Articles Posted in Driver’s License Restoration

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In my role as a Michigan driver’s license restoration lawyer, I have tried very hard to explain the legal process within the hundreds of articles on this blog. I think I’ve done that rather thoroughly within the 430-plus license restoration pieces I’ve written and published. In this article, I want to try to do a very brief summary of how things are done in my office. My previous attempts to outline the driver’s license restoration or clearance process have always traded brevity for completeness, and have almost always wound up being published as multi-part installments. Here, we’re going to exchange details for economy of words and get through everything in one reasonably short write-up.

Lesson-Summary-300x300First things first: the ENTIRE driver’s license restoration and clearance process is based upon the idea that you are sober, meaning you have quit drinking, and also have the ability and commitment to remain alcohol-free for life. Getting your license back is intended to be difficult as the rules governing Michigan Secretary of State (SOS) license appeals are written in order to deny a license to anyone who cannot prove they are a low to minimal risk to ever drink again. Practically speaking, you must have been alcohol-free for the better part of 18 months before filing, and need to make clear that you harbor no idea that you can ever take another sip of alcohol, for any reason, at any time for the rest of your life.

Beyond being sober, you must be legally eligible to file a license restoration or clearance appeal, and that time frame is set by law. It does not matter how much you need a license; you must wait until your minimum period of revocation is over, including any additional time that has been added-on because you got caught driving. And no matter what your circumstances, there is no legal way to shorten your period of revocation by going to court.

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As the number of sobriety court programs has grown in Michigan, and as more people graduate from them, I am seeing a proportional increase in the number of sobriety court graduates appealing for a full license from the Michigan Secretary of State (SOS). Sobriety court Judges are legally authorized to override the SOS revocation that comes from either a 2nd or 3rd offense DUI and issue a restricted license. In this article, we’ll examine how the only way to go from a restricted license (with an interlock) issued by sobriety court to full driving privileges (without the interlock) is to file a formal driver’s license restoration appeal, and what’s involved in that.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/09/full-2.thin_-300x206.jpgThe lifting of restrictions and the interlock requirement by the SOS is technically called a “change and removal of restrictions.” The “step up“ from a restricted to a full license is NOT automatic. In the real world, a license appeal for someone with a sobriety court issued restricted license is kind of like a hybrid combination of a first time license appeal for someone who didn’t do sobriety court and who had to get his or her restricted license through the regular restoration process, and a “full” license appeal for those people when they later become eligible.

Every person who wins a restricted license through the SOS does so by documenting and explaining both their addiction and their recovery. This requires showing 2 things within those documents and then later, through testimony at a hearing: first, that their alcohol and/or substance abuse problems are under control (meaning that they have remained abstinent for at least the last 12 months, and really more like 18 months, minimum, in practice) and second, that their alcohol and/or substance abuse problems are likely to remain under control (meaning that the person is a safe bet to never drink or use drugs again).

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One of the most important things I do in every driver’s license restoration and clearance case is to thoroughly “prep” my clients for their hearings. The whole preparation process is really a 2-way street, because prior to speaking with my client, I have to carefully read and review the entire file myself, to the point of actually memorizing it. For the client, this is about a lot more than just going over the questions likely to be asked of the client at the live hearing. And to be clear, I NEVER settle for a video hearing, and always schedule my cases to be heard live, even though there is video location less than 5 minutes from my office, while the drive to the actual office of hearings and appeals takes about an hour (much longer than that now, with I-696 partially closed). We’ll examine the shortcomings of video hearings in an upcoming article; in this piece, I want to concentrate on the importance of getting ready for a live hearing.

maxresdefault-300x288As I sit here writing this, I have 2 hearings the next day, and I’ve already prepped 1 of the clients, who is coming from Pennsylvania. Getting ready for a hearing really does require that I memorize the file, and not just do some quickie “review” of it. Before I ever read anything, however, I confirm which hearing officer will be deciding the case. Every hearing officer is unique, and they each have their own areas of particular interest, and that not only directs my focus, but what I emphasize to my client. To be sure, all the hearing officers share the same core group of concerns and ask some of the same questions, but there are also areas that, while important to some, are of little or no interest to others, and vice-versa. Knowing this is key to making sure I concentrate on the more important aspects of any particular file, and, in turn, preparing the client for the questions that will be asked regarding that. For example, if someone attends AA (although most of my clients do NOT), one hearing officer may want him or her to repeat a few steps of the program, while another will skip any specific questions like that and ask, instead, how often the person goes, and if he or she intends to keep going.

This isn’t nearly as complicated as it sounds, and the hearing itself should not be feared. If there’s one misconception I’d like to clear up in this piece, it’s the idea that the hearing is some dramatic, “it all comes down to this!” moment. It’s not. In fact, license appeal cases are mostly won or lost through the documents we file, and that takes place long before you ever walk through the door for your hearing. If the substance use evaluation isn’t legally adequate and appropriately favorable, there’s nothing you can say or do at a hearing to fix that, and your appeal will be denied. Ditto if the letters of support aren’t good enough. The hearing is really nothing more than an opportunity to go in and confirm that the person described in those letters and depicted in that evaluation is, in fact, the person sitting in the hearing room. Doing everything right is the recipe for winning, and that’s exactly what will happen when I take a case, guaranteed.

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In order to win a Michigan driver’s license restoration or clearance appeal, you must prove that you have quit drinking for good. This requires more than just saying so. In this very short article, I want to make clear that the first and main requirement to win your license back is that you no longer drink alcohol. Although I frequently publish articles about recovery and sobriety, my staff has suggested that I put up something brief and more straightforward, because we still get lots of calls from people who seem to misunderstand the concept of sobriety and mistakenly think that being sober means something other than that you don’t drink anymore. Thus, we’ll begin with this very simple declaration: you cannot win your license back if you still drink, however “occasionally,” or even if you think you can still drink at any point in the future.

