Articles Posted in Driver’s License Restoration

In my capacity as a Michigan driver’s license restoration lawyer, I attend a lot of license appeal hearings. In the span of a single year, I will take care of more driver’s license restoration cases (somewhere between 200 to 300) than 99% of other lawyers will ever handle in their entire careers. In fact, going to license appeal hearings is the single biggest source of the miles I put on my vehicle, but there is no better way to win any kind of license or interlock case than by holding a live, in-person hearing.

poor-quality-technical-video-production-300x254On any given day, I may have to make the trip to the Michigan Secretary of State’s Office of Hearings and Appeals, in Livonia, where these matters are heard, from my office, nearly an hour away, or from some court that’s even farther still. Despite the availability of a much more convenient “video hearing” option in many of my cases (one of the video locations is less than 5 minutes from my office), I would NEVER consider it in a license restoration case. In this article, I will explain why you should always appear for a live, in-person hearing.

The value of “showing up” also applies to anyone who lives out-of-state and needs a clearance of a Michigan hold on his or her driving record. The state allows what is called an “administrative review,” which is an appeal-by-mail that permits a person who no longer lives in Michigan and is trying to get a license in another state to submit the required appeal documents and have the case decided without a hearing. This is an overwhelmingly losing proposition because 3 out of every 4 such cases lose.

As a Michigan driver’s license restoration lawyer, I field multiple inquires every day from people interested in getting back on the road. The whole idea of being able to win back one’s driver’s license involves several considerations beyond just being legally able (eligible) to plow ahead and file an appeal. In this article, I want to briefly examine them. We’ll start with situations where a person cannot proceed, move next to those where the ability to successfully do so becomes a definite “maybe,” and then move on to what a person needs to move forward and actually win.

its_not_enough_button-300x286I need to explain myself a little bit, first. I earn my living doing license appeals and handling DUI cases. Whenever I take a driver’s license restoration appeal, I guarantee to win it. I’m in business to make money, but my guarantee also means that I put my money where my mouth is. While it’s obviously NOT in my financial interest to turn away any potential client, having a guarantee also means it’s not worth my while to undertake a case unless I know I can succeed. When someone hires me, they’ll only pay me once to get back on the road. This means I know, because I have to know, everything about what separates the “yes” cases from the “maybe” cases from the “no” cases.

The first and most important thing about getting your license back is that you must be eligible. I get all kinds of compelling emails from people, some of whom pour their hearts into long explanations about how much they need to drive, but who are simply not eligible to move forward. When your license is revoked for multiple DUI’s by the Secretary or State, you are completely ineligible to appeal for a minimum”period of either 1 year (for 2 convictions within 7 years) or 5 years (for 3 DUI’s within 10 years). Until that time period has run, there is no workaround, and nothing that can be done to get a person any kind of license in the meantime. A lot of people don’t quite get this…

The day before this article was written, I had called to check in with my office after finishing (and winning) a driver’s license restoration appeal hearing in Livonia. Both Ann, my senior assistant, and Genevieve, one of the attorneys, told me that they had almost simultaneously answered nearly identical phone calls, regarding ignition interlock violations: both callers had violated by testing positive for alcohol, and both callers freely admitted that they did so because they had been drinking. To be clear, neither had been my client when they originally won back their licenses.

tn_No_BS-300x300Not to be too delicate about it, but WTF? These 2 guys had only recently won their cases by submitting documents supporting their sworn testimony that they had quit drinking. They went through actual hearings and answered questions that convinced the hearing officers that each one was a safe bet to never drink again. Then, on top of all the other flawed thinking that went into these disasters, they figured they could somehow drink anyway, and fool the ignition interlock device.

My first thought was, how did their lawyers miss this? I’m sorry, but there’s no other way to describe what happened other than as a complete failure of lawyering, in every sense. Even if these guys were Academy-award caliber actors, and they managed to fool their lawyers, the counselors who did their substance use evaluations, and the hearing officers who decided their cases, how did it come to this? There comes a point, at least in my office, where we explain to each client how the interlock unit works. We make clear to our clients how to avoid problems with the device, all of which is predicated on the person NOT drinking.

