Michigan Criminal Defense Lawyer Blog
In a recent article about driver’s license restoration appeal hearings, I mentioned that I never call witnesses. It has been a while since I’ve addressed that topic, and my experience at a hearing the day before writing this article has convinced me that it’s time to revisit this subject. Let’s start with the conclusion first, and then we’ll get into the analysis: It is a mistake to call a witness at a DAAD (Michigan Secretary of State Driver Assessment and Appeal Division) license reinstatement hearing. And to be clearer still, when I say it “is” a mistake, I’m still waiting for an exception that I have never yet seen in my 24-plus years as a lawyer. In my mind, calling a witness is an amateur blunder of the highest order.
Yesterday, I represented someone who had a different lawyer at a previous hearing. That lawyer had called a witness, things went bad, and the appeal was denied. My client not only agreed with my assessment that witnesses are nothing but a liability, but also got a bit angry with the previous lawyer for not knowing that. When someone who has lost a prior license restoration case with a different lawyer comes to hire me for his or her next time around and I begin to read the order denying the previous case, I cannot help but cringe when I see someone’s name listed as a witness. I’ve never seen a witness listed on a winning decision, but I’ve seen plenty of them on denial letters.
In the most recent hearing article, I noted that while we all hope to learn from experience, there are some people who just do what they always do and don’t really pay attention to the subtle nuances, and therefore don’t learn anything. When I’m at the DAAD office and some lawyer steps out of a hearing and comes into the waiting room to fetch a witness, I just have to shake my head. The real point in the earlier article was that there are some things I do in my various cases that are almost a matter of instinct, and therefore somewhat difficult to explain, and there are others that involve my own proprietary (i.e. “secret”) methods. The reason calling witnesses is a bad idea is neither; instead, it’s so obvious that you’ve got to wonder about any lawyer who misses it.
Anything good that a witness can say in person, meaning anything that he or she can relate through testimony, can also be said just as clearly in a letter of support. Letters of support are worth exactly what they say. Unlike a live witness, the hearing officer cannot intimidate a letter of support. You cannot cross-examine or question a letter of support. A letter of support never gets nervous and says the “wrong” thing, nor does it get confused or forget details. This means that unlike witnesses, letters of support cannot screw things up, at least if the lawyer presenting it knows what he or she is doing, and I know well enough to guarantee I’ll win your license appeal if you’re really sober and I take your case.
Witnesses are not only capable of screwing things up, but present a big, fat, juicy opportunity for the hearing officer to derail a case. License appeal hearings are not warm and fuzzy, nor are they about butterflies and pretty flowers. The rule governing these proceedings clearly instructs the hearing officer to “…not order that a license be issued to the petitioner…” unless several specified issues are proven by “clear and convincing evidence.” This means that the hearing officer is kind of like the keeper of the gate, and isn’t supposed to grant an appeal if he or she can find any reason to deny it.
This is huge. The DAAD operates under the generally understood reality that the vast majority of people with an alcohol problem are not able to maintain any kind of long-term abstinence. If you’re in recovery, then surely you know that the numbers are stark: More than 9 out of 10 people who develop a drinking problem don’t get better. That means that if you look at a group of 100 alcoholics, less than 10 will ever get and stay sober. Is it any wonder why the DAAD is so tough? The DAAD knows those numbers apply to all of the repeat offense drunk drivers whose licenses they revoke. When you lose your license for a 2nd or 3rd offense DUI, you are categorized as a habitual offender. This is key, because it means that you are presumed, by law, to have an alcohol problem. The DAAD follows the law and that presumption that you have a drinking problem follows you right into the hearing room when you appeal to get your license back. This is why the bar is set so high in a license appeal. Beyond all that legal stuff, it is simply known that if you take any group of 100 “habitual offenders” who have had their licenses revoked for multiple DUI’s, less than 10 will ever become really and truly sober.
We also know, however, that just about all of them will say they are sober. They’ve quit drinking. Everything is okay now. The state places the hearing officer as the last line of defense to make sure no risky decisions are made. To win a license appeal, you need to show that you and alcohol are galaxies apart. The hearing officer has to critically examine everything. If he or she accepts the evidence presented in any case at face value, then just about everyone would get back on the road, even though statistics reliably bear out that less than 10% of those who lost their license as habitual offenders will ever really maintain sobriety.
That means that any witness who comes in will be questioned aggressively – very aggressively. The hearing officer isn’t going to just sit back and listen to the lawyer ask a few softball questions that verify that the petitioner (the person who is appealing) doesn’t drink anymore. It’s kind of ironic, but if you lost a prior appeal, and particularly if witness testimony was part of why your case tanked, then you get this. If you’ve never filed an appeal, then this may not make a lot of sense to you. Imagine a situation where a person is going to be considered for a new job, and can either bring a letter of recommendation to the interview, or bring the letter writer to be questioned by the prospective employer. Let’s also assume that the job is a high-paying, high profile position, and that there are a lot of very qualified candidates applying for the position, so the interview is going to be more tough than fluff.