Im-done-quotes5-1-300x237We often hear from folks who think that they somehow “deserve” to be able to drink because they haven’t had a license or otherwise been in trouble for a long time. This kind of thinking misses the target by about a million miles, because the whole point of the license appeal process is to ensure that the only people who get back on the road are people who have quit drinking for good. The Michigan Secretary of State, through it’s Administrative Hearing Section (AHS), the body that decides driver’s license appeals, has a duty to protect the public by making sure that some risky drinker doesn’t get his or her license back, drive drunk again, and then kill someone.

You have to understand that, from the state’s point of view, once a person has his or her license revoked for racking up multiple DUI’s, he or she is considered too risky to be allowed to drive again unless and until he or she quits drinking for good. The state will never – and this is key – NEVER give a license back to someone with multiple DUI convictions who still drinks alcohol, or even thinks he or she can. The bottom line is that such a person has proven that, at least some of the times he or she drinks, bad and dangerous decisions can follow. That, in and of itself, is considered too much of a risk. The interests of public safety are much greater than the transportation inconvenience of someone who, by law, has been categorized as a “habitual alcohol offender.” On the other hand, the state also knows that people who don’t drink are exactly zero risk to drink and drive.

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As a Michigan DUI and driver’s license restoration lawyer, I deal with problems caused by drinking all day, every day. To be sure, most people arrested for a 1st offense DUI don’t have a drinking problem, but it is also a well established fact that, as a group, DUI drivers do have a higher incidence of such problems than the population at large. By the time someone gets to his or her 2nd DUI, however, the likelihood that he or she is struggling with a troubled relationship to alcohol goes from merely possible to very probable, and when it’s a 3rd (or subsequent) DUI, the question shifts from having a problem to how serious it has become. In driver’s license restoration cases, where the existence of a drinking problem is presumed, the focus turns to what has been done to fix it, and whether the person can prove that he or she is a safe bet to never drink again. In this article, I want to look at the concept of recovery from a problematic relationship to alcohol.

spirituality-300x274It is a given that nobody sets out to develop a drinking problem. Sure, there are some people who, by their partying behavior and wild attitude, seemed destined to run headfirst into one, but had you ever confronted them during the time they were acting all crazy and drinking too much, they would have dismissed your concerns. The point is that when a problem begins to develop within a person, he or she is almost always the most blind to it, and usually the last to see it – if they ever do. The sad truth is that most people either don’t ever see themselves as having an alcohol problem or, if they do, are unable to get over it. Thus, it is a starting point for any discussion of recovery that most alcoholics (that term is used loosely here, and really means anyone whose drinking has begun to cause problems) DO NOT recover. In fact, from what we have come to know about the development, diagnosis and treatment of alcohol use disorders, the simple fact remains that recovery is far more the exception than it is the rule.

Although the concept of “recovery” is deep enough in its own right to fill a library full of books, one general and universally true observation is that people don’t get sober because drinking is working out well for them. When a person really decides to quit drinking for him or herself (rather than for someone else), it’s often because he or she has hit some kind of “bottom.” The idea of hitting bottom seems simple enough, but in the real world, even among those who do recover, some people hit many false bottoms before they hit the real one. When someone hits that real bottom, however, there is no mistaking it, because it becomes the pivot point for huge changes that will dramatically affect the rest of their lives. Whether sobriety comes as a result of hitting bottom, or more gradually, by a kind of tipping of the scales in favor of not drinking anymore, once you are really in recovery, then you just “know” this, and feel it in the very fiber of your soul.

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There really is no way to overstate the importance of the role of the substance use evaluation in a Michigan driver’s license restoration or clearance case. In a very real sense, the substance use evaluation (abbreviated as SUE, and often mistakenly called a substance “abuse” evaluation) is really the foundation of a driver’s license restoration appeal. Over the years, many counseling operations have popped in and out of existence with the promise of providing really favorable evaluations. That may sound appealing at first, but the hearing officers from the Michigan Secretary of State’s Administrative Hearing Sections (AHS) have been onto that gimmick forever, and instead of being fooled by it, look instead for indicators of real integrity in the evaluation. Thus, we begin with the idea that the evaluation must be an accurate, honest and sincere clinical assessment.

thisisimportant-279x300This is important, because it means that to wind up with a good evaluation that bears the required hallmarks of integrity, you have to be genuinely sober in the first place. If you still drink, or think you can still drink, forget trying to win a license appeal, and forget trying to fool a good evaluator. The whole reinstatement process is designed to make sure that only those people who do not drink, and who have the commitment and ability to remain alcohol-free for good, are allowed back on the road. For everything we can and will say about it, the main purpose of the evaluation is to provide the hearing officer with a clinical analysis of how likely a person is to NOT drink again. A competent evaluator isn’t going to mistake someone who still drinks, but talks a line of BS about not drinking anymore, for someone who is really sober and has made the dramatic life changes that go along with that.

The evaluation itself is actually a form provided by the state. Some evaluators use their own format instead, but any homemade design must still provide all the information required by the state’s form. Personally, I don’t care for evaluations done on anything other than on the state’s form. One of the problems with that, beyond making the information harder to read and therefore more difficult to understand, is that some evaluators go off and start adding information they feel is helpful, taking what would have been a 2 or 3 page state form and stretching it out over even more pages. The SUE is really like a tax form, and provides spaces for all the necessary information without the need to paste in the dreaded “see attached” and add more pages.

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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.

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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.

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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.

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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.

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