Michigan Criminal Defense Lawyer Blog
As Michigan driver’s license restoration lawyers, we carefully screen potential clients to make sure that we can win their cases while also ensuring that the information we present is both accurate and honest. Even though my team and I handle over 200 license appeal matters each year (more than any firm I know), we are still just one spoke in a much larger wheel. The Michigan Secretary of State Hearing officers who decide these cases easily handle over more than 7 times as many cases than we do, and in that capacity, they have quite literally “heard it all” many times over.
Unfortunately, a lot of what is presented in license restoration or clearance appeal hearings is misguided at best, and, at worst, outright BS. Thankfully, our firm does so such thing, but lawyers who don’t concentrate in these cases and people trying to do this on their own don’t really know the driver’s license rules, and are therefore often take what amounts to a “shot in the dark.” Ultimately, driver’ license appeal cases are decided based upon the the law and the evidence presented. This means a person who might otherwise be qualified to win can lose his or her case if the evidence they present doesn’t meet the legally required burden of proof.
That’s a cold reality, but it’s also what a lot of people find out the hard way after having tried some “do-it-yourself” appeal, or otherwise having hired some lawyer whose practice doesn’t specifically focus upon driver’s license restoration cases. Regrettably, the license appeal process gets clogged up with people who simply don’t understand (or don’t care) that genuine sobriety is THE foundational requirement to win. This is the kind of stuff that the hearing officers have to slog through each and every day.
Not surprisingly, most people get motivated to pursue a license appeal by their need to drive. What they overlook, though, is the fact that the driver’s license restoration process has absolutely NOTHING to do with a person’s need to drive, but instead focuses solely on his or her relationship to alcohol.
In Michigan, once a person has racked up 2 DUI’s within 7 years, or 3 DUI’s within 10 years, he or she is legally categorized as a “habitual alcohol offender.” This designation means the person is presumed to have some kind of drinking problem.
It’s important to understand that the law doesn’t try to define that problem; it simply recognizes that the person has demonstrated him or her self to be a risk – particularly a risk on the road – after drinking.
Thus, in the context of a Michigan Secretary of State license appeal, it doesn’t matter how often or how much the person does (or does not) drink. Instead, the more important consideration is that when that person does drink, he or she presents a risk, at least as it relates to driving – and that’s a problem.
The driver’s license rules specify when and how a person who has had his or her license revoked for multiple DUI’s can get it back. In many of my other articles in the Driver’s License Restoration section of this blog, I examine the main rule governing license appeal in varying degrees of detail. Here, we’ll turn our attention to the opening words (I will “translate” immediately below the reprinted passage):
The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:
(i) That the petitioner’s alcohol or substance abuse problems, if any, are under control and likely to remain under control.
The plain-English “translation” of this lead us to 3 key points about a license restoration or clearance case:
1. The hearing officer is instructed to NOT grant the appeal unless the person who files it proves his or her case by “clear and convincing evidence.”
This is subtle, but the language here matters. The rule could have said the the hearing officer may or shall grant an appeal if the person proves his or her case, but instead, it begins with a negative mandate that requires the hearing officer to NOT grant it unless the person’s evidence meet that “clear and convincing” standard.
2. A person must prove (by “clear and convincing evidence”) that his or her alcohol and/or substance abuse problem is “under control.”
Remember, the law presumes that anyone who has racked up multiple DUI’s does, in fact, have some kind of problem with alcohol. “Under control” means that the person has not consumed any alcohol whatsoever for a legally sufficient period of time. Although the precise amount of time required can vary from case to case, our office will almost never proceed with a case unless the person has been alcohol and drug-free for at least 18 months.
3. In addition to proving that one has not had a drink for that legally sufficient period of time, a person filing a license appeal must also prove that his or her alcohol problem is “likely to reman under control.”
This is really what I call the “main thing” or the “meat and potatoes” of a restoration case, and essentially requires a person to clearly demonstrate that he or she has both the ability and the commitment to remain alcohol-free, or, to put it another way, the he or she is a safe bet to never drink again.
Accordingly, the formula for winning a license appeal is really about convincing a hearing officer who is required to be skeptical that the person has honestly quit drinking, meaning that he or she hasn’t had a drink for a long enough period of time and is likely to never consume alcohol again.
The rules also forbid any use of recreational marijuana, as well. This gets missed a lot, but the whole idea of remaining sober means remaining free of any and all mind or mood-altering substances.
It’s important to note that there is nothing in the law about “needing” a license. The point of the license appeal process is to keep anyone convicted of multiple DUI’s off the road until he or she can show themselves to not be any kind of risk to ever drink and drive again, or even use marijuana.
Under the law, complete abstinence from alcohol (and drugs) is required to even have a chance to win a license appeal.
Whatever else, it is beyond dispute that people who do not drink are exactly ZERO RISK to ever drink and drive.