In part 1 of this article, I pointed out that when a person wins a Michigan driver’s license restoration case and is required to use an ignition interlock, his or her performance while using it will be carefully monitored. I further noted that many (if not most) people do run into some kind of problem with the device while on it. Because the Michigan Secretary of State has certain expectations and requirements for proper interlock use, if a person does have any “issues” while on it, he or she will have to be explain those away to the satisfaction of a hearing officer, either at a violation hearing, or at least when he or she appeals for a full license.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2019/02/Requirements-vs.-Expectations-300x241.jpgUnder the law, the person seeking to win (or keep) a license has the burden of proof. It means that if a person is violated while on the interlock, he or she has the burden of proving that a positive alcohol result did not occur from beverage consumption, or that a skipped test wasn’t missed because he or she had been drinking. Ditto for a tamper/circumvent violation. This works the same way when a person is going for a full license and there is any issue on his or her final interlock report.

Years ago, a now-retired hearing officer told me that during an interlock violation hearing, he discovered that a guy had disconnected the power to the device for a few minutes, only to hook it back up after changing the settings in such a way that it would always provide negative breath results, even if he had been drinking.

This article will be about ignition interlock violations, and also what you’re expected to do while on it. We will examine how a person’s performance on the interlock for the 1st year after a successful driver’s license restoration appeal affects his or her ability to get a full license thereafter. This installment will be broken into 2 parts examining the requirements for and expectations of a person using an interlock unit, and how they must be met to win your full license back.

download-5Let’s begin by explaining a key word here: violation. Almost everyone involved in the license appeal process, including driver’s license restoration lawyers, like me, and even the Michigan Secretary of State Administrative Hearing Sections (AHS) hearing officers, use this word rather loosely, and very often, incorrectly. Although it’s not accurate to do so, the term “violation” is frequently used to describe any situation where something goes wrong with the interlock unit itself, a result it produces, or how a person uses it.

To be technical about it, an ignition interlock violation consists of an instance or instances of non-compliance with the legal requirements for use of the machine that results in a formal violation of a person’s restricted license. If that formal violation is not successfully resolved with the Secretary of State (almost always after a full-blown hearing), the person’s license will be be revoked all over again, for good. This is called a “reinstatement of original action.”

In part 1 of this article, we saw that when a person quits drinking and then goes back to it, without calling that a relapse, it shows that he or she doesn’t really understand sobriety. This, of course, will kill any chance of winning a driver’s license restoration appeal, but it also can create problems for a pending drunk driving charge. In 2nd and 3rd offense DUI cases the analysis of relapse is somewhat different than in a 1st offense case, but the importance of how a person views his or her relationship to alcohol – both past and present – cannot be overstated in any drunk driving, license appeal, or other case where there is an inquiry about that relationship.

IMG_7100-copy-300x209In each and every 2nd or 3rd offense DUI case, the whole world, and especially the court system, believes the person has a drinking problem. One of the chief aims of the legal process is to help a habitual offender (that’s the legal term in Michigan for anyone who gets up a 2nd or 3rd DUI) understand that however infrequently he or she may drink, whenever they do, it’s risky. The court’s goal in any 2nd or 3rd offense DUI is to get a person to stop drinking for good, if not for his or her own sake, then at least for the safety of the public.

The goal in any 1st offense DUI case is also to help anyone who has an alcohol problem. However, unlike in 2nd and 3rd offense cases, where a person begins with the presumption that he or she has such a problem, in 1st offense cases, the court relies upon the mandatory alcohol screening to see if a person does, in fact, have a drinking problem, or is otherwise at elevated risk for one to develop.

If someone picks up a drink after having abstained for any length of time and does not think of that as a “relapse,” then he or she probably doesn’t have a good understanding of what it really means to be sober. This is a problem for a driver’s license restoration appeal, and can complicate a Michigan DUI charge, as well. This will be a short, 2-part article (it was just a bit too long for one installment) examining the importance of how a person self-characterizes drinking again after having stopped for a while.

Success-are-stepping-2-300x180More than anything else, it shows that the person was never committed to abstinence as a component of sobriety. Only when a person genuinely accepts and understands that his or her relationship to alcohol has become troublesome does he or she also know that any drinking thereafter is a problem. That kind of insight changes everything.

When a person who hasn’t had a drink for a certain amount of time picks up again (even a single drink), but doesn’t consider it a relapse, or “slip,” it is safe to say that he or she was never really “sober “in the first place. In fact, it’s safe to say that he or she doesn’t even have a basic understanding of what real sobriety is all about. This kind of thinking stands as a complete roadblock to success in a driver’s license restoration case, and can turn a regular drunk driving case into a nightmare.

