Michigan Criminal Defense Lawyer Blog
It’s likely that if you’re reading this, you have received a notice of an ignition interlock violation, are about to lose your license all over again, and have already paid to have a camera-enabled interlock unit installed in your vehicle; that became mandatory in June of 2016. One of the ideas behind this new requirement was to cut down on the number of ignition interlock violations that seem to be clogging up the schedule of the Michigan Secretary of State’s Administrative Hearing Section (AHS). Whether the camera units do that or not remains to be seen, but it probably doesn’t make you feel any better at the moment. Putting aside all the diplomatic nicety and legal finery for one moment, and before we dive into any meaningful discussion, let me just agree that this sucks. Almost every one (I’d like to believe every last one) of my interlock violation clients, whatever the underlying basis for their violation, were not drinking; I have no interest in helping someone win a violation case who was. For everything else I could say about this, none of it changes the basic fact that even if you’ve remained genuinely sober, if you’ve been violated, you need to win your license back, and getting all mad about things won’t help. After all the work that you put into getting sober, changing your life and then winning your license back the first time, you probably don’t deserve this, but, as Clint Eastwood’s cowboy character said in “Unforgiven,” the western movie, “Deserve’s got nothin’ to do with it.”
I’ve had interlock violation cases that have come as a complete surprise to my client, I’ve had plenty where the client first tried, unsuccessfully, to “head off” a violation by calling the interlock company and/or faxing documents to the Secretary of State in Lansing, and just about everything in-between. Obviously, if I’m involved, those efforts didn’t work, although I do make my staff and all of our resources available to my existing clients to try and avoid a violation in the first place. How and why ever it happened, when a person opens that envelope and learns that their license is going to be taken away, especially when they weren’t drinking and have remained sober, a flood of negative emotions rushes to the surface. I understand that, but my job, as a Michigan driver’s license restoration lawyer, is to help you move past the emotional stress and win your license back. As the saying goes, “It is what it is,” and there is no way to go back in time and undo things; instead, we need to take the appropriate corrective action under the circumstances in which we find ourselves.
In another ignition interlock violation article I put up about a year ago, I reprinted the “Notice of Proper Ignition Interlock Use” section that is part of every winning license appeal order (although some hearing officers title it a bit differently in their opinions). Key to those instructions is what to do after a missed rolling retest or any positive alcohol reading: Get a PBT (breath) or EtG (urine) test. For anyone reading this article because of a violation, you either did get a test (if doing so was relevant to your kind of violation; it is usually not in “Tamper/Circumvent” cases, for example) or you did not. If you should have gotten a test but didn’t, then it’s too late now, so there’s no point crying over spilled milk. We’ll have to work with what we have. In those of my cases where I don’t have a confirming negative test, I win interlock violation cases by using context, and how the alleged violation doesn’t fit within the context of my client’s behavior, case, life and/or recovery. In a very real way, this requires learning all of the relevant facts, understanding the procedure, knowing about the hearing officer, and also just having a real “intuition” about how to put a successful appeal together.
As frustrating as all this may be to have to go through, you have to understand the state’s side of things, as well. I’m not shilling for them, but since I do make most of my living by handling license appeals, I’ve had to become an expert of sorts in translating the client’s side of things into a winning case, and then explaining the state’s side of things to the client. As great as winning back your license was, and as much as you may have “earned” it over the course of years, you have to step back and see the first year on a restricted license and with an interlock as something of a test. In other words, it may help to think of the restricted license as a halfway point to actually winning your license back. As part of that deal, you have to do certain things, and some of them are downright difficult. This reminds me of what some kids would do back in college when they pledged to a fraternity or sorority. Even though I did my undergrad at Wayne State, a mostly commuter school, I still knew plenty of students who were part of the Greek system. While the idea of belonging to a fraternity never appealed to me in general, the things students agreed to do to “pledge” seemed downright demeaning to me, and there was no club I ever wanted to be a part of that badly. For those who desired membership in Alpha Wannabe One, however, doing what was required to pledge was clearly worth what I saw as humiliation. In the context of a Michigan driver’s license restoration appeal, it’s much the same thing. You don’t have to do the things the AHS requires to reinstate a driver’s license (burdensome and quirky interlock unit and specific driving restrictions that usually don’t even allow you to get groceries), but you cannot get into the “I have my license back” club if you don’t.
When you’re in a violation situation, it’s a total waste of time to argue about the rules and how unfair they are; you have 14 days to file a request for a hearing, or the only rule that matters is the one that says your license has been revoked (again) and if you don’t timely appeal and win, it will be gone for good, and you’ll have to start all over next year. Of course, next year’s hearing won’t even get off the ground until you clear up last year’s violation, so there’s no strategic value in just giving up and waiting, either. Another important thing to understand about the rules is that they require a person to prove his or her case by presenting evidence, and in a violation situation, that means proving to the satisfaction of the hearing officer that whatever happened didn’t involve you drinking and was otherwise inadvertent or accidental. Even in the case of a missed rolling retest where a person can prove he or she wasn’t drinking, the violation itself is for missing the test. It’s great to be able to show you weren’t drinking, but you’re also going to have to answer for not providing a breath sample when you were required to do so.
