Michigan Criminal Defense Lawyer Blog
I have written rather extensively about the need to be eligible to file for and then win a Michigan driver’s license restoration or clearance appeal. In this article, I want to begin with an example of how a little-known facet of the license reinstatement process demonstrates a much larger, very important point: There are loads of little things that you will never understand by just learning the rules governing license appeal cases. Of course, your mandatory revocation period must pass before you can begin the license appeal process. Beyond that, the primary rule governing license appeals speaks of either 6 or 12 months abstinence as a pre-condition to win back your license, but that is only half the story. I recently wrote an article explaining that you must be off of probation to win a restoration appeal. The Michigan Secretary of State’s Administrative Hearing Section (known as the AHS, and until recently the DAAD, and not that long ago, the DLAD) holds that anyone on probation or parole is living in what it considers a “controlled environment” because he or she is under orders to not drink, and therefore cannot really prove that such abstinence is voluntary. In the real world, this all boils down to mean that you need to prove more than a year of abstinence (I generally prefer to start with at least a year and a half), with a decent sized portion of that having accrued after your probation ended. You’ll never get this just by reading the rules.
The point I want to make is that even if you are a lawyer and memorize all the license appeal rules, you wouldn’t know about the “controlled environment” holding unless you spend your time slogging through the trenches of the license appeal world and all the court decisions that interpret the application of those rules. The whole concept of a “controlled environment” is not in the rules, but rather part and parcel of how they are applied and interpreted. This is precisely why so many “do-it-yourself” appeals to lose, and why it’s hard even for a lawyer, unless he or she concentrates in this rather niche field, to win these cases. It’s usually what you don’t know that will trip you up in license restoration cases. No matter how long you’ve been sober, there is a specific process to follow here. You need to know exactly what to prove and how to prove it, and that can only be learned through extensive trial and error.
I know a lot about license appeals, but to be perfectly honest, almost all of it was learned the hard way. The good news is that there came a point many years ago when I realized that I knew enough to know when I don’t know something, and to be able to assess a case and, if I accept it, guarantee that I will win it. Yet there is no denying that I had to earn – and learn – my way to that point. The problem for anyone who tries and loses a license appeal is that whatever you missed, and no matter how sure you feel you’ll get it right next time, that next time cannot happen for another whole year. Sure, some people do get lucky and win, but most do-it-yourselfers do not. A person can only file 1 driver’s license restoration or clearance appeal per year in Michigan, so losing means bumming rides for another 12 months…
Several times each week, I get calls or emails from someone who has tried to win his or her own license back and (obviously) lost. The day before this article was written, I received the following email (reprinted exactly as it was received): “I just received back a Administrative review I filed in April and it was denied. I hope you can help me out? It has been 11 years since I’ve lived there.” Undoubtedly, this person has read just enough about license appeals and clearances to know that he can come back to Michigan and have a hearing on his recently denied “appeal by mail.” The problem is that he cannot schedule a hearing and introduce any new evidence. He doesn’t get a “re-do.” That means the exact substance abuse evaluation he submitted, along with the exact letters of support accompanied it are the only things that can be reviewed at any “appeal” hearing, until he can file a new one until next year. It is almost certain that he was denied for a problem or problems with one or both of those things, but in an appeal from a previously denied administrative review, a person cannot bring in new information, either through his or her substance abuse evaluation, letters, or testimony to clarify or fix whatever deficiency was originally found within them, so the idea of coming back for such a hearing amounts to nothing more than throwing good money after bad. To put this another way, if this person was to show up at a hearing, the only question the hearing officer has is “where do you think we got it wrong based upon the evidence you submitted?” Even if an otherwise good support letter was sent in without a notarization, and therefore not counted, there is no way to re-submit the same letter even if has subsequently been properly notarized. That’s considered “new’ evidence.
And while it’s bad enough that the evidence submitted in any losing appeal wasn’t good enough to win the first time, an even bigger problem is that it doesn’t just go away, either. Thus, any concerns about or defects in the evaluation or the letters of support that caused the first case to lose will have to be addressed and fixed next time. And to make matters worse, some things are much harder to fix than others. A good letter without a proper notarization can be notarized next year; that’s easy. A bad letter that casts doubt upon some aspect of the person’s sobriety, or length of it, has to be explained, and then fixed – if possible. This means, then, that the evidence next year must completely take into account the evidence from last year. And while there are certain things that cannot be fixed at all, I seldom find things to be that bad. The larger point here is that a person can dig a pretty deep hole for him or herself. This is kind of like adding insult to injury, but is a very real by-product of trying a license appeal on your own, or with some lawyer who lacks sufficient experience with them.
