Michigan Criminal Defense Lawyer Blog
In my role as a Michigan driver’s license restoration lawyer, I deal with a lot of ignition interlock violations. Some of these cases are for my own past clients, while others are not. What I have noticed recently is the increasing number of interlock violation cases that are not only part of my caseload, but that of the Michigan Secretary of State’s Administrative Hearing Section (AHS), because I have seen that the hearing officers have a lot more of these cases on their schedules, as well. For everything I’m about to say about interlock violations, the bottom line is that the state has gotten really tough on this facet of the license appeals. Chances are, that’s cold comfort to many readers, who are likely perusing this article and thinking, “Yeah, well, I wasn’t drinking so it’s just bull$hit that I have to go through this.” Believe me, I understand how you feel.
Yet all the understanding in the world won’t get your license back. As the saying goes, “It is what it is.” When you have to appeal an ignition interlock violation, it means you’ve already lost your license (again) and now you have to take the appropriate steps to get it back. A lot of people are shocked that a violation starts off with the re-revocation (technically and somewhat confusingly called a “reinstatement of original action”) of their driving privileges. As harsh as that action may seem, it is a good indicator of how seriously the Secretary of State takes these matters. While it may be a bit much to say that the SOS has “zero tolerance” regarding interlock violations, it does have very little patience for them, particularly because so many are (and were) avoidable in the first place. Remember, the way to avoid many of the exact violation situations (including things like leaving the car unattended, even momentarily) are specifically addressed the order granting a license appeal, and you should get the idea that resolving this is not as easy as showing up for your hearing and saying, “Oops…”
Here’s a good example of what I mean; it was told by a hearing officer during a violation hearing. I won the case, but in deciding for my client after he missed a couple of rolling retests, the hearing officer, in noting that the guy did have a favorable urine test showing that he hadn’t consumed any alcohol, observed that although it was good he could prove he hadn’t consumed alcohol, the violation itself was for missing the test, not for drinking. He explained that, of course, while it is always the primary concern that a person may have consumed alcohol, the interlock requirement is very much like a contract that, in exchange for the ability to drive again, requires the driver to blow into the machine every time he or she is requested to do so. He used an illustration of a lifeguard at a hotel pool: If the hotel manager reviewed security footage that showed the lifeguard leaving the pool area for a few minutes and then confronted him or her about it, and even if the guard replied that when he or she left, no one was in the pool area and that there were no incidents anyway, the boss would remind the lifeguard that his job is, first and foremost, to just be there. The fact that no one was in the pool and nothing happened is all well and fine, but the job requirement for the lifeguard is to be in the pool area, regardless of who else is or is not around. This is exactly the kind of thinking that underlies many ignition interlock violations…
Lawyers, for their part, will always talk about evidence and proof. These are important, but you must be aware that in the context of an ignition interlock violation, it is only when a person has a positive breath test (especially if it results in a start-up failure) that he or she can possibly submit any kind of direct “proof” regarding the violation. Here, a positive blow can be refuted by a clean test result. As of the time of this writing, the only way to do that is with a timely PBT test done at a police station, or an EtG urine test taken within a day or two of the positive result. A subsequent clean sample delivered into the interlock unit still leaves open the question of who provided it. New legislation is on its way through the legislature that will require all interlock handsets to have a built-in camera (that’s just an option now, and most people don’t choose it) which will obviate the need for a subsequent, ID-verified breath or urine test because there can be no doubt who provided the subsequent clean sample.
In all other violation situations, relevant evidence is far more circumstantial than direct. That doesn’t mean such evidence isn’t any good, but going back to the skipped rolling retest, for example, all the proof in the world that a person didn’t drink still doesn’t disprove that the person missed the test. In other words, if you’re violated for missing a retest, real, true-blue direct evidence would be proof that you took (and passed) the test and the machine somehow got it wrong. That simply does not happen in the real world. Thus, in just about every violation case that comes along, except a positive breath test result situation, we’re left to assemble a case of circumstantial evidence. And then we have to present it to an already overworked and (understandably) skeptical hearing officer
The key thing for me is to put together such evidence with the understanding that the hearing officer’s job is to tear it apart. If Debbie the driver has a start-up failure one morning, and then a few minutes later passes her breath test and manages to get her car started and drive to work, the lawyer cannot merely ask the hearing officer to look at the event log on her interlock report and assume because it was her usual pattern it was her driving on the day in question. Instead, the hearing officer can and will demand to know how he or she can be sure it was Debbie the driver who provided the clean breath test samples after the start-up failure. If Debbie’s lawyer hasn’t taken into account submitting specific evidence about that, things aren’t going to go so well. What kind of evidence should Debbie put together? That’s an easy answer; everything she can.
In my practice, I’ll spend a few hours with a client going over things (as in everything) and outlining a plan for our violation case. It is critical for me to send the client out with clear instructions for any and everything else he or she needs to get by way of evidence. I must question everything, and put every bit of evidence and explanation we have under the microscope while I image the hearing officer deliberately trying to tear it apart, because that’s exactly what he or she will do. It’s their job.
Not understanding this accounts for why many violation appeals lose. Or lose again, when you factor in that a violation hearing comes after the license you won back was re-revoked. About the biggest mistake someone can make is to think of a hearing as an opportunity to just show up and explain things. You have to do more than just explain; you have to prove things. You have to prove, the best you can, that you weren’t drinking, and you have to prove, the best you can, why you violated in the first place. You have to anticipate the questions that will be asked by the particular hearing officer who will be deciding your case. In addition, you have to swallow your frustration and just deal with the issue at hand. You can’t show up all mad and tell the hearing officer, “This is bull$hit!” Actually, you can, but you can also pretty much count on losing, as well, if that’s your plan. As with most things, success is achieved through careful preparation. Given what’s at stake in an ignition interlock violation appeal, we need to make sure we bump that preparation up to the highest level.
If you’re facing an ignition interlock violation, do your homework. Check around. I always advise reading what lawyers have written on this subject and then, once you’ve narrowed the field, picking up the phone and calling around. When you do that, please feel free to get my take on your situation by calling my office, as well. We’re here to help, Monday through Friday, from 8:30 am to 5:00 pm, and can be reached at 586-465-1980