Michigan Criminal Defense Lawyer Blog
Ignition interlock violations seem to surge in cycles, and I have recently seen more than I can ever recall. Unfortunately, a lot of the calls I get are from people who have opened their mail to find out that they lost a violation hearing after having tried to handle it themselves, or with some lawyer who does not concentrate in driver’s license appeals. As a bona-fide Michigan driver’s license restoration lawyer, I’m putting this article up to warn the reader of the dangers of trying the low-budget approach to handling an interlock violation because the stakes boil down to saving your license, or losing it completely.
In other articles, I have examined some of the reasons underlying an ignition interlock violation. There is no reason to repeat all that here. The simple fact is that if you receive an ignition interlock violation, you also discover that your license is being revoked all over again, and you have to request a hearing to get it back. If you fail to win your hearing, you not only lose your license, but will also place an obstacle – potentially huge – in the path of ever getting it back again. If there was ever a time to do something the right way, it’s when you’re the Secretary of State notifies you of an interlock violation.
Probably the first and biggest mistake people make is thinking that the point of a violation hearing is to go in and explain things. That will not work. On this point, I have to be clear: In a violation situation, you have essentially been accused of doing something wrong. The state, meaning the DAAD (the Michigan Secretary of State Driver Assessment and Appeal Division) takes this so seriously that it doesn’t just threaten to take your license away; instead, the DAAD promptly revokes it again, and then informs you that the only way you can get it back is to request and win a violation hearing. This is a legal proceeding; you don’t just “explain” things. You either win, or the state will keep your license.
First, you have to timely request a hearing. Even if you do, you absolutely cannot prevent your license from being revoked all over again. In other words, you won’t even be able to drive to your own violation hearing. On top of that, once your license has been re-revoked, you stop accumulating credit for the mandatory minimum one-year on the interlock. This means that if you have already spent the first six months on the interlock, and then you get violated, you’ll have to wait the usual 10 to 12 weeks from the request date to get your violation hearing date. If you win, you will have to wait at least another 2 weeks thereafter to get your decision in the mail, you will lose those 12 to 14 weeks of time on the interlock and restricted license that you will have to make up. Accordingly, the date when you can get off the interlock and go for a full license will be pushed forward by at least another 3 more months. And that’s assuming you win; if you lose, you’re pretty much done…
As I noted at the outset of this article, my office gets plenty of calls from people who have already lost a violation hearing. They want to know what can be done now. Can I appeal to the circuit court? A circuit court appeal is always legally available, but is almost never worthwhile. In fact, in my entire career, I have only taken one case where a person has lost a violation (this fellow went in on his own) and appealed the matter to circuit court. I won that case, but it stood out as very exceptional; the basis for the appeal hinged on the scientific difference between the dissipation/evaporation of mouth alcohol versus the metabolization of alcohol actually consumed by a person. Even though the science was on my side and I convinced the Judge to agree, my client, having gone before the hearing officer on his own to “explain” things, didn’t do as well.
The cruel irony is that most of the people who challenge a violation and lose are not guilty of drinking. That fact, of course, makes the defeat harder to accept. Even worse, many of these violation cases could have been won if the person had called me first, rather than later. While concern about drinking is always at the very top of the list for the DAAD, it is not necessarily the only, much less the most important consideration in a violation proceeding.
Let’s look at a simple example: Assume that Dan the Driver has a rolling retest (meaning a missed or skipped test) violation. Dan goes in to the DAAD to “explain” things, assuring the hearing officer for all he’s worth that he hadn’t been drinking (there are certain scientific ways to prove this in many cases, but they are generally not known to the public at large). Even if the hearing officer is inclined to believe that Dan hasn’t used any alcohol, the hearing officer will have to remind him that the violation itself is for missing the rolling retests. Sure, the implication is that Dan was drinking, and he may have convinced the hearing officer, even in the absence of any scientific verification, that he wasn’t, but Dan will be told that part of the “deal” with a restricted license and an interlock is that you have to take the test whenever required.
This is kind of like finding out the lifeguard at the pool left his or her post for a few minutes. When confronted by the boss, the lifeguard points out that nothing happened when he or she was gone; there were no emergencies or problems. The boss then fires back that the lifeguard’s job is to be there, and whether or not anything happened in his or her absence isn’t the point. The point is just to be there, period. The same thing holds true for rolling retests.
I have always been a strong believer in NOT taking money to do something a person can do on his or her own. Frankly, I hate it when anyone takes money for something that a person can easily do without much help. Most of the time, for example, a person can easily do a power of attorney for free. Similarly, with just a little effort, a person can do a quitclaim deed on his or her own. Even though I don’t do any kind of legal work like that, if I did, I could never imagine taking someone’s money for things that simple. Interlock violations are very different. The way I see it, if I take a violation case, at least my client can take comfort in the knowledge that absolutely everything that can have been done will, in fact, be done.
When it comes to interlock violations, however, all too often I see the losing consequences of the “do-it-yourself” approach. I see those same consequences when a person hires a cut-rate lawyer who doesn’t specialize in license appeals. When dealing with a positive alcohol test, for example, there are things that can be done, even well after the fact that can be presented as evidence that the result in question was a “false positive.”
Beyond winning the violation hearing, part of my job, in certain “close” cases, is to persuade the hearing officer to simply reinstate the person’s license, and not add on any additional period of restriction. Thus, in our example with Dan the Driver above, the hearing officer may be inclined to reinstate Dan’s license, but also order that his interlock and restrictions be extended for an additional 6 months, meaning that Dan will have to drive a total of 18 months on a restricted license and with the interlock. To be clear, in any case, that beats completely losing your ability to drive, but if it can be avoided at any cost, then every effort should be made to do so.
If there is one problem with my analysis, it’s that some readers may think his or her violation is different, simple, or straightforward, and that he or she can easily go in and “explain” things. This often happens when there is a “tamper/circumvent” allegation, and a person had some mechanical problem or some work done on his or her car. One of the hearing officers once pointed out that he had a case where some guy’s battery was disconnected for only a few minutes, and it turned out that in that short time, he had rigged the interlock so that it would automatically report negative (.000) breath test results, even when he drank. As a result, even in a violation where a few minutes are not completely covered and explained, the unproven moments are enough to sustain a violation and result in a person’s license being re-revoked.
The takeaway here is pretty simple: If you’re facing a violation, don’t try to do things on your own, or with some attorney who thinks his or her best quality is being the cheapest. If you go that route, and you ultimately win your appeal anyway, then good for you. If you wind up losing, however, the few bucks you’ve saved won’t even begin to compare the headache you’re going to have arranging rides all over again, not to mention the added uphill battle you’ll face if you ever want to go back and try to win your license back another time.