Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began our discussion of why you should come back to Michigan if you want to clear a Michigan Secretary of State hold on your driving record. The process that will enable you to obtain, or, in some cases, renew a license in another state is called a clearance. The Michigan Driver Assessment and Appeal Division, or DAAD, will accept an appeal by mail that does not require a person to come back for a hearing, but only 1 out of 4 of those appeals ever wins. That’s a 75% chance of losing, and being stuck without a license for another year. By contrast, if you’re really sober, and have honestly quit drinking, I guarantee that I will win a clearance for you.
In this second installment, we’ll pick up with our inquiry by looking at the letters of support that must be filed as part of the initial paperwork in order to begin a formal license appeal. This applies equally in cases of out-of-state, administrative appeals, or in-state, in-person appeals. The Michigan Secretary of State’s Driver Assessment and Appeal Division, or DAAD, requires that a minimum of at least 3 support letters accompany the substance abuse evaluation. Based upon my experience, I generally require at least 4 letters of support.
For all of the information I provide on my website, and in the Driver’s License Restoration section of this blog, I have to be careful about giving away too much here. I have to guard exactly how I edit the letters of support, and what I do in the editing and revising process as something of a proprietary secret. Almost as confirmation of this, and in a surprising way that felt like both a compliment and an a bit of a warning, within the several weeks before writing this article, I have spoken with at least 3 lawyers who have thanked me for the help they get from this blog in doing research about how to handle certain cases. I’m glad to help, to a point. One must never lose sight of the axiom that “a little knowledge is a dangerous thing.” A thorough understanding of the context of proper letter editing can be more important than the words themselves.
Typically, letters of support come up short because the writer does something like trying to explain to the state how much a person needs a license. Rest assured, the DAAD already knows that everybody needs a license. To win a license appeal, you must prove by clear and convincing evidence that your alcohol problem is under control, and likely to remain under control; needing a license has nothing to do with it. The state does not care how hard it has been without a license, nor does it care what opportunities await if you win it back. It may sound cold, but the reality, from the DAAD’s perspective, is that you should have thought about that before a second (or third, or fourth, etc.) DUI.
Another faux pas of many letters is trying to convince the DAAD that the person “deserves” a license. While the underlying sentiment there is understandable, that determination is exclusively for the hearing officer to make, and like anyone else with a job, they aren’t especially anxious to have someone tell them how to do it. The only things that matter, in the determination that you “deserve” restoration of your license (or the issuance of a clearance), is that your alcohol problem is under control, and likely to remain under control. Accordingly, I often have to redirect the focus of support letters to that subject.
Letters written by friends who were part of the subject’s drinking days don’t fare particularly well, either. This might take a few seconds to “get,” but when someone talks about having hung out with the person filing the license appeal back when his or her drinking was a problem, and then points out how he or she has changed, the person writing the letter can be perceived by the DAAD as part of that old, “bad” lifestyle, and certainly part of something that should be left in the past. Does that mean that we can’t use a letter from such a person? Of course not, but it does mean that we really have to shift the letter writer’s perspective quite a bit. For me, it means a pretty big editing job.
The truth is that I have to perform substantial editing on more 90% of the letters that cross my desk. When I meet with a client who has tried a “do-it-yourself” administrative appeal before (and obviously lost), and review the documents filed in that previous case, I always find the letters to be anywhere from inadequate to outright harmful. To be clear, this is not a clinic in letter writing or proper grammar, but rather about what the letters need to say, and what they shouldn’t get into. I’d love to make it out like I’m just incredibly gifted and supremely intelligent, but the truth is that I’ve learned most of what I know the hard way. With more than 2 decades of experience dealing with both what does and does not work in the letters of support, my clients are paying for experience and skill honed by more than 23 years of hard-earned lessons.
Another common example of a support letter problem is when a well-meaning family member attests to the sobriety of the person about whom the letter is written by pointing out that at family functions where everyone is drinking alcohol, the person filing the license appeal remains abstinent. This does not paint a particularly bright picture of family support…
Does this mean that the whole family needs to become non-drinkers? No. Does it mean that they must not drink at family functions, or at least pretend they don’t? No. It does, however, take a bit of “diplomacy” to explain this in just right way, so that the abstinence of the person filing the appeal is the focus of the letter, and that the letter doesn’t raise any more questions than it answers. Again, the secret here is proper editing, and that’s my job.
