Michigan Criminal Defense Lawyer Blog
One of the most important yet frequently overlooked things in a Michigan driver’s license restoration or clearance case is a person’s recovery story. Some people never think about getting sober in this way, and go on to win their cases without ever being aware of the “story” element that underlies it. Nevertheless, it’s always there, in every winning case, just like breathing is “there” for every living person. In this article, I want to bring this ever-present aspect of license appeals into plain view, because by doing that, we’ll see what really makes a winning case “tick.”
The first thing we need to spell out is the actual, legal objective of a license appeal. A person wins a race by being the first to cross the finish line; likewise, he or she wins a hot dog eating competition by eating the most hot dogs. In almost every endeavor, a person begins the process knowing exactly what he or she must do to succeed. One of the strange realities is that often enough, people jump into a license appeal without understanding the rules, figuring that the fact that they “need” a license and/or haven’t been in any trouble for a while is enough to win.
It’s not. To have any chance at winning a driver’s license restoration or clearance appeal, a person must prove 2 things, by what the Michigan Secretary of State defines as “clear and convincing evidence”: First, that his or her alcohol problem is “under control,” meaning that he or she can prove they haven’t had a drink for a “sufficient” period of time, and second, that his or her alcohol problem is “likely to remain under control,” meaning that he or she has the commitment and ability to remain alcohol-free for good.
As far as PBT tests go, the term “PBT” means “portable breath test” (even though the police use the same device for what, in DUI parlance, is called a “preliminary breath test). In order for these tests to have any value, they need to be administered promptly, meaning something close to within the hour after a positive interlock result. Getting a PBT test 2 or 3 hours later is really of no use.
Before we get to that, we should clarify the term “violation.” Everybody, including the Michigan Secretary of State hearing officers, uses the word “violation” to mean 2 very distinct things: first, to describe an event or incident that fails to meet the requirements of proper interlock use, and second, to describe a formal hearing scheduled when any such incident(s) results in someone’s license being revoked all over again. Things would be much clearer if we described the former as something like a “non-compliant incident,” and the latter as a “violation hearing.” Don’t hold your breath for that, however.
License restoration and clearance appeals are decided under strict rules that essentially require a person prove, by what the law defines as “clear and convincing evidence,” that he or she has not consumed any alcohol (or used any drugs) for a a “sufficient” period of time (generally, my office requires a minimum of 18 months’ clean and sober), and that he or she also has the commitment and tools to remain alcohol (and drug) free for good. In other words, a person has to prove he or she has honestly quit drinking (and/or getting high) and is a safe bet to never drink or use again.
As driver’s license restoration lawyers, we field an endless stream of calls from people who want to get back on the road legally. Because we guarantee to win every initial license restoration and clearance case we take, my team and I have to screen carefully to make sure a person can win (meaning that he or she is genuinely sober), before we undertake representing him or her. We don’t want to get stuck doing warranty work on a case that was a loser from the start. The recent legalization of recreational marijuana has given rise to the misconception that a person can somehow use it and still win a license restoration or clearance appeal. As we’ll see, this is 100% NOT true.
It helps to know why the Michigan Secretary of State does things the way it does. The written law specifies that “The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence,” that his or her alcohol problem is under control, and likely to remain under control. This means that the hearing officer does not sit impartially, as if he or she is holding a set of evenly balanced scales of justice, in order to decide “yes” or “no”. Instead, they start out with the scales tipped all the way to the “no” side and then require that you pile on enough evidence to tip them the other way.
As reassuring as that sounds, the simple fact is we really make our money winning these cases the first time around. As much as our guarantee matters, my team and I basically count on NOT having to do any case a second time. This is our business model. In order to make that happen, we have to be careful in our case screenings and make sure we don’t take every case that comes our way. In order to provide our guarantee, we have to turn away plenty of people who are more than willing to pay our fee, but are not otherwise eligible and qualified to win.
Sobriety is one thing, but support for it is another. Sobriety comes from the inside, while “support” mostly comes from the outside. Although they’re separate issues, the amount of time a person has been sober and the kind of support they do (or don’t) have interacts in a way that directly affects how a Michigan Secretary of State hearing officer will perceive his or her case. Just as with sober time, the more support a person has to stay sober, the better, especially when it comes to wining a license appeal.
If there is one constant about the driver’s license restoration and clearance process, it is always evolving and changing. The way things worked just a few years ago is very different from how they work now. For example, up until recently, having a medical marijuana card was a guaranteed shortcut to losing a license appeal. This is no longer the case, however, because the state’s thinking on this issue has evolved. Nowadays, medical marijuana card holders (albeit for more serious conditions) can and do win license appeals.
We’ll resume our discussion, here in part 2, right from that point – it is just plain dumb to try and handle your own case if it’s anything more than a simple traffic ticket (and even then, a sharp lawyer can usually work out a break that would otherwise be completely unavailable to an unrepresented person). Now, before anyone thinks, “Of course you’re going to say hire a lawyer, because that’s how you make your money!” let me make 2 very important points: