is proving that you have quit drinking for good. Beyond proving your sobriety one key difference is that a restoration appeal requires a person to show up for an actual appeal hearing, while a clearance can be requested by just filing the documents alone and waiving the hearing. This is called an “administrative review,” and is essentially an appeal by mail. It may sound like a good idea, but in practice, it’s not.

In terms of the “chances,” with an administrative appeal, it’s worth noting that from year to year, 3 out of every 4 of them are denied. In this article, I want to explain why I never do this shortcut method, and why I firmly believe that a person should come back for a live, in-person hearing. Before we get into the nitty-gritty of that, let me answer anyone who is (understandably) thinking, “Of course you want people to come back so they can hire you; this is how you make your money.”

The worst part about any article examining ignition interlock violations is that by the time you start looking for information about them, it’s almost always because you’ve already had a problem. In other words, the idea of telling someone how to avoid a problem, or what to do right after a failed or missed breath test is kind of a moot point since the usual reason they’re searching online is that they’ve already received notice of an interlock violation. By that time, it’s way too late for any kind of breath or urine test.

interlock-300x258Although a bit off-topic for this piece, it’s worth pointing out that there are things that can be done, at least sometimes, to prove you weren’t drinking, even up to 90 days after providing a positive breath sample. There is always some analysis required to determine whether any such test is worth trying, but the larger point is that if you’re violated for or have false positive test results, and even if it’s up to 12 weeks later, you’re not necessarily dead in the water in terms of being able to get some exculpatory evidence.

As complex as all of this can be, there is a fairly simple, but ugly reality to it: most violations are caused by NOT following the Michigan Secretary of State’s instructions regarding ignition interlock use, and/or what to do if you fail or miss a test. The state is rather clear about how not to fail or miss a test, and if that does happen, it directs the person to promptly go to a police station and get a PBT (breath) test, or, if that’s not possible, get an EtG urine test within 24 hours, and preferably by the end of the day the problem occurred.

Once a person’s drinking has gotten to the point of being a problem, he or she faces a simple choice; either quit, or keep going and run into even more problems. Unfortunately, many people who do stop, at least for a while, struggle with the misapprehension that they can somehow, someday, manage to drink again. This misplaced belief is a defining point of addiction, and it stands in direct contradiction to the reality that once you have a problem, you can simply never pick up again. This article will focus on that conundrum, and is really relevant to anyone looking for information about driver’s license restoration, DUI, or other kinds of criminal charges.

AAA-277x300The inspiration for this article came from a client of mine for whom I won a driver’s license restoration case, and who just hired me for a new, 3rd offense DUI charge. Although I won’t use his name, I’m quite sure he is the kind of person who would want me to use the details of his story as a warning  to help anyone who has supposedly quit drinking to NOT pick up again. My client had been alcohol-free for 10 years after his last DUI, had won back his restricted, and then full driver’s license, and, in the blink of an eye, picked up a single drink that quickly led him down the slippery slope until he got arrested for driving drunk – again.

As DUI and driver’s license restoration lawyers, my team and I spend almost every minute of every workday dealing with the fallout from people drinking. Nobody comes to our office looking to patent some multi-million dollar invention because they got drunk one night and then came up with some great idea. Instead, people contact us because they’ve gotten into trouble, and are facing something like an OWI charge or, having lost their driver’s license as the result of multiple DUI’s, now want to get it back.