The absolute key to winning a Michigan driver’s license restoration or clearance case is that you are sober! This means you have quit drinking for good. I’ve repeated this countless times in many of my previous blog articles, so in this installment, I want to step back and examine how attitude and insight are really the foundation of sobriety, and, by extension, really at the heart of a successful license appeal. Our subject here applies to anyone considering a license appeal, from those people who present as ideal candidates to win, to those who need a real attitude adjustment to be anywhere close to winning, and everyone in-between.

light-bulb-e1540311629398Let’s begin with those who really “get it.” These people understand that no one quits drinking because it’s working out so well. They decide to “put the plug in the jug,” to borrow a phrase, because alcohol has just brought too much drama and trouble to their lives. This realization comes like getting smacked upside the head for the millionth time. When this happens, these individuals look back and wonder how they could have NOT seen alcohol as the common denominator to all the things that had gone wrong in their lives, including not having a driver’s license because of their drinking. This is a fundamental shift in attitude, because once a person really gets it, he or she cannot honestly justify or rationalize drinking again.

The decision to quit drinking and get sober is truly transformative. Beyond all the work and changes that a person will undergo as he or she adopts an alcohol-free lifestyle, the final product – the sober person – is night-and-day different from who he or she used to be. There is a real change in attitude, and everyone around the person notices it. Yet as huge as these changes are, they all come when a person has the simple self-realization that his or her drinking has become too much of a problem, and then concludes, “I just can’t do this anymore!” That’s the  insight changes everything.

This article will explain the restricted license that is granted when you win a Michigan driver’s license restoration appeal. Because the what you can and can’t do aspect of a “restricted license” is not often examined in detail, there is a misunderstanding that the restricted license you win after a restoration appeal is identical to the kind you get after a DUI. Although the legal meaning of “restricted license” in Michigan is fixed, there can be some big differences between the kind of driving allowed after a successful license appeal at the Secretary of State, and what’s permitted by the restricted license automatically issued after a 1st offense OWI conviction.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2018/12/whatitisnot-1.2-300x252.gifFirst, let’s understand what a restricted license is, and that’s best described by defining what it is not: a restricted license is not a full license. It is an accommodation, like a half measure, that is understood will NOT completely cover a person’s driving needs. A restricted license, by definition, is a license with restrictions. The intended result of a restricted license is to give a person some help in getting by, and this may work better for some people than others. That’s a given, and just the way things are. Moreover, this limited ability to drive is all business, without any provision for fun or recreation.

Under Michigan law, a restricted license allows for certain, specified things, and only those things. It needs to be pointed out (often, in fact) that there can be NO modification to the terms of a restricted license, except that, in a Michigan driver’s license restoration case, the hearing officer can expand the hours during which a person can drive, and during those expanded hours, the person may drive for any reason whatsoever, and not just for the purposes permitted by a restricted license.

In part 1 of this article, we began our examination of the ignition interlock in the context of Michigan driver’s license restoration and DUI cases. An ignition interlock unit is required if you win a Michigan driver’s license restoration case, get a restricted license through a sobriety court, or are convicted of OWI with a BAC of .17 or greater (High BAC). In addition, some Judges order an interlock as part of their sentence for a DUI (other than a High BAC). However it happens, if you have to use an interlock, there are certain things you must do, others you cannot do, and, often enough, problems to deal with as part of all that. Here, in part 2, we’ll continue with our overview.

D-85332-2013The main thing about interlock units is understanding how not to screw up, and, almost as important, what to do if things go wrong. When you’re a passenger on an airplane, you don’t really have to worry about the flying part of things, because the pilot takes care of that. You just need to know what to do if the oxygen masks drop, or if there is an emergency. With the interlock, learning how to use it takes mere minutes, and it becomes second nature almost instantly. I can’t stress enough that for as complicated as this may sound at first, getting and then learning how to use an interlock is really simple. It’s when something goes amiss that you need to be prepared, and we’ll get to that.

Once it’s installed, you have to blow into the interlock unit in order to start your vehicle, and, while driving it, will have to blow into the machine and provide breath samples when prompted. This is all done through a handset attached to a cord. When the unit is installed, you will be shown how to use it. There are things you must be taught, like blowing hard and long enough to provide a proper sample. Again, while it’s hard to explain all this here, there is zero chance you’ll leave the facility not knowing how to use this thing.