Michigan Criminal Defense Lawyer Blog
When you lose a Michigan driver’s license restoration case, it’s not because you did everything right. A fairly decent-sized chunk of my license appeal client base is made up of people who have previously tried and lost a license appeal, either on their own, or with some lawyer who does not concentrate in this field. While I’m certainly the guy to come to when you’re serious about getting back on the road (I guarantee to win every case I take), a very important part of what I have to do in these cases is fix what went wrong in the last case. Sometimes, this can be a real challenge, like when a person doesn’t list something like a previous drug crime, admits to using drugs that weren’t disclosed in the papers they filed, or admits, during their hearing, to a different “last use” date of alcohol or drugs than was listed on his or her substance abuse evaluation. These are just 3 of an almost infinite number of things that can go wrong, and one could spend forever trying to list them all. The purpose of this article is to examine what I have to do to fix things when a client comes to me after something has gone wrong and caused him or her to lose a prior license appeal filed with the Michigan Secretary of State’s Administrative Hearing Section (AHS).
In the previous article on this blog, I extolled the value of silence in criminal and DUI cases, and I went on to mention that in any legal proceeding, including driver’s license restoration hearings, one should never say anything beyond simply answering the question that has been asked. In so many of the lost cases people bring to my office, it is clear that the person volunteered information that went beyond what was asked in the hearing. Answering more than what was asked never helps. Ever. But that’s hardly the inventory of things that typically go wrong in a license appeal case, and the larger point is that many of the things that are wrong enough to derail appeal the first time around will need to be fixed the next time around. Sure, if a person who is genuinely sober merely files his or her case too soon, then there’s nothing to fix except to wait until the proper time to try again. Those kinds of mistakes, however, are less common than those involving problems with the substance abuse evaluation, letters of support, or things said at the hearing. And of course, 2 the biggest mistakes of all are to either to call a witness at a hearing and/or hold a video hearing instead of doing it live.
It may sound obvious, but the first thing I need to do when I meet with someone who has previously tried and lost a license appeal is to find out precisely (emphasis here on precisely) why they lost. Most people only have a general understanding, at best, of the reasons for the denial of their license reinstatement appeal. Once in a while I’ll meet with a client who has gone over everything with a fine-toothed comb and written all over the margins of their order, but even then, the old adage “a little knowledge is a dangerous thing” applies. Even if a person knows that the prognosis of his or her evaluation wasn’t favorable enough, it is unlikely that he or she knows (or knew, until now) that a prognosis of poor, guarded or fair legally requires that an appeal be denied, or that a prognosis of “excellent” can do more harm than good. I need to see specifically what the hearing officer cited as the reason or reasons for his or her decision. Sometimes a person won’t even have his or her prior denials, so I will have to formally request microfilm copies of the documentary evidence a person submitted for any prior appeals and the accompanying order(s) of denial.
One of the more unique aspects (that’s putting it nicely) of my job is that people sometimes get mad at their prior lawyer as I explain why their old case was denied. I’ve had plenty of people become upset and ask me, in a slightly angry tone, “Shouldn’t my lawyer have known that?!?” What am I supposed to say? “Yes,” I’ll reply, but then also remind them that I’m being brought in to fix the errors of my predecessor. Still, I can sense that some people, as a result of such experiences, begin to see all lawyers as the same, and are naturally tentative. Although I don’t want to turn this article into a platform to heap praise upon myself, it is worth noting that if you’re reading this, you’re already doing more research than anyone probably did who hired a lawyer for a prior, unsuccessful appeal. There is really a very small number of lawyers who concentrate in license restoration and clearance cases, and they certainly aren’t amongst those law outfits you discover operate all kinds of different practice areas. If you set out to learn who’s who, and you take the time to look for genuinely informative content, then you should be able to pare things down pretty quickly (you may just stop here; that’s alright by me!). The point here is that most of the people who hire a lawyer for a license appeal and then lose pretty obviously hired the wrong lawyer and can’t say they put a ton of time into researching that decision.
