Michigan Criminal Defense Lawyer Blog
It’s very hard to get by without a driver’s license. As Michigan driver’s license restoration lawyers, my team and I know this very well. Because we handle over 200 license appeal cases ever year, we really have “heard everything.” One mistaken belief we have to correct all the time is that having completed a DUI sentence and done what was required for probation somehow qualifies a person to win a license appeal. In this article, I want to clarify why merely following the court’s orders and completing probation doesn’t come with a license to drive, and then explain what a person must do to get it back.
In Michigan, the revocation of a person’s license is mandatory after either 2 DUI convictions within 7 years, or 3 within 10 years. As the reader no doubt knows, the terms of probation for 2nd and 3rd offense cases is significantly more demanding than anything he or she received after a 1st offense. In both 2nd and 3rd offense cases, the law requires a person to complete some counseling and/or treatment. In addition, regular testing is almost certain, and sometimes, even attending AA is required by the court. Consequently, it’s not unusual for a person to think all of that is enough to win a Michigan driver’s license restoration appeal.
By itself, however, it is not. Winning a license appeal case is always about proving, above and beyond any kind of counseling or treatment a person may have completed, that he or she has honestly quit drinking and has both the ability and commitment to never drink again. Absent sufficient proof of his or her sobriety, what a person did or did not do as part of his or her DUI sentence doesn’t matter at all. Of course, if someone actually gained tools he or she uses to stay sober through probation, that’s great, and it can be helpful in the context of a license appeal.
More than anything else, driver’s license restoration cases are all about not drinking. One thing our firm has learned from all of our years handling license appeals is that people often mistakenly assume that the court which handed down the sentence for their DUI actually knew what’s required to win a license appeal, and/or took that into account when imposing the terms of their probation.
That assumption isn’t just wrong, it’s dead wrong. The courts know little to nothing about the complex requirements of Michigan driver’s license restoration appeals. This isn’t a knock against or any kind of insult to them, because the simple fact is that the courts have no reason to know anything about the Michigan driver’s license restoration process.
Although the DUI court process and the Michigan license appeal process may seem to be connected, they aren’t. The court handles DUI cases from start to finish, while the Michigan Secretary of State’s Office of Hearings and Administrative Oversight (OHAO), the division that handles license restorations, cannot get involved until long after a DUI case is finished and a person’t mandatory driver’s license revocation period has run.
In that sense, the courts and the Secretary of State are like parallel but separate rails to the OWI (Operating While Intoxicated, the proper legal term for what everyone just calls “DUI”) process.
It’s like this, because, back in 1998, when Michigan overhauled its drunk driving laws, all licensing authority in drinking and driving cases was stripped away from the courts and transferred solely to the Secretary of State.
Accordingly, the reason the courts don’t know about Secretary of State’s license appeal process because they have absolutely nothing to do with it.
Let’s circle back to that major overhaul of Michigan’s drunk driving laws in 1998 to help understand why.
A key part of that legislation was the creation of a special categorization for anyone who racked up 2 DUI’s within 7 years, or 3 within 10 years. Any such person is automatically classified as a “habitual alcohol offender,” and, among other things, will have his or her driver’s license revoked and be unable to get it back until and unless he or she files and wins a formal driver’s license restoration appeal before he Secretary of State’s OHAO.
An important consequence of being categorized as a “habitual alcohol offender” is that every such person is presumed, by law, to have a drinking problem of some sort. This presumption not only plays a role in how he or she is treated in the DUI case, but is also a key factor in any subsequent driver’s license restoration appeal, as we’ll see later.
In 2nd and 3rd offense DUI cases, the law is written to deter the person from ever driving drunk again. Given that a repeat offender is, by definition, someone who has done this before, it means that whatever remedial measures were imposed the last time didn’t work, so it’s no surprise that things will get ramped up for any subsequent offense.
By law, anyone convicted of a 2nd or 3rd offense MUST be sentenced to some kind of counseling, at a minimum, in addition to whatever potential penalties are provided by law. In the real world, Judges are going to impose what they think is the best combination of punishment and rehabilitation. Thus, in some courts, a 2nd offender may, for example, get a short jail stint, and then be required to complete an IOP (an intensive outpatient treatment program), and/or attend community support meetings.
The courts are not, and, when you think about it, really should not, be concerned about what a person needs to do to win a license appeal before the Secretary of State. Instead, their efforts must be directed to making sure the repeat DUI offender under their jurisdiction just never drives drunk again.
Things are a little bit different, however, for anyone who goes through a Sobriety Court program.
In 2011, Michigan began its Sobriety Court initiative, allowing repeat DUI offenders in certain jurisdictions to enter into an intense treatment program for alcohol (and substance) abuse overseen by designated and specialized courts. There is a lot the whole Sobriety Court thing, but it has proven to be one of the better ideas to ever come out of Lansing.
