Michigan Criminal Defense Lawyer Blog
The best way for someone who lives out of state to remove a Michigan Secretary of State hold on his or her driving record is to come back and do it in person. My office handles about 200 license appeal cases every year, and more than 1/3 of them are clearance cases for people who have moved out of state. Part of the reason we guarantee to win every case we take is that we require our out-of-state clients to come back, in order to do this right. The alternative to coming back is an “administrative review,” which is an appeal by mail where, instead of appearing for a live, in-person hearing, a person merely sends in his or her evidence for consideration. Each year, 3 out of 4 administrative reviews are denied.
Let me be very clear about this: even though we don’t do administrative reviews, it is not my intention to try and dissuade anyone who wants to give it a shot from doing so. I could write a book about all the things that can, and usually do go wrong with these “appeals,” but for all that effort, it’s far easier for me, instead trying to talk anyone out of trying an administrative review, to just say give it a whirl; if you win, then good for you, and if you don’t, then call us. For everything else I could say, the reality is that many of the people who hire us for a “proper” clearance have already tried to do it on their own, and called us after losing.
There are lot of reasons that administrative reviews fail, but 2 of them stand above all others: First, most of them are based upon an inadequate substance use evaluation, and second, not being present to answer the hearing officer’s questions is a real problem, since there are always questions. In the real world, most lawyers don’t really know how to properly do a license restoration or clearance appeal (certainly not enough to guarantee their work), so how can better work be expected of anyone trying it on his or her own? The fix, of course, is simple: skip the shortcuts, come back, and do this right.
Before we get to those, let’s look at the key part of the main rule governing license appeals. It reads as follows:
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.
ii. That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.
iii. That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk.
iv. That the petitioner has the ability and motivation to drive safely and within the law.
v. Other showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.
This makes clear that, by law, a person filing for a license reinstatement has the burden of proving his case by “clear and convincing evidence,” meaning, essentially, that he or she has to hit a home run.
Legally speaking, the key is proving you have quit drinking and are committed to remaining sober. There is no room in this process for anyone who still drinks, or even thinks they can every drink again. If you can’t convincingly prove this, then the hearing officer is required, by law, to deny your appeal.
The substance use evaluation (SUE) is really the foundation of a driver’s license appeal. The Michigan Secretary of State relies upon, or at least hopes to be able to rely upon the evaluation as an unbiased, clinically accurate report of a person’s substance abuse history, diagnosis, and prognosis for continued sobriety. In a very real way, the Secretary of State wants the evaluation to be a reliable predictor of how likely a person is to remain alcohol (and drug) free.
While that’s easy enough to understand, it gets complicated from there. Just about any clinician can look at the state’s official SUE form and figure, “I can do that.” In terms of filling it out completely, they’d probably be right, but not in terms of filling it out the way the Secretary of State hearing officers want it done. This is really a problem of the state’s creation, more than anything else, but my purpose here isn’t to argue for a change in procedure, but rather explain how the procedure works. Let me elaborate:
My office uses 1 primary and only a very small circle of other evaluators. These clinicians devote a significant portion of their practice to doing substance use evaluations for Secretary of State license appeals. In order to do them right, an evaluator needs regular feedback about the license appeal process. This means hearing about any changes in the rules, the lineup of hearing officers, and/or the way information is being presented and assessed.
My team and I speak with and exchange emails with our primary evaluator about license appeal issues multiple times every week, and often have her accompany us to license appeal hearings to stay current with what questions the hearing officers are asking and how they are interpreting the information on the SUE form.
When you think about it, how can anyone expect an evaluator to know how to provide information in the manner the hearing officers want, if he or she doesn’t know, firsthand, how they analyze it and what questions they ask about it?
Over time, this kind of detailed knowledge matters a lot. As things change and evolve in the license appeal process (and they always do), so too will out evaluator’s understanding of how to complete the SUE, and what information should be provided for the hearing officers. Although, in a perfect world, it should be the case that all of this would be obvious by merely looking at the form, the fact is, it is not.
Anyone considering a license appeal needs to ask themselves, do I care more about arguing how things should be, or do I want to get this done right the first time and win?
A substance abuse counselor in Michigan without that kind of direct involvement in the license appeal process kind of starts out with a disadvantage. A counselor who works out of state not only doesn’t have a clue how Michigan does things, but may even be further handicapped by trying to do things consistent with his or her state’s procedures (assuming they know them), which are always going to be different.
