Articles Posted in Driver’s License Restoration

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.

In the course of our work as Michigan driver’s license restoration lawyers, we handle a lot of ignition interlock violation cases. While an interlock violation is always frustrating for the person who gets it, we also feel the same way when it occurs after a person could have otherwise gotten off the interlock and had a full license. Under Michigan law, when a person wins a driver’s license restoration case, he or she is required to drive on a restricted license, with an interlock unit, for at least 1 year. After that first year, he or she can request unrestricted, full driving privileges.

234-300x270It’s one thing when a person runs into some kind of trouble with the interlock device during that first year. As the saying goes, “$hit happens,” and that’s especially true when using a breath alcohol ignition interlock device (BAIID). Questions about whether or not a particular violation could have been avoided may be relevant during that first year, but after that, no matter what, the simple fact is that a person could have avoided any issues simply by having moved forward to get off the damn thing and regain full driving privileges.

The real inspiration for this article came 2 days before I started writing it, when I went in for (and won) yet another violation hearing for a fellow whose wife said that she’s been on him for a while to go for his full license and get the interlock removed. For whatever reasons, being on a restricted license just “works” for a lot of people, and as much as they know they should go for the full thing, just being able to drive again for work after not having had a license for so long has brings such relief, they don’t feel any real pressure to do anything more.

In order to win a Michigan driver’s license restoration or clearance case, a person has to be genuinely clean and sober. I have to raise this subject rather frequently, because my office gets contacted all the time by people who don’t really understand what sobriety means, and want to plow ahead with a license appeal even though they still drink or use marijuana. They miss that the first requirement, and key to winning, is proving that you have quit drinking and/or getting high for good. In this article, I want to take a quick look at how that applies to drinking, and using marijuana.

1-marijuana-alcohol-ma-cabr-min-2-300x195The rule governing license appeals necessitates that a person show that he or she has been alcohol and/or drug free for a sufficient period of time (at least 1 year, although longer is always better) and that he or she has the commitment and the ability to remain clean and sober for life. That leaves no room for any drinking, nor the recreational use of marijuana – ever. We’ll skip any discussion of medical marijuana in this piece, because whether or not its use will prevent someone from winning back their license can only be determined on an individual, case-by-case basis.

As much as I try to explain this every way possible within these blog articles, and although I always try to be diplomatic about it, the simple, cold truth is that only a minority of people truly “get it” when it comes to sobriety. That’s a problem, because only those who do get it have any chance of getting back on the road. Indeed, the main job of the Michigan Secretary of State hearing officers who decide license appeals it to screen out those few people who do get it from all the rest who don’t.

In part 1 of this article, we began exploring the critical role of recovery and sobriety in a Michigan driver’s license restoration or clearance appeal. The first consideration for winning your license back is proving that you have quit drinking for a sufficient period of time, and are a safe bet to never drink again. Without that, you have no chance to win. The Michigan Secretary of State (SOS) has zero interest in how long you’ve been without a license, how much you “need” one, or anything like that. The main focus of the license appeal process is about proving that you’re sober, not just that you’ve stopped drinking.

7-1-300x206There are plenty of people that stop drinking for a while, but for that to become permanent, meaning in order for someone to go from merely being abstinent to being genuinely sober, some fundamental changes have to take place from within. Getting sober requires altering a lot of things in one’s life. This is reflected in one of the most important bits of advice a person will hear in AA: “Avoid wet faces and wet places.”

Simply put, this means that a person in early recovery should stay away from bars and places where people gather to drink, and also stay away from people who drink. That doesn’t require a person to cut out any and everyone out of their life who enjoys a glass of wine once in a while, but it does mean that they can’t be hanging with people for whom drinking is a primary activity, or hanging out with them when they do drink.

At the heart of my practice as a Michigan driver’s license restoration and DUI lawyer are issues of recovery and sobriety. In the context of a driver’s license restoration case, where everyone has had at least 2 DUI’s, the law presumes that the person has an alcohol problem. Accordingly, the main issues, in a license appeal case, are proving that the person has quit drinking, and has the commitment and tools to remain alcohol-free for good.

Sobriety-and-Recovery-1-300x185The first question – have you quit drinking? – must be answered with an honest “yes” by anyone who hopes to win back his or her driver’s license. Next, I’ll need to know when. In general, a person should have at least a year sober before giving any serious consideration to starting a license appeal. In practice, I generally won’t file a license appeal until my client has been sober for a minimum of 18 months.

The idea of having quit drinking for good is so basic that it’s easily overlooked as people think about getting their license back. The Michigan Secretary of State, however, doesn’t overlook anything, and has very clear-cut rules about granting license appeals that require a person to have been alcohol-free for a sufficient period of time, as well as proving they are likely to remain sober for life.