Michigan Criminal Defense Lawyer Blog
About half of my Driver’s License Restoration Clients reside out-of-state. These people can be divided into 2 categories:
- Those who left Michigan with a Revoked License due to multiple DUI’s, and who have been unable to obtain a License outside of Michigan, and
- Those who were able to obtain an out-of-state License but are then unable to renew it due to a subsequently discovered Michigan “hold” on their Driving Record.
The majority of people fall into the first category: those who are unable, right out the gate, to obtain an out-of-state License. This article will focus on that smaller group in the second category: those who were first able to obtain, but were thereafter unable to renew, an out-of-state License.
When someone who has left Michigan, and thereafter obtained a License in a different state contacts me, they often express a sense of frustration, as if there has been some mistake. After all, they had a License in their new state, and they haven’t had any Arrests or problems. How can this be? Is there some mistake? Isn’t’ there something that can quickly be done so that they can renew?
Usually, the source of their difficulty is what’s called the National Driving Register. While the details and nuances of it’s operation are rather involved, and go beyond the scope of this article, what matters is that it exists, and means a person who has obtained a License in another state, and who has had their driving privileges Revoked in Michigan, will, at some point, be unable to renew that License until they clear Michigan’s “hold” on their driving Record. This is like a big, comprehensive national driving Record. To be clear, most people will simply be unable to obtain a License in another state because Michigan’s Revocation (seen by that other state as a “hold”) will show up right away. Yet in any number of cases, it does not, for some reason, and only catches up with the person later, when they go to renew their out-of-state License.
In terms of how it works, the inability to renew an out-of-state License requires the same “Clearance” that must be obtained before the usual, Revoked because-of-multiple-DUI’s driver can obtain a License anywhere. Except for the fact that an out-of-state resident will seek the ability to obtain a License in a state other than Michigan, whereas a Michigan resident will seek Restoration of his or her Michigan Driver’s License, the proof required to win such an Appeal is identical.
To put it another way, a person who still lives in Michigan will go to the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) to have their Michigan License Restored. A former resident will go to the DAAD seeking a “Clearance.” They both have to prove the same things.
Michigan residents seeking a Restoration of their Driver’s License will have to go through a full-blown License Appeal, including an actual License Appeal Hearing conducted before a DAAD Hearing Officer. These Hearing Officers are licensed Attorneys who are technically classified as “Administrative Law Examiners.”
Those out of state can, and SHOULD do the same thing, but they also have the option of skipping the Hearing and doing an abbreviated Appeal called an Administrative Review. The problem, and it’s a big one, is that the VAST MAJORITY of Administrative Reviews lose. In fact, in the year 2010, the DAAD received 875 Administrative Reviews, and it DENIED 650 of them! That’s a 75% LOSING RATE! That’s just freaking incredible!
By contrast, in the year 2010 (a somewhat subdued year for my License Restoration practice), I filed and won over 70 License Appeals. I won every case I filed, giving me a 100% win rate. Beyond that, I have a guarantee that I’ll win. A rather good chunk of those wins were for out-of-state Clients. I did that in each and every case by going in for a live, in-person Hearing. I have all my cases set for a live Hearing in the Livonia Office of the DAAD. There are 5 Hearing Officers there, and I know each one rather well, having appeared in front of them countless times over the years.
As I have pointed out in other articles, I DO NOT believe in video Hearings. To put it bluntly, I think they suck.
A few months ago, a Secretary of State Branch Office “Super Center” about 4 minutes from my Office opened a video terminal that would allow me to sit in a room with my Client and conduct a License Appeal Hearing with the Livonia Hearing Officers by closed-circuit TV, which, in this case is like a crappy web cam, circa 1998.
II do not and will not do that. Instead, I will happily make the hour drive to Livonia in order to Appear in-person. A live Hearing is superior to a video Hearing in every respect.
