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Articles Posted in Driver’s License Restoration

As Michigan driver’s license restoration lawyers, we deal with the consequences of failed and missed ignition interlock breath tests on a daily basis. In this article, I want to explain why a startup failure is such a big deal, especially because, it won’t, by itself, result in a formal ignition interlock violation, but will cause problems later on. The main point I want to make is that even a single startup test failure will present an obstacle down the road, when a person goes back to get his or her full license.

https://www.michigancriminaldefenselawyerblog.com/wp-content/uploads/sites/286/2020/01/450.1-258x300.jpgThis whole startup failure issue is “contemplated” within the notice of proper ignition interlock use contained in every order that’s issued after a successful driver’s license restoration appeal. The Michigan Secretary of State (SOS) provides rather detailed instructions about how to avoid any kind of violation in the first place, and then what to do if a person misses or fails a test. Unfortunately, the SOS drops the ball on this issue because the notice of interlock use “strongly suggests” that a person who fails a startup test obtain a timely PBT or EtG test, when, in fact, it generally EXPECTS a person to get one of these tests, and often penalizes those who don’t do so.

Whatever one can say about all this, as the saying goes, “it is what it is,” and we have to deal with things as they are, not how we’d like them to be. The reality is that if you are required to use an ignition interlock after a driver’s license restoration appeal, or while on a Sobriety Court license, either you take the steps necessary to protect yourself, or you’ll regret not having done so later on. The day before this article was written (I write them about 2 months ahead of publication), I received an email from a previous client of mine, and the exchange of messages between us explains this whole issue better than anything else I could ever write. For reasons of confidentiality, I have redacted the client’s name and replaced it with [Previous Client], or [Previous]. Otherwise, I have copied and reprinted our emails below, exactly as they were written:

There is an old saying that, “a little knowledge is a dangerous thing,” and while it has almost universal application, it is especially relevant when someone tries to “play lawyer” and handle his or her own driver’s license restoration or clearance appeal. You can learn can get a lot of information from it, but Google can’t give you a law degree. People often confuse, or incorrectly equate information with knowledge and experience. A person can acquire information about a particular subject, but that’s very different from having a systematic understanding of it, especially from having actually done it (successfully, no less).

you-dont-know-222-287x300The dictionary defines systemic as follows: “relating to a system, especially as opposed to a particular part.” In terms of driver’s license restoration and clearance appeals, this means that understanding the individual parts of the license appeal process isn’t enough; one has to understand how they flow and interact, as a system. For example, most people know that to win a license appeal, you have to submit a “favorable” substance use evaluation (SUE), but they don’t really understand what the various course specifiers on the front page mean, nor what the differences are between them.

The license restoration process is, in every sense of the word, a system, and it is based on certain, well established principles of law. The whole “burden of proof” requirement serves as another example; the law mandates that, in a license appeal, a person prove his or her case by what is defined as “clear and convincing evidence.” Anyone handling a license appeal needs to know exactly what that means, and how that standard compares with, and is different from, the other legal standards of proof, like “preponderance of the evidence,” “probable cause” and “proof beyond a reasonable doubt”.

In our roles as Michigan driver’s license restoration lawyers, we hear a lot about other lawyers with whom our clients have spoken regarding license appeals before calling us. We are often told how much our guarantee mattered to some of the people who ultimately become our clients. More than just assuring a winning result, though, our guarantee is symbolic of the higher level of service we provide throughout the entire license appeal process that sets us apart from those other lawyers. At a minimum, I couldn’t imagine not standing behind our work and guaranteeing to win every initial license restoration and clearance case we accept.

df9d13c3012d61dfa1349b8e9d06ec79-300x300Why should anyone risk their money on some lawyer or firm without enough confidence to assure success? Driver’s license restoration and clearance cases are very different from other areas of law, where there can be no guarantees. In a perfect world, a guarantee such as ours wouldn’t be anything special. Instead, it would be a “given,” and serve as a starting point from which a potential client could begin to compare lawyers, Rather than standing out for having a guarantee, like we do, attorneys taking license restoration cases would stand out for NOT having one. That’s not how things, are however, and our guarantee does stand out.

At the end of the day, our guarantee also serves as a quality control measure. It means that it goes against our interests to simply tell people what they want to hear and take any old case. In fact, having a guarantee means we often have to tell people exactly what they don’t want to hear; that we won’t take their case because they’re not yet eligible or otherwise ready to win a license appeal case. Having a guarantee not only protects the client from risking his or her money on merely taking a “shot” at winning a driver’s license appeal, but it also gives us reason to avoid taking any cases that we aren’t sure we can make into a winner. And to be clear, we earn our living by winning these cases the first time around, not doing warranty work.

The best way for someone who lives out of state to remove a Michigan  Secretary of State hold on his or her driving record is to come back and do it in person. My office handles about 200 license appeal cases every year, and more than 1/3 of them are clearance cases for people who have moved out of state. Part of the reason we guarantee to win every case we take is that we require our out-of-state clients to come back, in order to do this right. The alternative to coming back is an “administrative review,” which is an appeal by mail where, instead of appearing for a live, in-person hearing, a person merely sends in his or her evidence for consideration. Each year, 3 out of 4 administrative reviews are denied.

SSSSS-273x300Let me be very clear about this: even though we don’t do administrative reviews, it is not my intention to try and dissuade anyone who wants to give it a shot from doing so. I could write a book about all the things that can, and usually do go wrong with these “appeals,” but for all that effort, it’s far easier for me, instead trying to talk anyone out of trying an administrative review, to just say give it a whirl; if you win, then good for you, and if you don’t, then call us. For everything else I could say, the reality is that many of the people who hire us for a “proper” clearance have already tried to do it on their own, and called us after losing.