Let’s look at 2 fairly common, real life hypothetical situations as examples: One day, Bad Breath Bill is driving his car and his interlock device asks for a rolling retest, and then, for some reason, indicates that he has a breath alcohol reading of .32. Following instructions, Bill rinses his mouth and provides another sample within 5 minutes. This one is much lower, and following instruction, Bill drives himself to the local police station and gets a PBT (or maybe he headed to a clinic for an EtG urine test later on that same day). Bill will still probably be violated, but he’ll have the proof he needs to show that he didn’t drink and that that test result is errant. By the way, the Secretary of State recommends that a breath or urine test still be done even with a camera unit installed in the car.
For our 2nd hypothetical, assume Bad Breath Bill has had a roll of bad luck to go with his bad breath recently, and twice in the last month has gone out in the morning to start his car and been unable to start it at first because of positive breath tests over .25. Each time, he followed instructions, rinsed his mouth, got the car started, and went to the police station to get a PBT. Then, one morning within a few weeks of the other 2 tests the same thing happens again, but Bill has an important meeting that morning and is in a big hurry to get to work, so he just leaves the car and gets his wife to drop him off instead of going through the rigmarole of rinsing his mouth and getting a breath test. After work, he forgets about the Etg, but promises himself he’ll drive and get one the next day. Being busy and stressed and tired, Bill goes out the next day, the car starts just fine, and he forgets about any testing he was going to do. Of course, Bill gets violated…
At his hearing, Bill, for his part, will want to explain how that damn machine kept acting up and that he has been sober for over 6 years, had passed the other 2 tests, and that he just didn’t have time to go and get a test. He’s clearly frustrated by the whole experience. He expects that the hearing officer can see “inside” of him and tell that he really is sober and didn’t drink. He’s so different now, it’s impossible to miss; when Bill was drinking, he was like a runaway train. There is no way he could ever go back, and certainly no way he could ever drink with any sense of control. He tried that before, and quit when he finally realized it didn’t work and never would. Bill, as it turns out, is being completely honest; he has not had a drop of alcohol in over 6 years. But the hearing officer has known Bill for all of about 15 minutes. He or she never knew Bill when he was the Coors Light Express…
To the hearing officer, Bill’s conduct in leaving the car that one morning and not getting tested does raise a serious question about what happened. In the real world, meaning the ugly world inhabited by people who still drink and lie and manipulate, this is a classic situation; drink the night before, figure you’ll be clear in the morning, and then, well, you’re not. Now they have you blowing numbers; any further tests will just confirm what happened, so better to just “bail” and let them suspect something, rather than keep on proving it. Except that’s not true for Bill. But the hearing officer, acting under a rule that directs that he or she “shall NOT order that a license be issued” (emphasis added) rightfully expects Bill to prove he was not drinking. It’s a given, of course, that he’ll say he wasn’t, but in the face of a positive breath test and a car that was never started, all of Bill’s heartfelt commitment to sobriety means very little, and perhaps too little to meet the burden that he prove he didn’t drink that day, or the night before. Remember, the positive breath test is pretty strong evidence; Bill has to present stronger evidence to negate those results. Saying “I didn’t drink” or “the machine screwed up,” without more, isn’t going to cut it.
To make matters worse, while I get a lot of Bills as clients, but the hearing officers see more people in Bill’s situation who really did drink than those, like Bill, who didn’t. Bill is the exception, not the rule. But Bill is also my client, and I can’t let him lose based on a lie. This is where I have to translate the real world experience from the client’s side back to the hearing officer. This is where, if I don’t have any kind of chemical test, I need to build a strong case using other, circumstantial evidence. This is where “context” matters. This is where the time I spend in the office with a client matters, as does the time I spend just thinking about the case. In today’s hurry-up world, in which I am an all too willing participant, it sounds strange and almost wasteful to say you took the time to “think” about something, but that’s often what’s missing in so many situations. We want things done by pressing “enter.” As a fast-moving society, we want an app for everything. If you’re facing an interlock violation and you’ve tested positive but went out and got a timely and negative confirmatory test, you have what amounts to an app. If you’re stuck with nothing but an explanation, however, then you need someone to help you think it through. Without a negative test, how do we “prove” you didn’t drink more than just saying so? For my part, I get some of my best ideas when I’m working out or running (the irony is that one should use that time to get away from work, not obsess over it, but, to quote myself, “It is what it is”), and I use the quiet and solitude of a morning run to really think things through. It also helps pass the miles…
There is no great “answer” here in this article, nor is there some grand take away from it other than the simple reality that interlock violations suck, you’re in a tough spot, it’s probably unfair, and you need good help to win your license back. If you are facing a violation and you weren’t drinking, I can help. Amongst the reasons I’m not interested in taking on cases where a person has legitimately been caught drinking is that I don’t want to have any part of a lie, and also that when I believe my client is innocent, I can put my whole heart and soul into his or her case. I can share in your indignation over the situation; I can’t honestly do that if the system worked and you drinking. As I noted before, most of my clients are like out hypothetical Bill, so I usually don’t get called by anyone trying to pull a fast one.
For all of this, I can promise you the very best defense possible. I can take a case for anyone anywhere in Michigan, but he or she has to be willing to come to my office to meet me and then come back later for a hearing in Livonia. As with anything, if you’re facing a violation, do your homework. Read what other lawyers have written and narrow down your choices. When you’ve done that, start calling around. I do all of my consultations over the phone, right when you call. My office can be reached Monday through Friday, during normal business hours (8:30 a.m. until 5:00 p.m.) at 586-465-1980. We’re here to help.