Michigan Criminal Defense Lawyer Blog
In the Part 1 of this installment, we looked at the first sub-issue examined by the DAAD, that a person Appealing for a License has their alcohol problem “under control.” In this article we’ll see how the proof relevant to the second sub-issue, that the person’s alcohol problem “is likely to remain under control,” looks to the future, whereas, as we saw, the first sub-issue looks to the past. We’ll also see how most of the evidence that the person’s alcohol problem is “likely to remain under control” comes directly from the person Appealing for their license, more than anywhere else.
Without a doubt, this issue is the single most important part of a person’s Appeal. The vast majority of cases that are unsuccessful lose because of the failure to prove that the person’s alcohol problem “is likely to remain under control” by the required standard of clear and convincing evidence.
Before we talk about what should be done, let’s talk about what should not be done, and what can pretty much guarantee a lost Appeal.
If I didn’t do this for a living, I too might fall victim to the mistaken notion that all a person has to do is file for an Appeal, go in, show they haven’t had a drink in such-and-such a period of time, and say that they have quit for good. That, however, is miles short of the proof necessary to win an Appeal.
When we speak of the concept that a person’s alcohol problem “is likely to remain under control,” we are really talking about proving that the person has made such dramatic, wholesale lifestyle changes that drinking has no where to fit in. It used to be widely believed that the DAAD would not give a License back to someone who was not actively involved in AA. While that’s certainly not the case now, that idea has some value to illustrating this point. When a person becomes involved in AA, that involvement means a lot more that just going to a meeting or two a week. If a person is truly into AA, they will certainly have ditched their “drinking buddies,” and have made other, very dramatic changes in their lifestyle. If they used to go to the bar after work, they now no longer go to the bar anymore. It won’t do to say that they still go to the bar, but only drink soft drinks. People into sobriety know that that isn’t sober behavior. This is sort of what is meant by the saying that “if you hang around the barbershop long enough, you’re going to get a haircut.”
When people leave a drinking lifestyle for a sober one, they change where they go, where they play, how they play, and who they hang around with. They no longer keep alcohol in their house, and any supportive family members will not put their own interests above the recovering person’s by keeping such a source of temptation so close at hand. If hitting the bar was part of their life before, then they fill that void with something else, even if it’s just going home to watch TV.
Some people get involved with AA, and stay involved. Some people, after a while, get strong enough in their own sobriety to no longer need “support,” and just carry on with a sober lifestyle. Other people get all the help they need through counseling, and make the necessary lifestyle changes to be able to carry on, alcohol-free.
When they talk about getting sober, people who’ve really done it aren’t shy or uncertain about making that dramatic change. They can identify with the realization that they had an alcohol problem, even if they merely say that the light bulb in their head went off when they sat in jail, thought about it, and realized that the common denominator in all their troubles was alcohol. They can describe how they learned that alcohol was creating problems in their life, even if it only caused them DUI troubles, and how they identified the need to stay away from it. From there, they can list examples of no longer going out with their bar friends, and staying away from drinking functions, and how they changed their habits. Of course, they will always point out that being sober has been it’s own reward, and that while drinking caused them problems, not drinking has had the opposite effect in their lives.
Part of my job as a Lawyer for someone filing a License Appeal is to help them frame these issues. It’s easy for me to write about it; I do this stuff all day long. In a way, I speak for a living. For loads of people, expressing these things doesn’t come as easy. That’s why I spend hours and hours with my Clients. I make it my business to help my Client articulate these things and talk about themselves. That’s not to say that when the Hearing comes, this stuff will be easy for them, but I cannot imagine not helping my Client prepare thoroughly for that day, so that despite whatever jitters they may have, they are at least treading on familiar ground.
Often, people who have become clean and sober have never thought about the process in the way we’re talking about it. Think about eating; you do it everyday (I hope!). It’s certainly familiar to you. Yet describing the process of cutting your food into proper bite-sizes, seasoning it properly, and chewing it to just the right consistency before swallowing it is something you’ve probably never done (I never did, until just now!).
This is not to say that evidence of a person’s commitment to sobriety cannot come form other sources. If a person is involved in AA, for example, a Letter of Support form a fellow AA member can be used to show both the person’s abstinence from drinking, and their involvement in the program and commitment to sobriety.
Still, it is directly from the person Appealing that the best evidence comes. When a person has been living an alcohol-free life, there is no doubt they have made some pretty big changes to it. Even the shyest person will have no shortage of things to talk about as they describe that. And if they have been properly prepared, it’s not nearly as bad as even the shyest person might fear.
So what about the person (and there are lots of them) who thinks “I never was a big drinker; it’s really bad judgment, more than anything else, that got me here.”
This person has the hardest case. A person with numerous DUI’s who has gone to AA (even if they no longer attend) has an easier task proving to the DAAD that their alcohol problem “is likely to remain under control,” because they can an least identify alcohol as the problem. The person with only 2 DUI’s, and who thinks of themselves as never having been a “big drinker,” may have a hard time admitting something they do not truly believe to be the case. In those situations, it helps to turn the tables.
Imagine, for a moment, that you’re the Hearing Officer. You know essentially nothing more about the person you’re about to examine other than the fact that they have 2 DUI’s in 7 years (or 3 or more, within 10 years). Statistically speaking, that means that there is a substantial likelihood that they have an alcohol (or substance-abuse) problem. Legally speaking, the State of Michigan has categorized them as a “habitual offender,” and required that they undergo some kind of alcohol counseling (beginning with their 2nd offense).
Now, that person is sitting in front of you asking for a License back. In support of their case, they tell you that despite appearances, they don’t have any kind of drinking problem. So it’s up to you, in your role to, amongst other things, protect the innocent drivers and passengers on the roads of our state, to decide whether you want to sign your name to an order letting them drive again.
Oh, and remember, the person in front of you has to prove their case (that means convince you, as the Hearing Officer) by “clear and convincing evidence.”
It’s more likely that the President will sing the next State of the Union address than anyone will sign off on that Appeal.
So, while you’re still in the role of Hearing Officer, ask yourself what it would take to convince you, by “clear and convincing evidence,” that a person has not only been alcohol-free, but is likely to remain alcohol-free?
This gives at least an idea of how high the bar is set in these cases. There is, and can be no “benefit of the doubt.” No matter how nice the person Appealing turns out to be, it doesn’t matter. No matter how tough their life has become, no matter what hardships they’ve endured without a License, the two questions that must be answered, and answered with “clear and convincing evidence,” is whether or not they have been alcohol-free and whether or not they are likely to remain alcohol-free. All the other evidence and information in the world is simply not relevant.
In the next installment of this series, we’ll cover the remaining “official” issues examined by the DAAD, and we’ll finish our detailed examination of Rule 13.