Now, before the reader thinks, maybe they’re not that different, let me remind him or her that in just about every state, driver’s licenses are issued by a specific agency called the Department of Motor Vehicles, or DMV. In Michigan, we don’t have a DMV, and licenses are issued by the Secretary of State, which is also responsible for every aspect of city, state and federal elections, as well.
To be clearer still about this: In my nearly 30 years as a Michigan driver’s license restoration lawyer, I have never seen an out-of-state evaluation that I would use in a case and add my guarantee to it.
The second big stumbling block in winning an administrative review is that you’re not there to answer any of the hearing officer’s questions.
Make no mistake, there are always questions. It was only a few paragraphs back that I noted one of the reasons we bring our primary evaluator to license appeal hearings is to observe what kind of questions the hearing officers ask. In fact, the whole purpose of a hearing is to obtain more information, through questions and answers, than could otherwise be gleaned from simply reading the documents.
It’s worth noting that if a person pursuing a license appeal is still a Michigan resident, he or she MUST show up for a hearing. Rather than make non-residents come back, though, and in light of the fact that even most residents lose their restoration appeals, it’s understandable that the state allows people an opportunity to file an abbreviated, long-shot appeal without having to appear for a hearing.
Still, the fact that 3 out of 4 administrative reviews lose also means that 1 out of 4 do win, although it’s hard to say how many times those who do eventually succeed have tried and lost before.
We could go on forever about the kinds of questions asked at a license appeal hearing, but most often, a significant portion of them focus on the evaluation itself. For example, most hearing officers will typically ask if a person disclosed every period of abstinence to his or her evaluator. These types of questions arise simply because, in looking at a person’s conviction history, it becomes clear that he or she was on probation several times for DUI’s, and either the person complied with the “no drinking” requirement of probation (and therefore accumulated a period of abstinence), or they just drank the whole time, anyway.
In real life, drinking while on probation is probably more common than not, but that gives rise to questions about how well a person can be expected to follow rules now, when they didn’t do it very well in the past, and drank while on probation, despite having been ordered not to do so.
On the other hand, when a hearing officer sees someone who stopped drinking while on probation, and then started back up once it ended, they want to know why they didn’t just “stay quit.” Some hearing officers even consider such a return to drinking a relapse.
By being there, at a hearing, we can explain things and negate that implication. However, if you’re not present, and the hearing officer is inclined to think of a return to drinking as any kind of “relapse,” your appeal goes right down the drain.
What I’ve brought up so far are common questions, and they’re asked in most cases. At the end of the day, the hearing officer wants to make sure a person has been alcohol-free for a “sufficient” period of time, and is a safe bet to never drink again. Really getting to the bottom of this requires asking some direct questions, and if you’re not there to answer them, well, then you lose.
Of course, there are always exceptions: Imagine, for example, Long-Term Larry, who has been sober for 21 years, has been active in AA the whole time, has outlived his first sponsor (and now has a second), and usually has 2 or 3 “sponsees” of his own at any given time. Larry runs the annual 4th step retreat and has also been the treasurer of his local home group for the last 9 years.
Larry is an exceptional candidate for a license appeal.
If that sounds like you, and you really understand the “meat and potatoes” of a license appeal, then I’m honest enough to say you sound like you have a decent chance at winning an administrative appeal.
If not, then you either need luck, or competent help. We can provide the help, but you’re on your own for the luck.
Think about it this way; can you imagine a hearing officer looking at all of your paperwork and not having even one, single question? I can’t. And to put this in perspective, I have represented lawyers who now live out of state and needed clearances because they knew enough to understand the old caution, “You don’t know what you don’t know.”
Anyone even thinking about trying to do this on their own has a big task before them. There is a lot to all of this stuff.
When we take a case, our clients don’t have to worry about that; we do all the legwork and handle all the baggage. All they have to do is come back to Michigan 2 times: once, to meet with us and prepare to go and have the substance use evaluation completed (we schedule things so that the client goes from our office directly to the evaluator’s, making it a “one and done” trip), and then again, several months later, for the actual hearing. We handle all the details, and guarantee the result.
To keep this article of reasonable length, and limit it to 1 installment, I’ll stop here, but of course, I could go on, and if the reader is interested in more detail, I’d suggest he or she scroll through the Driver’s License Restoration Section of my blog, where I have written and published over 500 detailed articles about every facet of the license appeal process.
As complicated as all of this can be, our job is not only to win, but to make it easy. If you need to obtain a clearance of a Michigan hold on your driving record and you’re looking for a lawyer, give us a call. All of our consultations are free, confidential, and perhaps most important, done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. 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.