Michigan Criminal Defense Lawyer Blog
In Part 1 and Part 2 of the Introductory articles of this series, we had a very brief overview of the License Restoration Process. Now, as we continue, we’ll examine the issues that the DAAD looks at when deciding a License Restoration Case. We’ll see the “official” rules, as well as how those rules are really interpreted. We’ll also look at what is meant by the requirement that a person seeking License Restoration proves his or her case by “clear and convincing” evidence.
In this article, we will begin reviewing the legal issues that every person seeking Restoration of their Driver’s License must overcome. Most of these articles will have to be broken into multiple sections, and this one is no exception. Thus, we’ll break this section into 2 separate articles, just like we did the introduction.
To understand this whole concept of “issues,” a person must first understand how both the Law in general, and the DAAD in particular views someone who has had their license revoked for 2 or more DUI’s or “Substance-Abuse related” convictions.
By law, a person who accumulates 2 DUI’s or “Substance-Abuse related” convictions (from here on out, we’ll just say “DUI”s”) within 7 years, or someone who accumulates 3 or more within 10 years, is considered a “Habitual Offender.” We could spend a whole article or two discussing and arguing the numerous implications of that term, especially since a 3rd DUI in a lifetime is now considered a Felony, but for purposes of this article, once a person has their license revoked under the DUI laws of Michigan, they fall squarely within the definition of a “habitual offender.”
Under the rules of the DAAD, the first thing a person seeking Restoration of their License must prove is that their “alcohol problem, if any, is under control.”
Right out of the gate, anyone reading this can completely disregard that “if any” language in the rule. In nearly 20 years of handling these cases, I can tell you that I have never seen, handled, or even heard of, a case where someone applied for a License Restoration and tried to prove they didn’t have an alcohol (or substance-abuse) problem. When a Revoked Driver files a License Appeal, the only question there is about their alcohol problem is how serious it is (or was), not whether it even exists. To be clear, I have never even heard of anyone trying to win a License back whose argument was “I don’t have a drinking (or substance abuse) problem.”
Sometimes, people with 2 DUI’s will feel that perhaps their record is not an accurate representation of who they are, in the sense that they never were a big drinker. That’s fine, but they also need to realize that, at a minimum, their use of alcohol which has resulted n 2 DUI’s, has demonstrated to the world that their drinking causes them to exercise very poor judgment. While they may not be what we think of as “alcoholic,” they certainly have crossed the line that separates a normal, safe drinker from someone whose use of alcohol results causes trouble. There is no amount of money in this world that would tempt me to represent any such person before the DAAD and argue that they don’t have an alcohol problem, because I know for a certainty that they will absolutely lose their appeal.
Okay, so now that we’ve established that because a person has been legally categorized as a habitual offender, they shouldn’t waste any effort trying to disprove an alcohol problem, we have likewise established that anyone appealing for Restoration of their Driver’s License MUST begin the process by showing that their alcohol problem is under control. In other words, when a person walks through the door of the DAAD Hearing Office, it is assumed that they have some kind of issue with alcohol. Arguing otherwise is a sure path to losing the Appeal.
That provides the backdrop for laying out and examining the issues, (or hurdles) a person appealing for a License Restoration (called a “Petitioner”) must overcome. Under the DLAD Rules governing License Appeals (specifically, Rule 13), a Petitioner must prove the following things, and must do so by “clear and convincing evidence” (more on that later):
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.
Now, if you’ve read the introductory section of this series carefully enough, you probably noticed that I have broken the Secretary of State’s first rule into 2 different parts. I do this because that’s how, in practice, the DAAD looks at things. Let me explain. If you look at the first issue as written in the official rule, it really contains 2 distinct parts; that the person’s alcohol problem is under control, which means they have not been and are not drinking, and that the person’s alcohol problem is likely to remain under control, meaning that they are a good bet to remain alcohol-free. The first part is proven by demonstrating, though Letters of Support and Testimony, that the Petitioner has not had a drink since such-and-such a date.
The second part is proven by submitting a Substance Abuse Evaluation whose “Prognosis” for continued abstinence is either Good, Very Good, or Excellent, and which is backed up by proof that a person has undergone a wholesale change in their outlook about drinking, and is living an alcohol-free lifestyle.
As you can see, very different proofs are needed for each of those two things, and, as such, they are and should be treated as 2 separate issues.
In the second part of this article, we’ll look over the remaining “official” issues under the DAAD’s rule 13, and we’ll see what they really mean and what kind of evidence should (and should not) be submitted to win a case. We’ll also learn what is meant by the requirement that a person seeking a License Reinstatement prove their case by “clear and convincing evidence.”