A pervasive element of almost all un-corrected letters is that, to some extent, they just turn into what a colleague of mine calls “good guy letters,” meaning that the writer goes on about what a good person (guy or gal) the subject really is. Again, that’s nice, but not helpful in a license appeal. From an evidentiary point of view, as long as the letter properly attests to the sobriety of the subject, it can also describe him or her as utterly rotten, and still be beneficial. Sometimes, letters typed by accomplished and highly educated supporters aren’t even a fraction as helpful as a handwritten note from someone for whom composition and English skills aren’t exactly a strong point. What I’m getting at is that, in a Michigan license clearance appeal, letters aren’t “good” because they’re well written; they’re good because they help the cause, and almost all support letters need some help to get to that point.
A few weeks after meeting with me and having your evaluation completed, I’ll have everything on my desk. Normally, I will be working on the letters around this time, as well. The evaluation really goes through 2 inspections once it arrives at my office: First, Ann, my senior assistant looks it over, and literally notes anything that catches her eye (beyond just pointing it out to me, she’ll paste a “sticky note” on the evaluation itself wherever she finds something that she wants to call to my attention), then I inspect it to make sure that it is legally adequate and favorable. Whatever else, you absolutely cannot win a license appeal with an evaluation that is either legally inadequate or not favorable (the term used by one the Livonia hearing officers is “questionable/insufficient“). This means that if the evaluation is not good enough, it doesn’t get filed – period. This also accounts for why so many do-it-yourself appeals lose, and why I don’t.
The letters have to be read, edited, sent back, revised, then re-checked. The evaluation has to be double-checked, and everything has to “mesh.” Helpful in making sure everything is consistent is my “substance abuse evaluation checklist,” which becomes a kind of clearing house for the facts of any given case. When everything has been checked a final time, we file it with the state, and wait for a hearing date.
I fundamentally believe in hearings. There is no hearing in an administrative appeal, and that’s precisely why I don’t get involved with them. Here’s something to think about, and, if you think about it enough to really get it, you’ll never consider an administrative appeal again. There are several reasons why every 3 out of 4 of these appeals loses. Remember, you have to prove your case, meaning the 2 legal issues (that your alcohol problem is under control, and that it is likely to remain under control) by “clear and convincing evidence.” The bottom line to this “clear and convincing evidence” standard is that your evidence is neither clear, nor convincing if the hearing officer is left with any unanswered questions. At every hearing, the hearing officer has lots of questions, absolutely NONE of which he or she can ask if you have chosen to not be there…
This means that a person, out there on his or her own, has to put together all the evidence necessary in a case to prove, by clear and convincing evidence, that his or her alcohol problem is under control, and likely to remain under control, and do it so well that the hearing officer deciding the case won’t have a single question.
Good luck with that. I know exactly what I’m doing, and I will not handle an administrative appeal for any amount of money. Make no mistake, plenty enough people are willing to pay my regular fee if they can skip coming back to Michigan, but I’m not interested in doing things that way. That’s a shortcut, and there are no shortcuts to doing things right. I take these appeals to win, not just pocket a fee. If I take your money, I give you a guarantee because I am controlling the course of and the evidence presented in the case. An administrative appeal, by contrast, is just your “best shot,” and not the kind of shot anyone can guarantee because it’s more like a shot in the dark than anything else. Again, this is why only 1 out 4 administrative appeals ever wins, and who knows how many attempts (read: years) it takes for that to happen.
I spend a lot of time preparing for a license hearing. Beyond preparing myself, I make sure to thoroughly prepare my client the night before the hearing itself. My prep sessions usually take about an hour, and are scheduled for the evening, after regular business hours, so that I can dedicate my full attention to the next day’s hearing. By the time my client and I walk into that lobby, we are beyond ready for the questions that will be asked
Anyone who skips the hearing is gambling on losing odds. I mean that literally, because the chances are 3 out of 4 that any given case will lose. It doesn’t take a rocket scientist to figure out that when the hearing officer has a question, as he or she most surely will, and you’re not there to answer it, then there goes any chance of you driving for the next year.
I have written entire articles on the various nuances a license appeal hearing, and this isn’t the place to rehash all of that. The more important point here is that you are at huge disadvantage if you wing a license appeal by mailing in a bunch of forms and hoping that things go your way. The whole legal process (having to prove that your alcohol problem is under control and is likely to remain under control by clear and convincing evidence) makes clear why this is the case, and the statistics back that up. The question really becomes, how serious are you about wanting to win a clearance the first time, or, if you’ve already tried on your own and lost, the next time