Accordingly, the only people who can win a Michigan driver’s license restoration or clearance case are this who can prove they have quit drinking for good.
This is the real focal point of a license appeal case. When everything is boiled down to essentials, this is what the substance use evaluation and letters of support and other documentation all must show – that a person has been alcohol-free long enough, and has the wherewithal to never drink again.
Ever.
Despite the clarity of this, however, the hearing officers dutifully show up each day, only to hear from loads of people who simply don’t get it, and who ignore all of that and go straight into trying to explain how much they “need” a license.
As one hearing officer says, “everybody needs a license.”
That, however, has absolutely nothing to do with a person being able to win it back.
I can’t imagine having to maintain a straight face while someone – either with or without a lawyer – comes in for a hearing and presents evidence about how much they need to drive, and then goes on and on about everything EXCEPT the key issues that we outlined above regarding abstinence and a commitment to never drink again.
Yet the hearing officers do just that, and then politely make their own inquiries to determine if, in fact, the person even acknowledges that he or she has some kind of alcohol problem, and, if so, whether they can prove that it’s both under control and likely to remain under control.
Of course, a hearing officer can always be a pleasantly surprised to find someone who otherwise doesn’t appear to actually does get it, but that probably doesn’t happen when someone files a license appeal without realizing that his or her sobriety is the main issue.
And this isn’t the half of it, either. Despite the explicit requirements of the law, plenty of people will show up for a license appeal hearing and try to explain that even though they have multiple prior DUI convictions, they can and/or do still drink. They’ll say things like:
- Things are different now…
- I don’t drink like I used to…
- I would never drink and drive again!
- I only drink on special occasions…
- I only drink at home…
- I only have a glass of wine with dinner once in a while…
– or, they’ll be a bit more contentious, and insist:
- Drinking is LEGAL!
- This is a violation of my rights!
- You just want me to say that I’m some kind of alcoholic, and I’m not!
- I’m not a big drinker!
- I know other people who got their licenses back and they still drink!
– or, they’ll try to lay a guilt trip on the hearing officer:
How am I supposed to support my family?
How can I ever get a job?
I can’t even think about getting a better job if I can’t drive…
I can’t even drive to see my kids!
I can’t drive my kids anywhere!
Given that the absolute key to winning a license appeal is proving that one’s alcohol problem is “under control” and “likely to remain under control,” how are any of the above arguments relevant to that?
The answer, of course, is that they’re not.
And if that’s not enough, beyond all of the above, the hearing officers meet plenty of people who DO know that sobriety is the key to winning a license appeal, but who, even though they haven’t totally quit drinking, will say they have.
In a very real way, the hearing officers are paid to get lied to.
For everything there is to be said about sobriety, it is very hard to fake, at least if one knows anything about real sobriety.
Remember, just having quit drinking isn’t enough to win a license restoration case. A person must also prove that he or she is a safe bet to never drink again, and that requires demonstrating a firm commitment to remain sober for life from all substances, including recreational marijuana.
To do that, a person has to show how he or she has transitioned from being a drinker to a non-drinker, and has adopted a sober lifestyle.
This is something important to our firm, and one of the key reasons why we can seem “tough” as we screen our potential clients. We know that the hearing officers are going to go hard and dig deep to make sure anyone filing a license appeal really is sober, so we do our part to make sure that our clients have what it takes to actually win a license appeal.
Although we guarantee to win every driver’s license restoration or clearance appeal case we take, my team and I have NO interest whatsoever in being part of anyone trying to BS their way through the process. We only take cases for people who are genuinely sober.
The hearing officers, by contrast, don’t get that luxury, and they have to listen to all the stuff listed above, and a lot more, as well.
Consequently, the day-to-day experience of a hearing officer inevitably makes him or her better at screening out BS, and, probably, a bit more skeptical of everything they hear.
Remember, the law basically instructs the hearing officers to be skeptical as a starting point by mandating that he or she NOT grant a license appeal until a person proves his or her sobriety by clear and convincing evidence.
Over the course of a few months, a hearing officer will decide hundreds of cases. Over the span of a year, that number will likely exceed 1000. By the time a hearing officer has a few years under his or her belt, he or she has sat though thousands of cases, and, as a result, has “heard it all.”
By the time that length of that experience grows into decades, they’ve probably seen and heard it all hundreds of times over.
As a result, they develop a keen sense for and ability to find real sobriety.
If you are looking for a lawyer to win back your Michigan driver’s license, or to obtain the clearance of a Michigan hold on your driving record so that you can get a license in another state, be a good consumer and look around. See how the various lawyers explain the license appeal process, and how they explain the way they do things.
When you’ve done enough of that, start checking around. You can learn a lot by actually speaking to a live person.
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 either 248-986-9700 or 586-465-1980.