Applicant #1 goes in for the interview with a solid letter of recommendation from his former employer. Applicant #2 brings the supervisor from her current job, who also happens to be her friend. After the supervisor gives a glowing recommendation of applicant #2, Mr. Thornapple, the crusty CEO of the big company conducting the interview, clears his throat and asks the supervisor/friend the following:
Thank you for that information. I have a few questions:
Has #2 ever come to work late?
I think only a few times, like when she was sick, or had a flat tire. She has been really good with attendance and punctuality.
Does she ever leave work early for anything like a doctor’s appointment or issues with her kids?
No more than anyone else.
I don’t know about anyone else. In our company, we actively discourage any outside activities or appointments during business hours. Again, my question, and it merely requires a yes or no answer: Does she ever leave work early for anything like a doctor’s appointment or issues with her kids?
Yes.
I see. Okay; does #2 ever use the phone at work for personal calls?
Not that I’m aware…
Well, why wouldn’t you be aware; you’re her supervisor, aren’t you? You’re telling me that you don’t think she has ever made a personal phone call on the company phone?
Well, yes, I mean, I’m sure she has.
And what is your company’s policy regarding that?
We don’t really have a policy, it’s kind of an honor system, and she has been a real good worker.
From what you’re telling me, your company doesn’t have a lot of policies in place, at least of the sort we have. Isn’t it true then that #2 isn’t closely monitored as far as her compliance with company policies?
I wouldn’t say that. I’d say she has been a good –
That’s not my question, ma’am. I’m asking if would agree or disagree that #2 has not been closely monitored regarding her compliance with company policies that you don’t seem to have. Has she, or has she not?
Well, not directly monitored, but as I was trying to say, she is a good –
Thank you. I get the picture. Now, in addition to being #2’s supervisor, you are also her friend, aren’t you?
Yes.
And you’d like to help her get this job I take it?
Well, yes. I mean I’m going to miss her, but this job pays a lot more than what our company offers, so yes.
How many sick days did #2 take in the last year?
I’m not sure.
Did you bring her personnel file with you?
No.
Why not?
I didn’t know that I was supposed to bring it.
Well, did you at least look over #2’s file before you came today?
No, not really.
What do you mean by not really?
I’m familiar with it, but I didn’t “study” it to get ready for today, or anything like that.
Has #2 ever been reprimanded?
I think she may have been, but that was a long time ago.
You’re her supervisor, and you’re not sure? You just said you’re familiar with her file, now you suddenly aren’t that familiar. I’ll ask again: Has #2 ever been reprimanded at your place of work?
Yes, I believe so, but it was a long time ago.
What do you mean by a long time ago? What was she reprimanded for?
Well, it was just after she came to work for us about 6 years ago, and she had a complaint from a customer when she was still new.
Okay; tell me exactly what you know about her being reprimanded after a complaint from a customer…
You can see how much better it would have been if #2 had just brought in a letter of recommendation. The letter could have covered all the good points about her work performance, and there would have been no “cross-examination” of the reference person. In a license appeal, this kind of questioning of the witness by the hearing officer is about a million times longer and tougher. If you bring a witness, he or she is going to be asked how well they know your other friends, if those friends drink, if they ever drink around you, the last time you drank (how many people really know another person’s sobriety date, and doesn’t it even seem “fake” if they do?), and all kinds of other probing questions about your recovery.
If it seems like these questions are aimed at getting your appeal denied, then you’re getting the idea, because THIS IS EXACTLY WHAT IT IS!!!
In terms of work time for me, it would be a heck of a lot easier to just bring in witnesses, shake their hands and give each a 5-minute pep talk. Instead, I labor over the letters of support. I make sure that the letter writers are able to address the key issues in a license appeal in general, and any particular issues specific to your case. There are no “questions” that can be asked of a letter; it says what it says – no more and no less. Witnesses, on the other hand, get put on the spot, get nervous, and, worst of all, when they’re in the hot seat and they get all freaked out, they try to help, which means they say things with the intent of helping that actually do the opposite. Perhaps the reader has heard the legal adage that a lawyer should never ask a question for which he or she does not already know the answer. That is basic, fundamental, and unquestionably true. So why then, would a lawyer offer a witness in place of a letter? As I noted before, in a license appeal, this is an amateur mistake of the biggest sort.
Accordingly, we come back to the point that anyone who has lost a license appeal and had a witness be any part of the reason for that loss knows that calling a witness is a bad idea. If you haven’t yet filed an appeal, and even if you’re intent to try it on your own, or you hire some other lawyer, you can take this to the bank: It is a mistake to call a witness. There is no case than could not be won unless you call a witness, but there are plenty that are lost for just that reason.
Proceed accordingly.