In essence, it boils down to a person agreeing to go through a very demanding program of counseling and treatment administered by a special division of certain courts, and getting what amounts to thousands of dollars of services either free, or for a nominal cost.
A huge part of this deal is that a Sobriety Court Judge can override the mandatory revocation of a person’s driver’s license in 2nd and 3rd offense cases, and grant restricted driving privileges after 30 days.
A Sobriety Court participant can keep that license as long as he or she is in compliance with the program’s rules.
On the flip side, the person also basically agrees to increasing punishments, including graduated stints in jail, if he or she violates the rules, or tests positive for alcohol or drugs. Of course, the testing is rather intense, as these programs are meant for people who are truly serious about getting and remaining sober.
The end result of a Sobriety Court program is supposed to be, and, fortunately, very often is, a genuinely sober person. It has been our firm’s consistent experience that these programs really do work.
Although Sobriety Courts don’t know anything more about their role in the license process other than they can grant a restricted license in the cases under their jurisdiction, in practice, completing a sobriety court program and then remaining sober for a sufficient period of time thereafter is often enough for my team and I to be able to put together a winning license appeal case on a client’s behalf, and get them full, unrestricted driving privileges.
That only works, however, for those people who complete a Sobriety Court program AND who do, in fact, remain sober afterwards.
Everyone else, meaning those who did not go through and graduate from a Sobriety Court program, cannot simply rely upon having completed probation and whatever else they had to do as part of their DUI probation.
Except for those who did complete Sobriety Court, the idea that, “I paid my dues,” or, “I did everything that was asked of me” isn’t, by itself, enough to win a license appeal.
To win a Michigan driver’s license restoration or clearance case, a person must always prove (remember, he or she is presumed, because of the “habitual alcohol offender” categorization, to have some kind of alcohol problem), among other things, and by what the law specifies as “clear and convincing evidence,” these 2 issues:
First, that his or her alcohol (and/or substance abuse) problem is “under control.” As used in the main rule (Rule 13) governing license appeals, an alcohol problem is “under control” when a person has maintained complete and total abstinence from alcohol (and all other substances, including recreational marijuana) for a legally sufficient period of time. While the exact amount necessary can vary from case to case, our firm will generally never move forward with an appeal unless a person has been totally alcohol and drug-free for at least 18 months.
Second, that his or her alcohol (and/or substance abuse) problem is “likely to remain under control.” A problem is “likely to remain under control” when a person can prove that he or she has both the commitment and the ability to remain completely alcohol (and drug) free for the rest of his or her life.
In short, a person must convince the hearing officer deciding the case that not only has he or she been clean and sober for that “legally sufficient” period of time, but is also a safe bet to remain clean and sober for good.
Merely having done what a regular, non-sobriety court required in a previous DUI case does not specifically address those issues, unless it all culminated in a person really getting sober.
In other words, a person could have simply completed a short course of counseling for his or her probation, but also made the decision to get and stay sober, and that, with sufficient proof, would be enough of a foundation upon which my team and I can build a winning case.
To be clear, it’s not how much counseling or rehab a person has done, but rather whether or not he or she has honestly quit drinking and gone on to adopt a sober lifestyle that matters. That’s the key to getting back on the road.
If we try to boil all this down, it would be fair to say that, when it comes to getting your license back, things like having merely served out your probation, or not having gotten in anymore trouble, or not having had a license in a long time, aren’t enough
Instead, the key is that you made the decision to quit drinking (and/or using any other substances) and have stuck with it. To win a license appeal, you have to prove sobriety.
A person could have gone through 10 rehab programs and attended 3000 AA meetings, but if he or she hasn’t really gotten and stayed sober, none of that matters.
By contrast, if a person attended counseling, even if only for a short while, but really did decide to quit drinking (and using any other substances) and came out of it committed to remaining clean and sober, and then followed through with that by actually staying sober, then he or she has the ingredients for a successful license appeal.
I say that with confidence, because not only do my team and I do this all the time, but our we guarantee to win every driver’s license restoration and clearance appeal case we take.
At the end of the day, and as noted earlier, license appeals are all about NOT drinking.
If you are looking for a lawyer to win back your license or clear a Michigan hold on your driving record so that you can obtain a license in another state, be a wise consumer and read around. Check out the Driver’s License Restoration section of this blog; with more than 640 fully searchable articles to date, it has more information than you can find any and everywhere else combined.
As you do read around, pay attention to how different lawyers explain the license appeal process, and how they explain their various approaches to it.
When you’ve done enough of that, start checking around. You can learn a lot by speaking with a live person.
Our firm can handle your case no matter where you live. All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST), at 248-986-9700 or 586-465-1980.