There are lot of reasons that administrative reviews fail, but 2 of them stand above all others: First, most of them are based upon an inadequate substance use evaluation, and second, not being present to answer the hearing officer’s questions is a real problem, since there are always questions. In the real world, most lawyers don’t really know how to properly do a license restoration or clearance appeal (certainly not enough to guarantee their work), so how can better work be expected of anyone trying it on his or her own? The fix, of course, is simple: skip the shortcuts, come back, and do this right.

In part 1 of this article, we began looking at how every person who manages to get sober has a “recovery story,” and, even if they’ve never thought of their experiences in that way, it’s that story that is really fundamental to winning a Michigan driver’s license restoration or clearance appeal. The 2 things a person must prove, in order to win his or her license back, is that he or she has quit drinking and been alcohol-free for a “sufficient” period of time, and that he or she is a safe bet to never drink again. How a person goes about staying sober is always unique to him or her, because the path of everyone’s recovery is different.

1547681302-artwork-aaa-300x287Some people go to counseling, some go to AA, some go to both, and a few go to neither. For some people, AA is a perfect fit. Plenty of others go for a while, but then stop, having gotten what they needed from the program. And for everyone who finds some benefit in AA, there are also lots of people who know that it just isn’t for them after a few meetings, or even after their first. Many sober people report having gone to counseling and/or AA in the past, well before they were ready to quit drinking. Then, something happened that suddenly made them realize they couldn’t drink anymore, and they decided to quit.

Some of these people manage to quit drinking without ever going back to counseling or AA. Lots of these people make clear that, even years later, they could recall the messages, if not the exact words, from their time in counseling and/or AA – the biggest and most important of which is that once you know you have to quit, you have to “stay quit” and can never pick up another drink again. Although there are common elements to everyone’s recovery, like the idea you simply can’t drink again, there are also plenty of things about each person’s recovery that are as unique to him or her as their fingerprints.

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.”

tell-your-business-story-xx-300x283The 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.

In part 1 of this article, we began an examination of the worst kind of ignition interlock violation – a start-up failure that is NOT followed either by any further testing on the interlock unit or a timely PBT or EtG test. We examined how, when it comes to driver’s license restoration matters, the term “violation” is (imprecisely) used to mean several things: a non-compliant incident, a formal violation that causes a person’s license to be revoked again, and a hearing when someone defends against a formal violation. As we closed out the first part, we began talking about the role of PBT and EtG tests.

cop-300x193As 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.

An EtG test, by contrast, can be given anytime within 12 hours and count as valid for interlock violation purposes. There is much debate about how long these tests can go back and detect alcohol, but really, there is really NO reason that a person on an ignition interlock, no matter what the circumstances surrounding a positive sample, can’t get to a facility by the end of that same day and provide a urine sample.

Ignition interlock violations are fairly common in Michigan driver’s license restoration cases. In this relatively compact, 2-part article, I want to focus on the worst kind of violation: a start-up failure where the person just walks away from the vehicle, and does not, thereafter, obtain either a PBT or EtG test to show he or she hadn’t been drinking. I wish there was some way that this piece could be read by everyone on an interlock BEFORE they run into any trouble, but the reality is, most people will find it when they’re looking for help after something has gone wrong. At a minimum, what we’ll cover will help explain why this specific type of interlock violation is so problematic.

dont-do-this-small-217x300Before 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.

Instead, any missed rolling retest, startup failure, tamper/circumvent or positive breath test result is simply, albeit erroneously, called a “violation.” Under the interlock rules, if a person has even 1 missed rolling retest or a tamper/circumvent, he or she is formally “violated,” and his or her license is revoked all over again. As if what we’re talking about isn’t confusing enough, that re-revocation of a license is technically called the “reinstatement of original action.” The only way for someone to get their license back is to request a hearing within 14 days from the date that reinstatement of original action (the revocation) goes into effect, which is usually about a week or so after he or she receives a notice of the violation from the Secretary of State.

As Michigan driver’s license restoration lawyers, we hear a lot of the same things over and over again. One of the most common things we’re told is that a person “needs” to get his or her license back. This is a topic I have to address rather frequently in order to keep it in the reader’s line of sight. In this article, I want to make clear that “needing” a license has nothing to do with actually being able to win it back, and then focus on the main thing the Michigan Secretary of State looks for in every license appeal: real sobriety.

Pencil-4License 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 complicated as the whole license appeal process can get, each and every one starts when a person who has had his or her license revoked for multiple DUI’s files an appeal to get it back. The ONLY thing the state cares about in all of these cases is making sure the person is not a risk to drive drunk again, and the law makes clear that the only people who will be allowed to drive again are those who no longer drink, and can show that they are likely to never drink again. In the context of a license appeal, the line in the sand has been drawn at no drinking, because people who don’t drink are exactly zero risk to drink and drive.

You cannot win a Michigan driver’s license restoration or clearance case and also use recreational marijuana. This article will look at why anyone who smokes pot (or otherwise even thinks they can occasionally drink) will automatically lose his or her license appeal. There is an exception to this for people who use medical marijuana for a serious condition, but our focus in this article will solely be on the recreational use of weed, how that stands in conflict with any notion of sobriety, and why that will stop a license appeal dead in its tracks.

ZBYYYYY-229x300As 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.

People in recovery understand that real sobriety specifically excludes the use of any mind or mood-altering, or potentially habit-forming substances, unless medically necessary, and even then, only when there is no suitable alternative. When that happens, the use of any such substances must take place under direct medical supervision. A person who is clean and sober simply cannot drink or get high, ever again. This is basic, fundamental stuff, kind of like “Recovery 101.”