Michigan Criminal Defense Lawyer Blog
As a Driver’s License Restoration Lawyer, a good chunk of the inquiries I receive comes from people who cannot be licensed in another state because of some hold on or problem with their Michigan Driver’s License. Whatever other state they’re currently living in, they discover that no License can be issued there until they “clear up” their Michigan License. This article will focus specifically on those cases where the reason for the Michigan hold or problem is multiple DUI’s.
Under Michigan Law, 2 DUI’s within 7 years results in the Revocation of the Driver’s License for a minimum of 1 year. 3 or more DUI’s within 10 years causes the Driver’s License to be Revoked for a minimum of 5 years. When we say “for a minimum of” it means that the person cannot even file an Appeal for a License Restoration until that much time has passed, but will never be Licensed until such Appeal has been filed and won. In the real world, this means that many people, particularly those who are no longer living in Michigan, wait considerably longer than the minimum Revocation period to pursue their Appeal.
If a person is not completely clear about their eligibility to file a License Appeal, the first thing they should do is obtain a copy of their Michigan Driving Record. This link will help in that effort.
Once someone has moved out of Michigan, they are no longer eligible to Restore a Michigan Driver’s License, and must instead obtain a “Clearance” from the Secretary of State in order to have a License issued in another state.
For the person who now has an address in a different state, there are 2 ways to go about the Appeal:
The first (and better way) is to file the traditional, Request-for-Hearing Appeal which requires them to reappear in Michigan for a reexamination. In my Practice, all such cases are scheduled for a Hearing at the Michigan Secretary of State’s Driver Assessment and Appeal Division’s Livonia office.
The other method involves filing for an Administrative Review which allows the person to skip the Hearing and just submit the various and required documents and wait for a decision.
I am not a fan of the Administrative Review. In fact, I strongly discourage it.
It is my hope that in explaining this, the prospective Client will either see things my way, or at least trust my experience and judgment enough to be willing to come back to Michigan in order to properly handle (and win) their License Appeal.
What follows is an examination of why I favor in-person Hearings so strongly for those who have moved out of state and need to obtain a Michigan Clearance in order to have a Driver’s License issued in another state:
When an Administrative Review is filed, is goes to Lansing, where it is read by a Driver Assessment and Appeal Division (DAAD) Hearing Officer. Based soley upon the documents submitted, the Hearing Officer will decide the case, governed by the following Rule 13 of the Driver License Appeal Division General rules, which I have set forth below:
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.
When a person appears for an in-person Hearing, those same issues are at play, but at least they have a chance to explain themselves. In every Hearing, there are certain questions that will always be asked (for example, “when is the last time you consumed any alcohol?”) by every Hearing Officer, and then there are some that are unique to each individual Hearing Officer. Because I conduct all of my Hearings in the DAAD office in Livonia, I know what questions will be asked by each particular Hearing Officer there, and a good part of the Hearing Preparation process is dedicated to making sure my Client is ready to go in front of that particular Hearing Officer to whom their case has been assigned.
At the Hearing itself, beyond asking my own questions when taking testimony, I pay close attention to the questions being asked by the Hearing Officer. If I think my Client needs to clarify something, then I’ll return to questioning them and make sure the Hearing Officer has the information he or she was looking for, and that it was presented properly. You simply cannot do that by sending a pile of papers to some unknown Hearing Officer in the State Capitol.
How can a person ever anticipate what is more important to one Hearing Officer over another, and then make sure their paperwork adequately addresses that, when they have no idea who will be reviewing it? The answer is simple, and cold; they cannot.
Thus, filing for an Administrative Review is really comparable to “flying blind.” And just like “flying blind,” while it is possible that a person can get a good outcome (or land safely), when it happens, it’s always a matter of sheer luck.
Beyond the fact that a person gives up the opportunity to clarify or explain anything which the Hearing Officer may want to know (and remember, the case must be proven by “Clear and Convincing Evidence,” meaning that if the Hearing Officer isn’t completely sure about something, then it’s certainly not “Clear and Convincing”), I have a big problem with Substance Abuse Evaluations done out of State. For that matter, I have a big problem with many Substance Abuse Evaluations done in Michigan, as well.
The Substance Abuse Evaluation is a document which must be submitted along with either a Request for a Hearing, or when someone files for an Administrative Review. It’s a specific, State form. In order to understand how important this document is, the reader should carefully review the web pages to which I have linked in this article. However one chooses to describe it, the Substance Abuse Evaluation truly is the very foundation of a License Appeal. If it is not good, and strong, then the whole case collapses.
I typically refer my Clients to a particular, local Clinic in order to have this document completed. By the same token, I have no problem with, and in fact every confidence in, those Evaluations completed by a local, hospital-based program, like St. John Health System’s Eastwood Clinics. Beyond these few agencies, however, I see crippling problems with Evaluations done elsewhere.
