Michigan Criminal Defense Lawyer Blog
As a Michigan driver’s license restoration lawyer, I receive a lot of calls from people who need to win back their license. In a very recent article, I examined how simply “needing” a license doesn’t matter. I pointed out that a person must first be eligible to file for a license appeal. In this article, I want to examine that subject a little closer, and focus on the difference between being legally eligible to file an appeal and having a real chance to win, because a person can be legally eligible to file for reinstatement of his or her license while not being anywhere near able to actually win it back. To get an idea of what I mean and and how the precise written rule can differ from its legal interpretation, consider that Michigan’s DUI (drunk driving) law prohibits a person from operating (which you’d suppose means driving) a motor vehicle while intoxicated or over the limit. Yet through the years, the courts have interpreted (a term I use loosely because it can defy common sense and logic) the term “operating” to mean not only driving a vehicle, but also to include merely sitting in it, parked, with the engine running, and have even taken that further, to mean sitting in the car, even if it is not running, with the keys in the ignition. And while I disagree with lots of these “interpretations,” people hire me with the assumption that I know this stuff and know how to work around it, not crash directly into it.
So it goes with license appeals. A person may be legally eligible to file a license appeal but stand a million miles from having any chance to win it. Under the main written rules governing license appeals, a person must wait until his or her revocation period (1 year for 2 DUI’s within a 7-year period, and 5 years for 3 DUI’s within a 10-year period) has passed before filing for restoration of his or her driver’s license. Realistically, that should be it, right? You wait your time and then you can file. Unfortunately, that’s not how it works. Within the sub-rules, there are provisions that require a person to prove that he or she has been completely abstinent from alcohol for at least 6 months, and another that requires a person, under certain (meaning most) circumstances to have at least 12 months of abstinence. But hold on; there’s more: Under other (rather common) circumstances, and despite being legally eligible to file an appeal and despite having 12 months of abstinence, the rules also permit the hearing officer to require a longer period than just the 12 months; but there’s still more –
Court interpretations of the rules have gone on to further distinguish simple abstinence from what is termed “voluntary abstinence.” This means that the year you spend on probation, not drinking, usually doesn’t count, simply because you were on probation, were under an order to not drink, and subject to being punished if you did. This way of thinking (which is the law, as it stands now) holds that you cannot prove that you were “voluntarily” abstinent from alcohol while on probation. In the real world, this means that a person who was on probation for 18 months for his or her 2nd DUI, and who, according to the rules, was eligible to file a license appeal after 1 year, may not have any kind of chance to win back his or her license for the better part of 3 whole years. This is the kind of stuff you need to know before you go plowing ahead with a license restoration case that’s doomed before you even start, just because you’re legally eligible…
So let’s move to the premise of this article: When you can, versus when you should, file a license appeal. Legal eligibility is quite clear and simple: There is a 1-year revocation for 2 DUI’s within a 7-year period, and a 5-year revocation for 3 DUI’s within a 10-year period. Beyond that, any driving convictions at all will result in what the Michigan Secretary of State (SOS) calls a “mandatory like” additional revocation. This means that if you’re license was revoked for 5 years, and even if it has been 7 years and you have been legally eligible for 2 years, if you get caught driving, once the SOS finds out about it, you will get another 5-year (a “like additional” period) revocation slapped on to your driving record.
In my office, if a person has any questions about his or her eligibility, I’ll have him or her send me a copy of their driving record and look it over (for free, obviously) to determine their precise eligibility. For all the talking and wondering a person can do, a quick look at the driving record settles any and all questions of eligibility. Being legally eligible, however, is just the start. Once you can file, the question becomes whether or not (or really, when) you should file. That determination is somewhat less precise than the dates printed on a driving record.
As a practical matter, you can forget any chance of winning your license back with less than 1 year of abstinence. In fact, I generally won’t even consider filing an appeal until I know that my client will have at least 2 years of clean time before we’re sitting in front of a hearing officer. I will also want at least 6 months of that to be “voluntary,” meaning that a person will need to have been off probation for that half year. I often want more time than that, and usually prefer that someone have at least 3 years of sobriety and that he or she has been off of probation for at least a year by the time we get in front of the hearing officer. More time that that is usually not necessary, but never hurts.
And that’s still not it. Prior periods of abstinence matter. A person who is clean for 3 years, but accumulated 2 years of sobriety in the past and then had a relapse is likely to be seen as risky. Ditto for a person who had something like 7 years of clean time in the past, but is now working on 4. Also, the SOS is leery of anyone who looks like a “serial relapser.” In some cases, time spent in counseling or AA can matter, especially when a person has a shorter period of sobriety to his or her credit. You can take these and about a million other issues and add them to the stew that makes up a license appeal. In that sense, I become kind of like a chef, sampling the product to know if it’s ready to be served. In a license appeal case, however, you don’t just lose and get to try again right away. If you lose, you have to wait a full year to try again and you have to fix the problems that caused you to lose in the first place (those become a matter of record) so a good decision to wait a few months will always beat a poor decision to push forward and lose for a whole year, plus.
As we close, it’s fair to say that we’ve seen how determining legal eligibility to file a driver’s license restoration case is rather simple, whereas determining the likelihood of actually winning involves far more variables and must be gauged on a case-by-case basis. An important part of what I do is to provide a guarantee to win every case I take. This aligns my interests with those of my client; I don’t want to wait any longer than necessary to move forward (and get paid), yet I have no interest in jumping too soon, only to lose and then have to do it all over again (for free). Above and beyond these considerations, I bring a genuine love for what I do to the table. I don’t have a series of different practices and websites. As a lawyer, I’m like a Q-tip, with one end of the stick being license appeal cases, and the other DUI cases, and alcohol being the stick that connects them both. License appeals are all about proving sobriety, and while the “proving” part of that is the lawyer’s realm, the “sobriety” part of it, in the clinical sense, is why I completed a post-graduate program of coursework in addiction studies. I understand sobriety from the inside out and from the outside in. A chef can look at a written recipe and nod in approval, but the real proof, as they say, is in the pudding. Beyond everything else, I just “know” when to move forward with a license appeal. Given the competing considerations (having to bum rides versus being able to drive) between waiting too long, waiting the right amount of time, and waiting longer than necessary, that’s precisely the knowledge you need to get back on the road as soon as possible.
If you have genuinely quit drinking, I can get you back on the road. Maybe you already know that you’re eligible to file a license appeal, or maybe you’re not quite sure if you’re either legally or practically eligible. I can help with that. My office is open Monday through Friday, from 8:30 a.m. until 5:00 p.m. and can be reached at 596-465-1980. When you’re ready, read everything you can, call around, and make sure that as part of your inquiries, you call my office, as well. We’re here to help.