A lot of people complain about the seeming unfairness of the whole license appeal process without understanding the depth or scope of all this. Each year, plenty of genuinely sober people have their appeals denied; I know, because a lot of the clients I have are people who have tried before and lost, and then come to me for my help (I’m sure the fact that I guarantee to win every case I take helps). There is one small catch, however, that most everyone misses, and that explains why things are the way they are. Remember that we talked about how memorizing the rules isn’t even enough to win? Well, because these rules are legal in nature, words are important, as is their arrangement. Specifically, just about everyone overlooks the opening sentence of rule 13, the main rule governing license appeals: “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 (emphasis added)…” If you take your time and read it over a few times, you’ll see that the rule sets out a negative mandate; it admonishes the hearing officer that he or she “shall not” issue a driver’s license unless the person filing the appeal proves certain things by “clear and convincing evidence.” To put it another way, the hearing officer is told to deny the appeal unless certain things are proven by what the law calls, “clear and convincing evidence.”
I’ve examined the “clear and convincing evidence” standard of proof in a very recent article. Here, we just need to focus on context, and not specifics. The cold, hard truth is that most people who have a drinking problem don’t get and stay sober. In fact, study after study has shown that less than 1 out of 10 will manage any kind of long-term abstinence. Moreover (and here’s another example where knowledge of the rules isn’t quite enough), the state presumes that anyone who has lost his or her license after 2 or more DUI’s has an alcohol problem. You’re kidding yourself, therefore, if you think, even for a minute, that when someone files a license appeal, the Secretary of State is going to waste any time on a threshold inquiry of whether he or she has an alcohol problem or not. The whole reason anyone is in a position to undertake a driver’s license restoration appeal in the first place is because his or her relationship to alcohol has led to 2 (or more) DUI’s. Accordingly, the Secretary of State’s real interest is whether the person has quit drinking, whether or not he or she has been alcohol-free long enough (in the real world, you want at least a year and a half, and at least 6 months of that time since probation has ended), and, most important, whether or not the person has the commitment and the tools to stay sober (meaning COMPLETELY alcohol free) for life. The existence of a drinking “problem” is a given.
Now, in reading the rules, one discovers that he or she has to prove that his or her alcohol problem, if any, is both “under control,” and “likely to remain under control.” You don’t have to spend much time in the world of license appeals to learn what that means, but the point I’m making is that for anyone who is new to this, who has not spent time in, around and doing license appeals, the rules don’t even tell half the story. As we’ve seen, there is no “if any” question about whether a person filing a license appeal has an alcohol problem or not. As we’ve also seen, if you’ve had your license yanked for multiple DUI’s, it is presumed that your relationship to alcohol is problematic, if only in the sense that it is unacceptably risky, so the only way you’re going to win your license back is to show that you and alcohol now exist in entirely different galaxies. Having your problem “under control” does NOT mean that you can control your drinking. Instead, it means that you fundamentally understand that you cannot and can never “control” your drinking, and that you realize the only way for you to have any control over your relationship with alcohol is to NOT drink. Proving that your problem is “likely to remain under control” has nothing to do with showing that you’re likely to never drink and drive again, but rather requires that you show you are a safe bet to never so much as take another sip of alcohol again, and therefore, by default, present no risk to drive after drinking.
And while I think I’ve made my point, let’s reiterate one last time: You can’t get this stuff from reading, learning, or even memorizing the rules. This is why any “do-it-yourself” appeal is doomed to lose, unless you get lucky. This isn’t home improvement. And this is also why you may just as quickly run into trouble with a lawyer who does not concentrate his or her practice in license restoration cases. You don’t hire a painter to do the plumbing, and you don’t hire a handyman to run electrical service to and through your house.
So, for that bit of sage advice, or at least corny wisdom, that you expect to end an article such as this? Do your homework. When you undertake something as important as hiring a lawyer to do your license appeal, read as much as you can. You also need to pick up the phone and call. If the person answering your call cannot give you helpful and relevant information the moment you call, you are probably calling an operation that just “does” license appeals, rather than concentrates in them no matter what the name of the website. Always remember that whoever answers your call is not only the director of first impressions, but also the person who should be able to help you out with specific answers – or not – right when they pick up the phone. You shouldn’t need much more of a pep talk on this score; simply be a good consumer.
For my part, I guarantee to win your case if you become my client. You must be genuinely sober before I’ll take your case, but if you have honestly quit drinking, then you’ll only pay me once to win back your license and get back on the road. I win my cases the first time around, because I make my money doing it right the first time, not by having to come back next year to do “warranty work.” When you’re ready to start this process, call my office and see how your questions and concerns are answered. You’ll be glad you did.