Michigan Criminal Defense Lawyer Blog
In Part 1 and Part 2 of the last installment of this series about License Restorations in Michigan, we looked at the legal issues involved in winning back a driver’s License. In this installment, we’ll take a much more detailed look at those issues, and examine what evidence should be submitted in support of License Appeal, and to an extent, what should not be submitted. We’ll be looking, in particular, at the Substance Abuse Evaluation and the Letters of Support. As I’ve noted before, this is complicated stuff, and there are no shortcuts around it. This installment, because of it’s length, will be broken into 3 articles.
In order to file for Restoration of their Driver’s License, a person must submit 3 things:
1. A Request for Hearing,
2. A Substance Abuse Evaluation, and
3. Letters of Support (between 3 and 6).
These documents must be completed fully and properly before they are submitted. Once the documents have been submitted, they are essentially “locked,” meaning that the information they contain cannot easily be changed. Think of a tax return; once it’s filed, the IRS proceeds based upon the information it contains; a person cannot make wholesale changes to it without strong evidence supporting the changes, and a good explanation as to why the wrong information was submitted. Even if this example is a bit of an overstatement, it is fair to say that the documents submitted to the DAAD better be close to picture perfect (i.e., “good to go”) at the time they are submitted.
As a Driver’s License Restoration Attorney, I prepare License Restoration Cases to be filed almost every day. Unlike other parts of my practice, which are limited geographically, I can and do represent anyone, from anywhere within, and even outside of, the State of Michigan, for a License Appeal. All of my cases are scheduled for Hearing in the Secretary of State’s Driver Assessment and Appeal Division Office in Livonia, Michigan. This office conducts all the Hearings for the Metropolitan Detroit Area. No matter where a person lives, I can schedule their Hearing to take place at this Hearing Office. The information I present in these articles is based upon that experience, and comes from doing this over and over again, and doing it right. As a result, I have a success rate of well over 90% in the License Restoration Cases that I handle.
As a starting point for this article, we’ll look at the issues, specified by law, that the DAAD must consider when a person files for a License Restoration. Some of these issues are more important than others. Some seldom come into play, and a few are really multiple ways of saying the same thing a different way. As we’ll see, all of this really boils down to a person having to prove 2 or 3 things in order to win their License back.
The proof a person submits in support of their License Appeal must be strong. By law, and as we’ll see as we examine the primary rule that governs these cases, that proof must be “clear and convincing.” This means that a person filing for a License Appeal cannot win their case by simply getting “the benefit of the doubt.” Instead, they must essentially hit a home run. Obviously, this means that a person can’t do a half-baked job on the paperwork and just show up for a Hearing. I’ve said it before, and I’ll probably say it again (and again); Preparation is the key.
With that said, let’s begin our detailed examination of the issues reviewed by the DAAD when a person files for a License Restoration.
In a previous article, we examined the primary rule that governs these cases, known and referred to as “Rule 13.” Let’s set it out again so we can see what we’ll be talking about:
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.
We see that there are really 4 issues specified, and a 5th which is sort of a “catchall.” While this looks intimidating at first, by breaking it down, we’ll see how this really boils down to 2 or 3 things, as we noted above.
The first “issue” contains 2 distinct things: First, “[t]hat the petitioner’s alcohol or substance abuse problems, if any, are under control,” and second, that they are “likely to remain under control.” In truth, this part of the rule should have been written as 2 separate “issues, because in practice, each of the 2 sub-issues is treated as a separate issue. This only makes sense, because what is necessary to prove each of them is very different. In other words, these are really 2 distinct issues stuck into one sentence.
In practice, the DAAD treats each issue on it’s own. The first of those “sub-issues,” that the person’s alcohol problem, if any is under control, really translates to this: Has the person completely quit drinking for good, and since when? As we noted in the introductory articles, there’s no point in discussing the whole “alcohol problem, if any…” language, because the DAAD presumes anyone who had their License Revoked for DUI’s or Substance-Abuse related offenses has a problem. In nearly 20 years of handling these cases, I have never even heard of, much less seen anyone winning back their License by trying to show that they don’t have at least some kind of problem. That’s not to say a person has to go in an falsely confess to being alcoholic; it simply means that the DAAD will presume a person was, at least at the time of their last DUI, an alcohol (or substance) abuser. I think it’s fatal to a case to try and proceed otherwise, and no amount of money could persuade me to handle a case where the person Appealing for Restoration of their License wants to argue that they never had any kind of problem.
So the first thing to be shown is that the person’s alcohol (or, far less frequently, substance-abuse) problem is under control. What does that really mean?
It means showing that the person quit drinking forever. On my site, I talk about the difference between stopping something and quitting. A person can stop smoking many times, but they can only truly quit once. Thus, quitting involves showing that a person has done more than simply just not picked up a drink. It involves showing wholesale lifestyle changes to make that quitting a forever thing. Most importantly, it involves showing that the person has not had a drink since their sobriety date.
The evidence submitted to support this are the Letters of Support. These letters are supposed to be from a cross-section of people who know the person Appealing for their License. In other words, the DAAD wants to hear from the family or people they live with, co-workers, fellow AA or support-group people, friends, and acquaintances. It really does little good to submit 4 letter from co-workers only, because the DAAD can simply say, “okay, we’re convinced your not drinking at or around work; what about the people you live with, and you friends, and family? Where are their letters?”
The content of these letters is very important. Most letters I see before I edit them are what an Attorney-friend of mine calls “good-guy letters.” The letters are supposed to talk about how the people writing them know, and have observed the person Appealing for a License not consume any alcohol, and for how long. Very often, a person, in getting clean and sober, will ditch the “drinking buddies” and surround themselves with a whole new cast of friends. Obviously, those friends can only attest to the person not drinking since they’ve known them. Family members should talk about the change in the person Appealing for License, how they have behaved differently, and how they have either refused alcohol at family functions and/or stayed away from functions where alcohol was being served.
The point to all of this is that the letters of support are supposed to prove a person has not been drinking, and for how long the writer has known that to be the case. When the letters talk about what a good person the subject is, and how they have been inconvenienced without a License, they aren’t giving the DAAD any useful information about the person’s sobriety. All the good-guy stuff in the world, while admirable, is completely worthless in terms of useful evidence.
On my site, under the section entitled “The First Issue and the Letters of Support,” I include some examples of specific language used in letters, which, while they tend to demonstrate the good character of the person Appealing, are completely useless as evidence. I then contrast those with examples of language that goes directly to what the letters are supposed to show.
It is the letter-writer’s behavioral observations of the person Appealing for their License which is the key evidence used to prove the first sub-issue. Proving that the person’s alcohol problem is under control relates to their recent past behavior. In other words, it looks backwards. As you can see, nothing we talked about goes directly to the second “sub-issue,” which is that the person’s alcohol problem is likely to remain under control. The proof submitted on that issue looks forward, not backward.
In the next article, we’ll look at the second sub-issue, which is that the person’s alcohol problem is “likely to remain under control,” and we’ll examine the evidence that should be submitted to prove that issue.