Yet my mom always used to tell me that “Hindsight is 20-20.” Anyone who has blundered through a losing license case has learned this the hard way. If you haven’t yet filed your case, then take your time, read my articles, and avoid these fatal mistakes before they occur. Still, it is that same kind of hindsight that I need when someone comes into my office after having tried unsuccessfully to win his or her license back. As far as those who’ve tried a “do-it-yourself” license appeal, the inquiry becomes more about finding all of the mistakes they made, as there are usually plenty, and then prioritizing which figured more prominently in their denials.
After identifying the mistakes that caused a person to lose, I then have to figure out how to fix them. This can involve all kinds of things. It can mean obtaining a corrective letter from someone who previously wrote a letter of support, or it can mean having my substance abuse evaluator really examine and/or clarify something the hearing officer pointed out amongst his or her reasons for denying that previous case. Of the things I do wind up fixing, the most challenging is live witness testimony from a prior hearing. I cannot emphasize enough what an absolute, 100% mistake it is to call a witness. Sure, it requires less effort of the lawyer than to read and suggest corrections to a more comprehensive evidentiary letter, but that’s just laziness. Even in cases where a witness doesn’t screw things up, it’s still a mistake to take that kind of shortcut and invite such risk. When a witness says something, it is a matter of record forever, meaning it never goes away.
Let’s use a fairly simple example. Assume that at the license restoration hearing for Dan the driver, his wife, Nervous Nellie, is called as a witness. After being sworn in, she has the following exchange with the hearing officer:
Hearing officer: How long have you been married to Dan?
Nervous Nellie: 10 years. It will be 11 this October.
Hearing officer: How long did you know him before that?
Nervous Nellie: About 2 years.
Hearing officer: So you’ve been together for over 12 years, almost 13?
Nervous Nellie: Yes.
Hearing officer: Do you know when your husband stopped using marijuana?
Nervous Nellie: Marijuana? I, uh, I don’t think he ever used marijuana. If he did, it was before he met me.
Hearing officer: According to your husband’s substance abuse evaluation, his last use of marijuana was in 2009, about 8 years ago. He told the evaluator that he had used marijuana occasionally, maybe once or twice a month, for about 15 years before that. You didn’t know about that?
Nervous Nellie: Well, I mean, no. I never saw him use marijuana. I don’t use it; I mean…
Hearing officer: So he never told you about this?
Nervous Nellie: No; I mean, I don’t remember him saying anything to me, and I never saw him do it, you know…
Hearing officer: Then why would he tell the evaluator his last use was in 2009 if he wasn’t using marijuana? Does your husband just make things up?
Nervous Nellie: Well, no…
Hearing officer: What else hasn’t your husband told you, ma’am? If you didn’t know he was using marijuana for the first 5 years of your relationship, how do I know that you really know what’s going on with him…?
Okay, you get the idea. The wife has just been trashed as a witness. This kind of thing can happen very easily, and happens often enough when some amateur calls a witness. And while that won’t happen if I’m your lawyer, we’re stuck with it if I didn’t handle your case the first time around. How do I fix this? The easy answer is that I just do, but the truth is that we’ll have to do that in the larger context or your whole appeal, the facts of your case, and by clearing the air and getting the truth out, whatever that may be. Perhaps Dan never did tell his wife he was smoking a little weed, or perhaps she just forgot and then froze when asked about it at the hearing. Either way, it’s a problem now, and it will not go away until it is successfully addressed.
Probably the worst thing a person can do is to just bumble into yet another hearing without specifically addressing the problems that caused his or her prior case to lose. Even if the new appeal hits all the right marks, the evidence presented must also clarify those specific issues that were cited by the hearing officer in that prior denial. And it goes without saying that if you haven’t filed and lost already, then hire the right lawyer to do it right the first time and avoid another year without driving and big headache the next time around.
For my part, I’m here to help. No matter where in the world you live, if you need to win back your Michigan driver’s license, or you need a clearance of the Michigan hold on your driving record, I can do that. I guarantee to win every case I take, but, and this is important, I ONLY take cases for people who have honestly stopped drinking. To find out more, call my office anytime, Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST) at 586-465-1980.