Michigan Criminal Defense Lawyer Blog
In Part 1 of this installment we examined what it takes to prove that a person’s alcohol problem “is under control.” In Part 2 of this installment, we examine the proofs that should be submitted to demonstrate that a person’s alcohol problem is “likely to remain under control.”
After all that, we haven’t even gotten to the second issue yet! Relax, though, because we can get rid of that second issue (and a couple of others) in a few paragraphs. In this installment, we’ll tackle that second, as well as the rest of the “official” issues that a person Appealing to win back their License under DAAD Rule 13, which governs these cases.
The second issue, under Rule 13, is “[t]hat the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.”
As I noted in the introductory articles, this really is a repeat of the second part of the first issue we just talked about. Any evidence, or testimony, submitted on behalf of the notion that the person’s alcohol problem is “likely to remain under control” will simultaneously prove that “the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.” Indeed, there is nothing even remotely relevant to the one issue that isn’t likewise relevant to the other. Can you even think of anything that might tend to prove on of those issues any more, or less, than the other?
In practice, the DAAD examines the evidence submitted on behalf of the notion that the person’s alcohol problem is “likely to remain under control” as evidence “that the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk.” This second issue might reasonably be translated to something like “the risk of the petitioner having a relapse is low or minimal.”
Good news ahead: the third issue is another repeat. That third issue, “[t]hat 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,” is just a more complicated way of asking if the person’s alcohol problem is “likely to remain under control.”
Just like the second issue, absolutely everything submitted to show that the person’s alcohol problem is “likely to remain under control” simultaneously proves “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.” In fact, if a person has proven that they are likely to remain alcohol-free, then they have likewise proven that they are a low risk to drive drunk again. Moreover there is nothing that can be submitted to prove this issue which does not, to the same extent, prove that their alcohol problem is “likely to remain under control.”
So we’ve just looked at the first three issues, and found that there are really only 2 things that need to be proven. More precisely, we’ve seen that the second and third issues are taken care of by proving the 2 sub-parts of the first issue.
This means, then, that once a person has proven that their alcohol problem is under control, and is likely to remain under control, they can move straight on to the fourth issue, which is “[T]hat the petitioner has the ability and motivation to drive safely and within the law.”
On my website, and in the introductory articles, I call this the “Seldom Occurring Issue.” I say that because, in fact, this issue seldom does come up.
This issue is only relevant to those Drivers who have gotten caught driving while their License has been Revoked, or those who were such terrible (or dangerous) Drivers (aside from their DUI’s) that there is a genuine question, aside from their not driving drunk, about whether they can follow the law, or drive safely.
In all my years of handling these cases, I have only seen this issue come up when someone has been caught driving after their License has been Revoked. I have never had someone who had such a dangerous driving record (again, apart from their DUI’s) that there was a real concern that they might, even sober, be a danger upon the road.
I’d say, off the top of my head, that this issue comes up in less than 10% of all the cases I handle. When it does surface, however, it cannot be glossed over. From the DAAD’s point of view, the issue can be posed as a question to the person Appealing: “If you were told, some time ago, that you could not legally drive at all, but you still drove (and got caught) anyway, what’s to make us believe that if we give you a license with certain restrictions, you will obey them?”
It’s a good question, and a convincing answer might not be as simple as you’d think. When a person is sitting at their Hearing, and looking Directly at that Hearing Officer, both their answer and demeanor in response to this issue are being evaluated. Usually, the person explains that this instance of driving was necessitated by some unusual circumstance, such as the unexpected failure of their regular ride to work, or a sudden illness of a family member. With a little preparation, the person can get through this phase of the Hearing without much trouble. When there are multiple instances of getting caught driving with a Revoked License, however, things get a bit more complicated. As a matter of course, I will not handle a case until at least one full year has elapsed from a person’s last incident of being caught driving after their License has been revoked.
If a person has to contend with this issue, then they must be helped in formulating a plan to address it. If they do not have a dangerous, horrible driving record (again, apart from their DUI’s) or if they haven’t been caught driving since their License was Revoked, then it is NOT an issue.
If a person was caught driving during their period of Revocation, but that incident happened years ago, then for as many years ago as it happened, it becomes, in proportion, a non-issue.
Now we examine the final issue. This final issue requires “[O]ther showings that are relevant to the issues identified in paragraphs (i) to (iv) of this subdivision.
Earlier, I called this a “catchall” issue, because that’s precisely what it is. It is important to note that this issue does two things, or, more accurately, does one thing, and doesn’t do another.
First, this “issue” gives the Hearing Officer the ability to require whatever additional evidence they feel is necessary to prove issues 1 through 4.
Second, this issue restricts the Hearing Officer to requiring only evidence that bears up those issues. In other words, the Hearing Office cannot come up with some other thing they require or want to be proven. They can only find the proofs submitted on the first four issues incomplete in some way, and require additional proof in support of them.
In fact, in my experience, the power granted to the Hearing Officer by this part of the Rule has only ever been used to give a person a “break.” The only times I’ve ever seen this part of the Rule used is when a person’s case has gone well, but there was some question as to the results of their urine test. The results of a urine test must be submitted along with the Substance Abuse Evaluation. It’s automatic, and anyone administering the Substance Abuse Evaluation can see what must be done. In most places, the urine test is taken at the time of the Substance Abuse Evaluation.
Anyway, in a few of the cases I’ve handled, there has been a question about the level of a certain hormone in the person’s urine, called Creatinine, which, when irregular, can be the result of a diluted or adulterated urine sample. Rather than simply rule against the person, if they state that they have been clean, many Hearing Officers will send them out of the Hearing with the requirement that they provide a urine sample for testing within 24 hours from the time of the Hearing, and allow another 24 to 48 hours for the results to be forwarded to them. Thus, this rule really provides a mechanism for a person to get a small break rather than as a way for the Hearing Officer to make it harder for someone to win their case.
At this point, we’ve covered the issues in Rule 13. We’ve seen what evidence should be submitted to prove a person’s case, and what is meant by “clear and convincing evidence.” We’ve seen how, despite the fact that there are technically 4 “issues” in Rule 13, the whole case comes down to only 2, or at most, 3 issues, or things, which need to be proven. We’ve also seen that the most important part of the case is proving that the person’s alcohol problem is “likely to remain under control.”
In the next part of this series, we’ll review the process of preparing for the actual Hearing. Later, we’ll take a look at what happens at the Hearing. If you’ve gotten this far, congratulations. I know this has been a long journey, but for those wanting to win back their License, it’s a necessary one. The good news is that we’re more than halfway though all this. I guess you could say that we’re “almost there.”