Let me be very clear on this point: I am not talking about sending someone to a Clinic where I think they’ll get a favorable Evaluation. In fact, the DAAD will see right through that. That’s a guaranteed way to lose an Appeal. Instead, I’m talking about what might seem like the exact opposite; making sure the Client gets a comprehensive, honest and thorough evaluation. Remember how I said that the Evaluation is the foundation upon which a License Appeal is based? Well, the DAAD only gets one piece of evidence that is not necessarily and understandably biased; the Substance Abuse Evaluation. Think about the Letters of Support, for a moment. Who writes them? Family and friends who, understandably, want to help. The Substance Abuse Evaluation, on the other hand, is supposed to be done by an objective, professionally-trained person who signs off on what is presumed to be their honest, professional opinion.
Outside the circle of places that I know do a good job on the Substance Abuse Evaluation, I have seen problems that range from not completely and properly filling out the form (in which case the Appeal must be denied) to not having an understanding of what information the DAAD is looking for, and what information is irrelevant.
Let me use an example. Several years ago, I was contacted by someone who, at the last minute, decided to hire a Lawyer to go to her DAAD Hearing. She had her paperwork done, and was going to file it, and wanted me to tag along to the Hearing once she was notified of it’s date. When we spoke, I indicated that I wouldn’t even think of going to a Hearing where I didn’t review everything before it was filed, and I told her about my concerns with Substance Abuse Evaluations done beyond the circle of those places I was sure knew how to properly do them. She, in turn, assured me that her Substance Abuse Evaluation was wonderful; she told me that a family friend, who was a Psychiatrist, did it for her, and even wrote some extra pages.
She agreed to hold off on the filing until we met and I could review her paperwork. And, true to form, when we met, I saw a sure loss waiting for her if she filed the paperwork she had. That fancy-schmancy Substance Abuse Evaluation done by the good doctor was a disaster. Instead of listing an actual “Prognosis” in the space provided (a prognosis is the Evaluator’s best assessment of whether the person will continue to remain alcohol-free, and must be given in terms of “Excellent,” “Very Good,” “Good,” “Guarded,” “Fair,” or “Poor.”) there was a rambling group of paragraphs outlining her commitment to remain sober. In other words, the Evaluation did NOT contain an actual Prognosis. Had she submitted it, that error alone would have absolutely guaranteed that her Appeal would have been denied.
There were other problems with her Evaluation, as well, but given that it was already a sure loser, they only added insult to injury. Her Letters of Support were not specific enough regarding the time frame in which the writers observed her abstinence from alcohol, and instead fell into the trap of being what are called “good guy” letters, essentially praising her goodness as a person, her remorse for her prior DUIs, and her need for a License, all of which, however heartwarming, is totally irrelevant to a License Appeal. Again, the reader should take the time to read my web pages regarding the Letters of Support to which I’ve linked in this article.
Now, given the difficulty of getting a specific State of Michigan form properly completed here, in Michigan, how likely do you think an out-of-state evaluator is going to be to do it correctly? Even if that person is really good at doing them in their own state, that does not mean they understand the nuances of doing a Michigan Evaluation, nor do they have any idea what the DAAD is really interested in, or what they consider irrelevant.
This all means that I prefer the Client to come to Michigan, meet with me for about 2 and ½ to 3 hours (yes, you read that right: 2.5 to 3 full hours), go and get an Evaluation done here, then go home. Coordinating with my Staff and the Clinic, I will meet with the Client the very day they have scheduled their Evaluation so that they don’t have to spend more than a day back here in Michigan. Once the Evaluation has been prepared, I’ll review it to make sure that it is complete and good to go. In the meantime, I’ll also make sure the Letters of Support are done properly. Once the paperwork is complete (and good) we’ll file the Request for Hearing, and wait to be notified of our Hearing date. After we have received notice of the date, and know to which Hearing Officer the Appeal has been assigned, we’ll prepare by phone for an hour or so shortly before they come back to Michigan to attend their Hearing.
I know that sounds like a lot. Consider the alternative, however. Aren’t 2 quick trips back to Michigan worth getting this all done right the first time? Not that I’m being flippant about it, but for those dead set on trying the Administrative Review, I say go for it. Then call me when that doesn’t work out.
And afterward, bear in mind that whatever shortcomings or problems cropped up that resulted in the initial denial will have to be addressed in the next Appeal. To understand what I mean, the reader should review another of my Blog articles about DAAD denials, and how the 2nd try is definitely not the charm.
Anyone outside of Michigan who needs to obtain a “Clearance” of their Michigan Driver’s License so that they can obtain a License in another state should spend the time necessary to read the License Restoration Materials on my Website, and the numerous articles I have written on this subject on my Blog. Then, they’ll have a pretty good understanding of why I discourage Administrative Reviews and favor in-person Hearings in License Restoration cases.