Michigan Criminal Defense Lawyer Blog
In Part 1 of this article, we looked at how the DAAD views someone with 2 or more DUI and/or Substance Abuse-related convictions who has had their Driver’s License revoked and is appealing to have their License Restored. We examined the first issue, “that the Petitioner’s alcohol problem, if any, is under control and is likely to remain under control.” We saw how that really translates into 2 issues, and how the whole notion of an alcohol problem, “if any,” really is a red-herring in the sense that no one can reasonably expect to win their License by attempting to prove that they don’t have some kind of alcohol problem. In Part 2 of this article, we’ll review the remaining “official” issues set forth in the DAAD’s Rule 13, which governs these cases, and see what is really looked at, and how, as well as what simply doesn’t matter. Finally, we’ll learn what is meant by the requirement that a person seeking a License Restoration prove their case by “clear and convincing evidence.”
Let’s move on and look at the rest of the “official” issues as outlined in the DAAD rule 13:
(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.
Looking at the second of the DAAD’s official “issues,” “that the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk,” we can see that, in truth, it really is a repeat of the notion that the “Petitioner’s alcohol problem is likely to remain under control. ” Think about it for a moment; can you imagine any information which tends to prove either one of those things any more or less than the other? Of course not. The same evidence submitted to prove one proves the other, and vice-versa. In all my many hearings, I have never seen a situation where proving that the “Petitioners alcohol problem is likely to remain under control” doesn’t simultaneously prove that they pose a low or minimal risk to repeat past abusive behavior. Therefore, this “issue” is really a non-issue.
The same thing holds true for the DAAD’s third issue, “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.” If a person’s outlook for continued abstinence is good, then the prospect that they won’t drink (much less drink and drive) is also “good.”
So far we’ve looked at 3 of the DAAD’s official “issues” and seen that the proof necessary to satisfy them really amounts to 2 things:
1. That the Petitioner quit drinking since such-and-such a date, and has not consumed any alcohol since then, and
2. It is a relatively safe bet that, because of what they’ve learned about themselves, and alcohol, and their inability to safely consume and control the effects and use of it, they’ve made wholesale changes in their lifestyle to ensure that they will permanently live an alcohol-fee and sober life.
The fourth DAAD “issue” is what I call the “Seldom Occurring Issue,” which is “that the petitioner has the ability and motivation to drive safely and within the law.” I point out that issue seldom occurs because of what it means. This issue really only crops up when a Petitioner applies for License Restoration and either has a really bad or unsafe driving record (aside from their DUI’s) or has been caught driving after they’ve had their license revoked. Think about it this way: If the Secretary of State has completely revoked a person’s license, meaning they cannot drive at all, under any circumstances, and, despite that, they get caught driving anyway, with no license whatsoever, how can anyone expect them to suddenly, and almost magically, be inclined to follow orders like driving only at certain times, or for specified purposes? In other words, their past actions don’t make them look like a god bet to follow the rules in future situations.
Most people who appeal for restoration of their Driver’s License do not have horrible, accident-loaded, bad driving records (aside from their DUI’s), nor do they have any incidents of getting caught driving after their License has been revoked (DWLS and DWLR Cases). In those cases, there is no need to address this issue, because it simply is not relevant. When a person has been caught driving after having their license revoked, however, they’ll need some help in convincing the Hearing Officer that they are “motivated” to drive “within the law,” meaning following any and all limitations placed upon their driving if they win their case.
It is important to prepare a case by having a good understanding of a Petitioner’s complete driving history so that, if this issue is relevant (that is, does “occur”), it can be adequately addressed at the Hearing. This means getting and reviewing a copy of the person’s Driving Record. The Driving Record can be obtained in person at any Secretary of State Branch Office.
The fifth, and final “issue” listed in the DAAD’s rules isn’t so much of an issue as it is a “catchall” which allows the Hearing Officer to make sure the Petitioner is completely capable of and qualified to resume driving. This allows the Hearing Officer the room he or she needs to require any other proof that is relevant to the case. In practice, this could be called the “Almost Never Occurring Issue,” because in the hundreds of cases I’ve handled, I’ve almost never seen it come up. When I have seen the issue arise the few times it has, it always involved a “clean” urine test that was missing some component or other (often an integrity variable related to the person’s Creatinine level). The Hearing Officer, rather than denying the Appeal, ordered the Petitioner to take another urine test within 24 hours from the time of the Hearing, and have the results sent to them within 72 hours. This is really what that rule is all about.
By now, I hope the reader has developed an idea that going into a License Restoration Case means having to overcome a legal presumption that they have an alcohol problem. In order to overcome that presumption, there are really 2 key things they must show: That their alcohol problem is under control and that it is likely that it will remain under control.
We also mentioned that these two things need to be proven by “clear and convincing evidence.” What does that mean? One definition I found online is as good as any I have seen. Clear and convincing evidence means that the trier of fact (Judge, Jury, Hearing Officer, etc.) must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard but less than beyond a reasonable doubt. In practice, this means that the bar is set pretty high, and the person seeking a License Restoration must clear that hurdle like a pole-vaulter must clear the bar when they jump.
Clear and convincing evidence does not mean something as basic as getting the benefit of the doubt. When we think of the Law, and Courts and Judges, we often think in terms of the “Scales of Justice.” If a party presents enough evidence to tip the scales even a hair more one way than the other, then they win (or lose their case). In License Restoration cases, tipping the scales is not nearly enough. Instead of just “tipping” the scales, a Petitioner seeking License Restoration must come close to loading up the one side all the way – but not quite. In other words, to use a baseball analogy, if just tipping he scales was to hit a single, and completely loading up the one side was to hit a home run, tipping them enough to meet the standard of “clear and convincing” would be hitting the ball off of the outfield wall and managing to get a double, or a triple.
In presenting evidence good enough to meet the “clear and convincing” standard, a person needs to make sure that everything presented is both clear, and consistent. This means that a person’s Letters of Support must specify the time frame within which the writer’s know the person has been alcohol-free, and not just say that they have been alcohol-free for a while. Likewise, if one letter says the person has been alcohol-free since “the end of 2007” and another letter claims they haven’t had a drink since after New Year’s day of 2008, then they are not consistent enough to meet the “clear and convincing” evidence standard. This all goes back to the concept we discussed in the introductory part of this series when I noted that success in these cases comes from painstaking and proper preparation. Remember, I pointed out there that “preparation is the key.”
Now that we’ve reviewed the issues the DAAD looks at, and how they look at them, as well as how they view a person filing for License Restoration, we will, in the next article, turn to a detailed examination of those issues, and the evidence that should (and, in some cases, should not) be submitted in filing for a hearing. We’ll examine the Substance Abuse Evaluation, the Letters of Support, and the process of preparing for a Hearing. Later, we’ll examine what happens at the Hearing, and see how that preparation really pays off. As I noted earlier, it’s going to be a long ride; now we’re ready to get underway.