Michigan Criminal Defense Lawyer Blog
In order to even begin the process of trying to win back your Michigan driver’s license (or the clearance of a Michigan hold on your driving record, if you now live out of state), you must be legally eligible to do so. Beyond the fact that you must wait either for the 1 or 5-year revocation period to pass before you can begin a Michigan driver’s license restoration or clearance case, you also must be off probation (or parole), as well. I have written rather extensively about this on both my website and other blog articles, but it seems time to address this topic again. A recent email I received serves as the inspiration for this article and puts everything in perspective:
I went before the board on Jan. 15, 2015 and was denied restoration of my license because I got off of probation Jan. 13, 2015 and the examiner denied my appeal because she felt I had not been off probation long enough but I didn’t know that being off of probation was a requirement. I was told I had to wait another year before reapplying. I just want to know is this true?
The answer, of course, is yes. Before I get into a more detailed discussion, it is worth pointing out that this very situation showcases one of the pitfalls of trying a “do-it-yourself” license appeal. The email writer will now have to wait a whole year before she can file again for reinstatement of her driver’s license. Had she contacted me (a full-time Michigan driver’s license restoration lawyer) beforehand, I would have advised her to wait a while. Although I almost certainly wouldn’t have had her wait a full year, she probably would have been able to get back on the road as much 6 months earlier than she ever has a chance of doing now.
My office gets lots of calls from people whose period of revocation has just ended – meaning they are legally, technically eligible to file a license appeal – but who are still on or have only very recently been released from probation (or, in some cases, parole). This is far more common with people who have been revoked for 1 year after racking up 2 DUI’s within a 7-year period, because many of these folks wind up on probation for 1 or 2 years. The reason you must be off of probation or parole to win a license appeal is that you have to prove abstinence from alcohol, and some of that abstinence has to be voluntary, meaning that you were not under any kind of control or order to refrain from drinking alcohol. Let’s look at this more closely…
There are 2 key issues in a Michigan driver’s license restoration appeal. First, you have to prove that your alcohol problem is “under control,” meaning that you have been abstinent from alcohol for a specific period of time. Second (and, in the larger picture, more important), you have to prove that your alcohol problem is “likely to remain under control,” meaning that you’re a safe bet to never drink again. Since “under control” translates to “sober,” there has to be a date since you’ve last drank. When you’re on probation or parole, you are, in all cases, required to refrain from drinking alcohol, and, in many, if not most cases, tested to make sure you don’t. The Michigan Secretary of State Administrative Hearing Section, or AHS (until recently known as the DAAD, and, not that long ago, the DLAD) takes the position that you cannot prove your abstinence is “voluntary” if you are under probation or parole order not to drink. This is called “living in a controlled environment” because you are under threat of punishment (i.e., getting locked up) if you’re caught drinking.
In the context of trying to win back your driver’s license, the clock really starts running once your probation or parole ends. Everyone, of course, wants to know exactly how soon he or she can file a license appeal. There is no clear answer here. Instead, we come to the dreaded lawyer response; “It depends.” I have taken and won cases for someone who has only very recently been released from probation, and I’ve had cases where I have wanted to wait more than 6 months after my client has been released from probation or parole before filing, so that by the time my client and I are in front of the hearing officer, he or she will have nearly a year of demonstrably voluntary abstinence to show.
When someone calls my office, we not only answer his or her questions, we ask a lot of our own, as well. My paralegal and my senior assistant have worked on more license restoration cases than a whole boatload of lawyers, so they know what to look for as we screen a person. And given that I’m on the line because I guarantee a win in every case I take, we’ll never just give someone the go-ahead to file who isn’t really ready. If we find a person needs a little more time, we’ll tell him or her how long we feel he or she should wait.
Of all the questions about this subject, the most forceful come from those people who have, despite being on probation, really put in all of their hearts to get and stay sober. In many cases, a person’s life has changed so dramatically since that last DUI that being on probation has nothing to do with him or her not drinking. This is where the “it depends” comes into play, and where we’ll have a lot of questions. Most folks don’t want to wait any longer than they have to in order to get back on the road (although some people do wait years and years), and if I’m going to be the lawyer, I don’t get paid until we get started, so I have no incentive to wait longer than necessary either. However, as I noted, my services come with a guarantee, so I have the counterbalancing consideration of not wanting to begin to early, lest I find myself having to do a “warranty” appeal a year later because we fired too soon. In truth, my guarantee means I try and strike for the perfect balance between beginning the license restoration process as soon as possible without waiting too long.
Yet for all of this, the answer to “when” still comes down to “it depends,” and that line moves from case to case. In general, a person with 7 DUI’s will definitely need to demonstrate more voluntary abstinence time than someone with just 2 or 3, but we could speculate about countless situations that could prove to be exceptions even to this. As it stands, however, you must be off of probation or parole to begin the license appeal process, and you’ll want a certain, if undefined, quantity of voluntary abstinence time to your credit before you find yourself sitting in a license appeal hearing.