Over the years, I have been asked too many times to count by those who live out-of-state to help them do an Administrative Review. I’ve been offered my full Fee ($3000) to do it.
But I will not. I’m in this to win, and Administrative Reviews simply present a 3 out of 4 chance of losing. Why would anyone take such odds?
By the same token, I’m the last guy who would try and talk someone out of trying it. If you’re so inclined, then go for it! Chances are (like 3 out of 4) that you’ll call me the next year, when you decide to do it right. That may sound somewhat harsh, but I’d rather deal with someone who has no doubt abut how to proceed rather than waste my time trying to convince them of that.
Of course, the principal problem after an Administrative Review is lost is that whatever errors caused that first, statistically-doomed Appeal to lose in the first place will have to be corrected, or fixed, in order to win the next time around. Sometimes, those errors can be substantial, although, in truth, most that I encounter are rather easy, for me at least, to remedy.
Often, those people who have obtained a License in another state mistakenly assume that the DAAD will look favorably upon that. “I’ve been driving for ‘X number’ of years, ” they’ll say, “and I haven’t had any trouble. No tickets or DUI’s or anything.”
This misses a very important point. A pretty fair percent of those who pick up a 3rd or subsequent DUI do so without a valid License. Not having a License hasn’t stopped many people from driving drunk.
Instead, the DAAD tends to look rather unfavorably upon someone who obtained a License in another state, especially if they got that License BEFORE the minimum period of any Michigan Revocation has elapsed. In other words, if the state pulls someone’s License for a minimum of either 1 or 5 years, and before that respective time period has passed, the person was Licensed in another state, the DAAD will feel that the person basically skated out of their mandatory minimum legal punishment. Filing an Appeal in Michigan as soon as another state’s DMV refuses to renew a License because of a Michigan hold, and where the person DID NOT go without a License for at least the minimum period of a Michigan Revocation, is not a good plan. The state is generally NOT inclined to waive, or bend its rules for someone it sees as having snuck under the radar, so to speak.
In those cases where a person has obtained an out-of-state License AFTER at least their mandatory minimum Michigan Revocation period has gone by, the DAAD, while not necessarily giving them “credit” for having driven without incident while the out-of-state License was valid, will at least NOT hold that against them.
This means that having obtained an out-of-state License before becoming unable to renew it because of a Michigan “hold” doesn’t provide any advantage. At best, it can be a non-issue. At worst, it can work against the person filing the License Appeal.
For all of this, and whether a person files an Administrative Review, or comes back to Michigan for a full-blown License Appeal Hearing (the better route, in my opinion, AND statistically speaking), they still face the same legal issues. In order to win any License Appeal, a person must satisfy what is know as Rule 13, which provides that:
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.
As I have pointed out in many of my other articles in the Driver’s License Restoration section of this blog, the real meaning of Rule 13 can more or less be boiled down to this:
A person filing a License Appeal will be Denied unless they prove, by Clear and Convincing Evidence, that:
Their alcohol problem is under control, and
Their alcohol problem is likely to remain under control.
This, in turn, can fairly be simplified, or translated even further to mean that:
They haven’t had a drink since “X” date (at LEAST 12 months before any Appeal is filed), and
They are a safe bet to remain abstinent and sober, meaning alcohol-free, for the rest of their life.
It’s hard enough to prove this with the correct documentation and proper preparation for a live Hearing. Proving this on paper is even harder. That’s why 3 out of 4 Administrative Reviews were Denied in 2010. Nor is it likely that, once the numbers are released, 2011 will prove to be much different than 2010. The Denial rate for Administrative Reviews always hovers around 75%.
What is important is that anyone considering a License Appeal of any kind understands the process, and understands that the complexity lays not so much in the difficulty of that process, but the amount of detail involved.
In the end, with patience, and perseverance, a person can get back on the road, even if the Michigan “hold” means that they will be unable to outright renew a License previously issued in another state. As the saying goes, it is what it is. The question that remains is, what are you going to do about it?